Michael Dempsey discusses the growing trend in the use of the Proceeds of Crime Act 2002 by local planning authorities to obtain confiscation orders against those committing planning offences and examines a recent case that serves as a reminder that POCA should not override or unduly influence other planning decisions.
A growing trend in planning enforcement has been the use of the Proceeds of Crime Act 2002 (“POCA”) by local planning authorities in order to obtain confiscation orders against those committing offences under the Town & Country Planning Act 1990. This blog considers the recently reported Criminal Court of Appeal case of R v The Knightland Foundation & Friedman , where a local planning authority’s prosecution for non-compliance with an enforcement notice collapsed on account of the authority having been improperly influenced by the prospect of obtaining a POCA order.
POCA: A recap
POCA introduced the ability for prosecuting authorities to obtain confiscation orders following successful conviction. The purpose of these orders is to allow the recovery of the financial benefit that the offender has obtained from his criminal conduct and they can be for substantial sums, especially where a criminal lifestyle is established.
Whilst the powers in POCA were intended for “career” criminals and organised crime, they apply to any offence and so can be used in planning enforcement cases as a means to deal with those who flout enforcement notices for financial gain. This has seen local planning authorities successfully obtain confiscation orders in a range of planning enforcement cases. The latest high-profile example is a confiscation order of circa £450,000 obtained by Ealing Council against a “beds in sheds” landlord in Southall, following a successful prosecution for breach of enforcement notice .
R v The Knightland Foundation & Friedman
This case concerned a property in the London Borough of Islington (“the council”) which the owners had converted to 18 self-contained residential units rather than the 14 bed HMO (house in multiple occupation) that they actually had planning permission for. The council served an enforcement notice requiring physical alterations to the property and the unauthorised use to cease. The notice was not complied with and the council sought to prosecute the owners accordingly.
So far so straight-forward. Except that the owners had submitted a planning application to use the property as a hotel in order to regularise the position and officers of the council’s planning team indicated that they were likely to recommend approval of the same. Officer support for the principle of the proposed hotel in fact continued even after the summonses for the breach of enforcement notice had been issued.
The council’s planning team suddenly changed its position, though, following the intervention of the council’s enforcement team, which was concerned about the potential impact of granting permission on the prosecution and any associated POCA order. The council then refused the application and pressed on with the prosecution of the owners.
At trial His Honour Judge Simon stayed the prosecution proceedings as an abuse of process in the Court. This was on the basis that he considered that the prosecution had been tainted by the improper way that the application and prosecution had been handled, where in his view the focus had been on maximising the returns to the council under a POCA order.
The council appealed this decision but the Criminal Court of Appeal refused leave for the appeal, holding that the judge was entitled to find that the council did not exercise its discretion to prosecute appropriately and that to allow the prosecution to proceed amounted to an abuse of process. In particular, in deciding to prosecute, the council had failed to take account of the possibility that the position at the property could be regularised by the grant of the application and, conversely, had improperly taken account of the possibility of obtaining a POCA order to the council’s financial advantage. This had also improperly influenced the determination of the planning application.
The facts of this case are highly unusual and it is clear that the trial judge was less than impressed by the council’s witness evidence around both the decisions to prosecute and to refuse the planning application, which he described as “confused and confusing”.
Even so, one may still query why the owners were effectively let off when there seems to have been no doubt that they were in breach of the enforcement notice and therefore guilty of the offences for which they were being prosecuted. Furthermore, although the council’s planning team had indicated its support for the hotel planning application, officer opinions are not legally binding, so it does not follow that planning permission would have been granted, and, in any event, the grant of planning permission would only have regularised the position going forward.
The answer to all of this lies in the weighty nature of the public powers that prosecuting authorities wield and the rule of law itself. It is fundamental that prosecuting authorities behave fairly and in the public interest; even more so where they are in the relatively unusual position of also having the power to regularise the offence (as, of course, local planning authorities are). In the circumstances, the Court found the council to have fallen short of these necessarily high standards.
So where does this leave the use of POCA in planning enforcement?
The good news for local planning authorities is that R v The Knightland Foundation & Friedman does not change their ability to make use of POCA. However, the case does serve as an important reminder that a POCA order is only a tool, not an end in itself, and certainly not something that should override or unduly influence other planning decisions.
1  EWCA Crim 1860
2 Details taken from a press notice dated 22 November 2018 on Ealing Council’s website