PLANNING ENFORCEMENT AND THE PROCEEDS OF CRIME ACT 2002
Local Planning Authorities (LPA) are increasingly and successfully applying for Confiscation orders under the Proceeds of Crime Act 2002 which gives them powers to confiscate any financial gains which are made as a result of breach of planning control.
If an Enforcement Notice is validly served and not complied with, the notice comes into force and the offender is then open to prosecution. Non-compliance with an Enforcement Notice is a criminal offence. The maximum punishment was a fine of £20,000 however under the Proceeds of Crime Act the punishment can potentially be much more severe and money earned through breaches of a valid Enforcement Notice can be confiscated.
For example, if an Enforcement Notice requires the reinstatement of a house that is being used for multiple dwellings in breach of planning control to be reinstated to a single dwelling house and is not complied with, the LPA could apply for an order to confiscate the rental income received from the property whilst it was being used as multiple dwellings.
The law and procedure
- Where a breach of planning control is identified the local planning authority can serve an “enforcement notice” on the landowner and those allegedly causing the breach of planning control.
- The enforcement notice normally requires them to either cease the activities or take such steps as may be specified in the notice to remedy the breach.
- A breach of planning control is generally not, in itself, a criminal offence
- However planning control breaches become criminal where they continue to occur in breach of a valid effective enforcement notice.
- The Proceeds of Crime Act 2002 (“the Act”) provides that, following conviction of a criminal offence, a confiscation order may be made under certain circumstances
- A confiscation order enables authorities to recover any proceeds of crime.
- A local authority may claim a substantial part of any money recovered under a confiscation order by an application to the magistrates’ court.
- If a prosecution is being dealt with in the Magistrates Court the LPA will need to request for the matter to be committed to the Crown Court.
- The Crown Court must then decide whether the defendant has benefitted from his particular criminal conduct. In either case the benefit obtained must be not less than £5000.00
- If the court makes a confiscation order the recoverable amount is equal to the defendant’s benefit from the conduct concerned.
- The prosecution normally makes a statement of information relating to the defendant’s benefit allegedly obtained. In addition, the court has a wide power to order the defendant to provide any information it requires to assist in making the decision.
In summary and for the reasons set out above, treating breach of planning law as a routine business risk likely is simply not an option and is likely to prove very expensive and otherwise damaging. Enforcement Notices must be taken seriously and immediate advice should be sought.
If you are a landlord with any kind of property law dispute or problem, whether planning law or otherwise, I can help. Please contact me for a free initial discussion.
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