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Oliver Bussell

Partner - Sevenoaks and Ashford

Planning and the Proceeds of Crime Act

The Proceeds of Crime Act 2002 (POCA) is not a piece of legislation you might immediately think relevant to planning, but its use is growing in popularity with local planning authorities of councils. It should give landowners, and objectors, pause for thought. The Act allows quantification and recovery of monetary gain from those that benefit from breaches of development control – becoming potentially very costly.

Development without planning permission

Of course it is not a crime to carry out development without planning permission and there are a variety of means by which a breach of development control can either become immune from enforcement or can be regularised, whether or not with the cooperation of the council. But the criminal law has always lurked in the background of planning. For example it’s a criminal offence not to either comply with or appeal an enforcement notice, or to supply false or misleading information on replies to a planning contravention notice. And councils can now, in appropriate cases, use POCA to obtain a confiscation order at the same time as a prosecution, thereby recovering the benefit gained from the criminal conduct.

Confiscation order

The test for a confiscation order is set out in Part 2 of the Act. The defendant must have been convicted of an offence, after which the court can of its own volition or on application by the prosecutor, make an order. The test to be met is that either the defendant has a criminal lifestyle or that he has benefitted from his particular criminal conduct. With that test met the court must make an order for the recoverable amount, though it must take into account whether making an order would be disproportionate. But the criminal lifestyle test is a bit of a red herring in most planning cases. Defendants might not meet the test – but they don’t need to either. It can be enough that they have benefitted from their conduct.

There is another point to bear in mind which is that where a confiscation order has been made, the council receives just over a third of the confiscation award – which can be a substantial sum. That may sharpen the council’s appetite for enforcement – though they are not actually permitted to use confiscation orders as a way of generating additional cash resources. That can be a tricky line to tread but the focus for councils is the remit given to them as development control authority by statute, exercising that properly and not having regard to any financial incentive.

Case examples

One leading case is that of Del Basso & Goodwin v R in which two individuals were operating a business park and ride service from the grounds of a football club. A planning application was rejected by the council: the activity continued and an enforcement notice was duly issued. Non-compliance led to confiscation proceedings being issued. An order was made against one of the individuals for £760,000. The defendant’s argument that this far exceeded the profits he made on the scheme was irrelevant: it is the gross benefit and not simply the profit obtained or that could have been earned legitimately that is taken as the benefit.

Perhaps the most notorious example of POCA being used in a planning-related context occurred earlier this year in Dorset where a homeowner was ordered to pay £40,000 after chopping down a tree in his back garden that was the subject of a tree preservation order. He ignored that order and cut several branches off the tree so that his back garden and specifically a Juliet balcony, was no longer shaded by the tree. Poole Borough Council prosecuted for the increase in the value of the property.

What should landowners do?

These cases serve as a cautionary tale that development control is not something to be taken lightly and does come with potentially very serious consequences. Landowners must ensure either that development is authorised or, if it is not, that the person with control of the land is engaging constructively with the legal mechanisms to challenge enforcement. Failure to comply could lead to prosecution.

Equally it is important for councils to ensure that they are following correct procedure, that they are acting fairly in taking prosecutions forward and that the financial advantage they will receive on a successful prosecution plays no part in their decision to take action.

If you are considering making any changes to your property or if you are in receipt of enforcement proceedings and need help please contact our specialist planning law team for advice:

Oliver Bussell
Partner
T. 01732 448050
E. oliverbussell@rixandkay.co.uk

Shehla Pirwany
Trainee Solicitor
T. 01732 440852
E. shehlapirwany@rixandkay.co.uk

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