Judges in criminal courts have the task of deciding the sentence for an offence. In terms of planning, legislation such as the Planning Act (NI) 2011 set out the maximum sentences available.
The common law (a 'body of law' based on court decisions) has developed the principles of sentencing, requiring judges to consider the individual facts of a case and aggravating and mitigating factors in order to reach a decision.
The purpose of sentencing guidelines is to increase the transparency and consistency of such judicial decisions and to help members of the public to understand more about the sentencing process.
Sentencing Guidelines
The recently updated Magistrates' Court Planning Offences Guidelines contain the following:
1. Breach of a Tree Preservation Notice
2. Breach of Enforcement or Stop Notice
3. Damage to Tree in Conservation Area
5. Non-Compliance with Planning Contravention Notice
6. Working on Listed Building without Consent
This legal insight does not address the guidelines in relation to trees or listed buildings. Rather it focuses on the most common offences: 1) breach of enforcement notice or stop notice and 2) non-compliance with a planning contravention notice.
TLT also represent numerous clients in relation to environmental offences for which there have been sentencing guidelines for many years. The publication of sentencing guidelines for planning offences no doubt signals a more consistent approach across various Magistrates Courts and likely an increase in average fines which is what we saw after the introduction of environmental sentencing guidelines.
Fines for planning offences
The Planning Sentencing Guidelines set out the starting point and maximum fines for the following offences:
| Offence | Starting point sentence (based on first time offence) | Maximum sentence |
| Section 147 of the Planning Act (NI) 2011: non-compliance with enforcement notice | £15,000 fine |
Magistrates Court: £100,000 fine Crown Court: unlimited fine |
| Section 149: without planning permission, carrying out any development on land by way of reinstating or restoring buildings or works which have been removed or altered in compliance with an enforcement notice | Fine (unspecified) |
Magistrates Court: £7,500 fine |
| Section 150: contravention of a stop notice | £15,000 fine |
Magistrates Court: £100,000 Crown Court: unlimited fine |
| Section 134: non-compliance with a planning contravention notice | Fine (unspecified) | Fine |
It is important to note the "starting point". This is the
baseline for a fine that the Court will then vary either up or down
depending on "aggravating" or "mitigating"
factors. In simple terms, these will increase the ultimate fine
whereas mitigating factors provided by the defence aim to reduce
the 'starting point' fines.
Mitigating factors might include an early plea, co-operating with the enforcing authority or dealing with the breach (for example by obtaining planning permission or removing the unauthorised development in a timely manner). The Court has listed some examples of possible aggravating factors which include:
1. Breach of planning law was for financial gain
2. Continuing offence for financial gain
3. Offence being committed on a commercial basis
4. Continuing offence causing harm and nuisance to third parties.
Under the Planning Act (NI) 2011, the Court must have regard to any financial benefit which has accrued or appears likely to accrue in consequence of the offence (Sections 147(9) and 150(16)). A commercial enterprise that commits an offence is more likely to be seen as gaining a financial benefit than a private individual.
Further, in the case of of R v Bloor [2020] EWCA Crim 40, the Court said:
"... the [financial] benefit that has been achieved may provide a convenient starting point in assessing the level of fine, subject always to securing the objectives of punishment and deterrence".
Increasingly we are finding Courts in NI more alive to the issue of financial benefit, which can result in fines with even higher starting points than those listed above. Despite the maximum fine of £100,000, fines for less serious planning offences are generally at the lower end of the scale, but the publication of the new guidelines and in particular the "starting points" may well see substantial uplifts in penalties, particularly for more minor breaches where there is some element of commercial gain.
A common misconception is that you cannot be prosecuted for the same planning offence more than once, however this is not the case for planning offences and if the contravention is not addressed, a further prosecution can be brought. In such cases fines are likely to increase substantially. It is also wrong to assume that a live appeal against an Enforcement Notice or a retrospective planning application will prevent a summons being issued – we have dealt with numerous prosecutions running parallel to appeals or applications. Whilst this might ultimately be a mitigating factor, it is no defence to a prosecution.
It is therefore important to speak to solicitors at the earliest opportunity, and preferably before any enforcement notice is served. Certainly if a summons for planning breaches is served, urgent legal advice should be sought to understand the risks and potentially any mitigating circumstances that could be employed to minimise any penalty.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
