Planning POCA: High Stakes for planning breaches
Southwark Council has recently secured over £1 million under a Proceeds of Crime Act (POCA) order against a landlord who converted three flats into two cramped studios and bedsits.
The council originally brought a planning prosecution against a landlord, for illegally converting three flats within 2-4 London Bridge Street in 2010. He was fined and ordered to return the property back to its original condition. However, investigations by the council’s enforcement in 2015 and 2016 found that little had been done to address the original illegal work and further charges were brought in 2017. He was found guilty and this allowed the Council to seek a confiscation order. The Council will receive around one third of the confiscation amount.
Offenders also risk a prison sentence if they do not comply with a confiscation order, which makes this a powerful tool of enforcement for the LPA.
The use of the POCA by local planning authorities in order to obtain confiscation orders against those committing offences under planning legislation is a growing trend in England and Wales. Northern Ireland has seen the frequent use of POCA in environmental cases. Local Planning Authorities in Northern Ireland have been more reluctant to use the powers in planning cases; however, it is expected that this will change, and that we will see LPAs using POCA powers in planning cases soon.
Non-compliance with a planning enforcement notice (or a breach of condition notice) is a criminal offence. Normally, the recipient of an enforcement notice will have 28 days to lodge an appeal with the planning appeals commission. This will act as a deemed planning application and no further legal action can be taken until the Planning Appeals Commission has determined the case. If the notice is not successfully appealed, the local authority can prosecute the offender if they do not comply with the requirements of the notice, such a prosecution allows the LPA to apply for a confiscation order under POCA. The defences available to such a prosecution are extremely limited. It is therefore vital that professional legal advice is obtained at the earliest stage and before an enforcement notice takes effect. The increasing use of POCA makes the stakes very high.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.