A local planning authority may issue an enforcement notice where a breach of planning control has been identified and it is expedient to do so. An enforcement notice will generally require the occupier or landowner to cease the contravening activity and for the landowner to remedy the breach.
Enforcement notices may be appealed on a number of grounds, including:
a) Planning permission ought to be granted;
b) The matters complained of have not occurred;
c) The matters complained of do not constitute a breach of planning control;
d) The breach was immune from enforcement action; (etc)
Any appeal must be made before the enforcement notice comes into effect.
If the enforcement notice is not appealed, or an appeal is dismissed, non-compliance with the enforcement notice is a criminal offence.
Historically, local planning authorities could only pursue standard prosecutions against those who failed to comply with an enforcement notice, where the maximum penalty in the Magistrates’ Court was a £20,000 fine. Since 2015 new rules have meant that the Magistrates may now impose an unlimited fine. In determining the amount of any fine to be imposed, the Court is required to have regard to any financial benefit which has accrued in consequence of the offence.
In addition, the Proceeds of Crime Act 2002 introduced powers which mean that local planning authorities can now also apply to the courts for a confiscation order. A confiscation order allows local planning authorities to confiscate any financial gains which are generated as a result of planning law contraventions. Under an “incentivisation scheme” the local planning authority will get to keep a proportion of the proceeds confiscated.
A fine should not be related to the financial benefit from the offence under if it has already been the subject of a confiscation order, as this would amount to double-counting.
Whilst in the past failing to comply with an enforcement notice was seen in some Magistrates’ Courts as a minor matter, these changes now gives rise to a substantial risk of having the gross receipts of any activity conducted in breach of planning law being confiscated, it is therefore advisable that legal advice is sought as soon as an enforcement notice is received from a local planning authority.
Planning prosecutions often turn on technical points of law and depending on the circumstances it may be possible to successfully defend a planning prosecution even where, on the face of it, the notice has not been complied with. Where there is a possibility of the local planning authority seeking to recover financial gains it is worthwhile seeking the advice of a planning lawyer.
Examples of planning prosecutions and confiscation orders
- In the case of R v Del Basso and Goodwin [2010] EWCA Crim 1119, the defendants operated a park and ride facility without the benefit of planning permission. A confiscation order was made against Mr Del Basso in the sum of £760,000, as well as both defendants being convicted of breach of the enforcement notice and receiving fines of £20,000 each.
- In 2012, a man was ordered by a judge to pay out a confiscation order of £50,000 following illegally felling a neighbour’s protected pine tree which blocked the view of the sea from his home. He was adjudged to have benefited financially through an increase in the value of his home as a consequence of removing the tree.
- Runnymede Council also brought proceedings in 2012 against the owner of a sizeable green belt site following a long planning history involving various forms of unauthorised commercial uses. The defendant admitted to failing to comply with the enforcement notices at the hearing and was ordered to pay a confiscation order of £250,000.
- In July 2014, the Isleworth Crown Court handed down a £25,350 confiscation order to a London home-owner in relation to the construction of a large roof extension. The confiscation order was imposed to prevent the owner from obtaining a financial gain from his breach of planning control.
- The London Borough of Ealing prosecuted a homeowner after illegally converting his house into three flats and failure to comply with an enforcement notice. In April 2015, Harrow Crown Court imposed a confiscation order of £66,000 on the defendant to reflect the money illegally obtained by continuing to rent the property as flats after the enforcement notice compliance date expired. He was ordered to pay the sum within six months or face 21 months in prison.
- In another case, Harrow Crown Court imposed a confiscation order of £83,000 to a couple who had converted a property in Ealing into five flats without planning permission. The confiscation order reflected the money the couple had accrued by renting out the flats after the enforcement notice compliance date expired.In October 2014, Leicester City Council was successful in securing confiscation orders against multiple landlords and tenants as a result of breaching planning control and confiscation orders of £6,558 and £6,000 were handed down.
- In January 2016, Aylesbury Crown Court ordered a confiscation order of £21,000 to a family who had been unlawfully renting out an annexe behind their property to tenants, despite repeated enforcement action by Wycombe Council ordering them to using the building as a separate residential unit. In addition to the confiscation order, the family were ordered to pay £4,950 of fines and £25,000 in legal costs. The judge told the defendants that if they failed to pay the costs in full they could face a prison sentence of up to 13 months each.
Chris Tofts is a partner within the commercial property team in Truro with a wide range and depth of planning experience. If you would like to contact Chris, then please call 01872 265100 or email planning@stephens-scown.co.uk.