This article first appeared in NAPE's (the RTPI's National Association for Planning Enforcement) August 2013 newsletter.
Confiscation orders under the Proceeds of Crime Act 2002 (POCA) are frequently used against fraudsters and drug-dealers to deprive criminals of the financial gain they have received from their criminal conduct. Less frequently used, is the power of local authorities to obtain confiscation orders against people who commit planning crimes, to deprive them of the financial benefit they have gained as a result of committing planning crimes.
With a few exceptions, breaching planning control is generally not a criminal offence, but such activities can become criminal where they continue to occur in breach of a valid, effective enforcement notice. If the notice is not complied with then the LPA has a number of statutory remedies it can rely on, including prosecutions and direct action.
Planning prosecutions are infrequently pursued by LPAs, mostly because a prosecution does not necessarily result in the breach being remedied and the fines are often insubstantial. Taking Direct Action can sometimes be the preferred course of action for an LPA, because the planning breach is remedied, albeit by the Council. A charge can be registered against the property to cover the costs of taking the action. Where LPAs carry out Direct Action, the local authority carries the costs of the action until such time as the property is sold, and subject to funds being available after discharge of any prior charges, only then will the local authority be reimbursed.
Herein lies the key advantage of obtaining a confiscation order under POCA. Not only is the offender punished by forfeiting the profits attributable to the planning breaches, but the local authority receives a share of those profits. Using careful judgement and thorough investigation, local authorities can use this tool to target known repeat offenders, creating a real deterrent against breaches of planning law, while at the same time recovering sums to cover costs of any necessary remedial action. This provides a useful tool to make Planning Enforcement self-funding, particularly in these difficult times.
Recently, POCA has been used by a few Councils to deprive planning criminals of their ill-gotten gains. Some examples:
* Hounslow Council in February 2010 obtained a confiscation order for c.£180k for flat conversions.
* In June 2010 Bishop Stortford Council obtained a confiscation order for £760k for a park and ride facility.
* Bexley Council in May 2011 originally obtained a confiscation order for c.£180k for proceeds from the sale of cars from the defendant's home but this was then reduced to £3k.
* Richmond Council in November 2011 obtained a confiscation order for c.£110k against a defendant for converting 3 houses into 16 flats
* Brent & Harrow in September 2012 obtained a confiscation order for £1.4m for converting a single house into flats.
* Runnymede in September 2012 obtained a confiscation order for £250k for using green belt land for commercial purposes.
* In January 2013 South Bucks DC obtained a confiscation order for c.£33k for unlawful operation of a car park in the Green Belt.
* Ealing Council in August 2013 obtained a £11k confiscation order for the illegal use of an outhouse building as rental property.
Once a valid effective Enforcement Notice is breached, a Council can start preparations to pursue a confiscation order under POCA. The initial preparations for the confiscation order are made in tandem with the prosecution, and an Accredited Financial Investigator will carry out all the investigations into the defendant’s financial situation. As soon as a conviction is secured, the confiscation order process will commence with an application by the LPA.
In addition to using POCA for breaches of valid effective enforcement notices, LPAs would be well advised to consider using POCA to deprive advertisers of their (not insubstantial) criminal gain when unlawfully displaying advertisements contrary to the Control of Advertisement Regulations 2007.
Another instance where POCA could potentially be successfully used, is in heritage enforcement cases where, for example, a Listed Building is demolished unlawfully and the owner’s land increases in development value as a result of the demolition. A confiscation order could be sought for the value of the increase in the land.
Seeking a confiscation order under POCA is a very useful remedy and so far underutilised by LPAs. However, with careful planning and thorough investigation, LPAs have much to gain from this powerful remedy.