Planning breach sentence based on ‘financial benefit’ was double counting

Stuart Jessop comments on the recent appeal against a sentence in R v Kohali.

The Court of Appeal in R v. Kohali [2015] EWCA 1757, dealing with an appeal against a sentence for an offence contrary to section 179(2) and (8) of the Town and Country Planning Act 1990, held that it would be wrong in principle to impose a fine in respect of the financial benefit from the offence under section 179(9) if it has already been the subject of a confiscation order, as this would amount to double-counting.

The court was dealing with an appeal against a sentence imposed by the Crown Court for a breach of a planning enforcement notice. In determining the amount of the fine, section 179(9) of the Town and Country Planning Act 1990 requires the court to have particular regard to any ‘financial benefit’ which has accrued or may accrue from the offence. The court held, however, that this provision does not fetter the judge’s discretion when sentencing and stated that the court’s obligation was to have regard to the financial benefit but that there was no obligation to order the full amount or even a large proportion of it. In this case the court held that the benefit gained by the appellant had been fully recognised in the confiscation order, which of course, seeks to deprive those who commit criminal offences of their ‘benefit from criminal conduct’.

It is clear that enforcement action for breaches of enforcement notices concerning planning law have become more frequent in recent years. Large breaches can often result in very significant confiscation orders. This case is important for those defendants who have been made subject to a confiscation order in respect of a planning enforcement breach but still fall to be sentenced to what might be a significant fine on top.