Financial benefit is broader than profit when imposing a fine for failing to comply with an enforcement notice.
On 14 January 2013 Mr Smith was fined £250,000 for breaches of s179(5) of the Town and Country Planning Act 1990 (one of the highest fines ever made against an individual for this offence).
Mr Smith was the occupier of a farm in South Yorkshire but was using it for mixed-use purposes; planning applications had been refused. A number of non-farming businesses were being run from the site and 50 people were employed. Half a million pounds had been spent on the farm but Mr Smith had made no profit by the time he was sentenced. Mr Smith did not provide any evidence of his financial circumstances prior to sentencing. (The breach of planning law continued and, ultimately, resulted in a 9 month contempt of court prison sentence being made against Mr Smith).
Section 179(9) TCPA 1990 was enacted to address concerns about commercial land owners benefiting from breach of planning law and provide a ‘sting’. It requires the court to have regard to any actual or likely financial benefit when determining the level of fine.
At Mr Smith’s sentencing appeal, decided on 27 June 2014, the Court of Appeal gave guidance about what can amount to financial benefit for the purposes of 179(9) TCPA 1990. Although financial benefit may not extend to an increase in capital value of the land the fact that Mr Smith had spent so much money on the land, even without any current profits, meant that he had obtained considerable financial benefit or was likely to.
Nevertheless, the appeal was allowed and the fine was reduced to £100,000.
Michael Paget acted for Mr Smith in the successful appeal.