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Compliance with enforcement notices – The consequences

There have been a number of recent cases reported where local authorities have taken prosecution proceedings for non-compliance with an Enforcement Notice and then confiscation proceedings against developers for failing to comply with an Enforcement Notice that has become effective. 

In essence, if an Enforcement Notice comes into effect and a developer does not comply so as to take the steps required by the Enforcement Notice, then an offence is committed and a local authority could serve prosecution proceedings on the developer to secure compliance and to secure a conviction. 

The effect of a conviction for non-compliance with an Enforcement Notice is an unlimited fine and is triable either way. 

It should also be borne in mind that once a conviction has been gained by the local authority, failure to comply with the terms of an extant enforcement notice is a continuing offence on a daily basis. 

What has occurred recently is that if, as a result of non-compliance with an Enforcement Notice, a developer secures a benefit, then those benefits may be considered as proceeds of crime in the eyes of a local authority.  Once a conviction is secured an independent financial investigator often employed by the local authority will carry out investigations as to the level of the benefit received as a result of the criminal conduct and then seek to initiate confiscation proceedings at the same time as the conviction which are dealt with by the Crown Court. 

In those cases, what will occur is a full forensic examination of the benefit of the failure to comply with the notice and the benefit that is received can form the basis of a confiscation sum which would have to be paid as a result of the proceedings.  From recent press reports, a confiscation sum for 9 modest flats in a London Borough have extended to over £1million, with the company and/or directors facing imprisonment if that sum is not realised. 

Comment

There are clear and important consequences of a failure to comply with an enforcement notice which are far ranging, other than a fine and prosecution.  It should serve to place developers or landowners on notice that there is a clear need to comply with the terms of an enforcement notice once it is effective.

There are harsh sanctions that a local authority can seek to have imposed as part of confiscation proceedings.  

For any more information please contact Gareth Pinwell from our Planning Team on g.pinwell@ashfords.co.uk

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