Planning Offences

Planning Offences and the Proceeds of Crime Act 2002 (POCA)

Local Planning Authorities have woken up to the fact that it is possible to make planning offences pay, particularly when it comes to ongoing offences and persistent planning offenders.

Since 2010 there has been an increase in POCA Recovery Orders, and the largest ones range from between £31,000 and £1.4 million. It is important to remember that a Planning Authority can retain 37.5% of the confiscated sum, so this is an attractive proposition for any such Authority.

R v Del Basso [2010] EWCA Crim 1119, which is the key case in this area, effectively extended the remit of the Proceeds of Crime Act 2002 to planning offences. The 2002 Act was originally drafted to deal with organised crime and terrorism.
The Planning Authority will consider a POCA application (which are always dealt with by a single judge sitting in the Crown Court) if there is at last 6 months of continuing offences and assets which can be realised, e.g. property.

Some recent examples of successful POCA applications include:

• A landlord who converted two homes in the London Borough of Barnet into flats without planning permission was ordered to pay £75,636 (the £5,000 PCM gross rental and appreciation of the property value were taken into account);
• An unauthorised development on Greenbelt land allowed the Borough of Runneymede to secure a POCA Order in the sum of £250,000;
• Another landlord in the London Borough of Brent was ordered to pay £1,438,000 for converting one house into twelve flats. Under the Act (and particularly if the Authority can prove a continuing course of conduct), the Court can look back over the last six years of business dealings (whether it is a defendant company or a sole trader) and include that in its assessment of financial benefit.

Failure to pay the ordered sum will result in a prison sentence; a default term is always ordered when the full POCA order is made.

When will local authorities consider criminal prosecution?

The typical situations are:

• Where a building is erected, extended or altered without planning permission.
• Where the use of a building or site changed without planning permission, or does not comply with an ongoing requirement set by a planning condition.
• Where work is executed that does not comply with approved plans, or is in breach of a condition of the planning consent or permission.

These offences will apply to the builder and the person instructing them. The Local Authority will exercise its prosecution powers when enforcing planning and building regulations, listed building offences, Heritage and conservation prosecutions, tree protection orders, and unauthorised caravan sites.

These offences (depending upon the exact offence) can be tried in either the Magistrates’ Court or the Crown Courts and can lead to:

• Fines in the Magistrates’ Court of £5,000 per offence;
• Unlimited fines in the Crown Court;
• Up to 3 months imprisonment for listed buildings offences in the Magistrates’ Court, per offence;
• Up to 12 months for non-listed buildings offences and up to 24 months imprisonment for listed buildings offences in the Crown Court.

How can we help you or your company defend a planning prosecution?

We have long-established criminal, regulatory and property departments which have many years of successfully dealing with Local Authorities and these types of offences, acting for individuals and companies alike.

We have experts in planning offences, the Proceeds of Crime Act 2002, confiscation, and civil recovery, as well as bribery and corruption.

We can advise and help deal with the Local Authority when the issue initially arises in order to deflect or negotiate any possible prosecution; we can attend with you (or your employee) during interviews (generally under caution) with the Local Authorities; we can represent you during court proceedings; if necessary, we can prepare full mitigation in the event that you or your company pleads guilty; or we can robustly defend you, instructing the best advocates, during trial.

What can a local authority do?

• Prosecute – If they do so they must comply with all relevant criminal legislation, e.g. the Police and Criminal Evidence Act (1984), which is why it is vital to instruct lawyers with a criminal and regulatory background.
• Serve a Planning Contravention Notice – It is a criminal offence to ignore, fail to comply or give false information.
• Serve a Temporary Stop Notice (which effectively stops work for a maximum of 28 days) – Again, failure to comply with such a Notice is a criminal offence.
• Apply for a Court Injunction – Breaching this can carry a Penal Notice.
• Serve an Enforcement Notice (these have a right to appeal) – Again, failure to comply is a criminal offence.
• Serve a Stop Notice and an Enforcement Notice – Failure to comply can lead to criminal prosecution.
• Serve a Breach of Condition Notice – Failure to comply can lead to criminal prosecution.

Bribery/corruption and the planning/construction industry

Research in 2013 by CIOB and Transparency International states that one in three planning/construction professionals have been offered bribes and that such behaviour is rife within these sectors.

With the passing of the UK Bribery Act 2010 it is highly likely that the CPS and the SFO will pursue investigations and prosecutions in this sector which will lead to convictions, terms of imprisonment, and enormous reputational damage to companies and individuals alike.