It is now accepted that a Confiscation Order under The Proceeds of Crime Act 2002 ("POCA") can be applied for when someone fails to comply with the terms of an enforcement notice and financially benefits from their unlawful activity.
How has this development come about, and how does it help local authorities pursuing those who have failed to comply with an enforcement notice?
The leading case is Del Baso & Goodwin v R, a case where two individuals continued to run a park and ride service from the grounds of a local football club despite an enforcement notice being served requiring a cessation of the activity.
The operation of the park and ride operation had become an offence from the moment the enforcement notice was not complied with. The total turnover of the operation, not just the profits, was the benefit accrued to the defendants as a consequence of the offence. Judge Baker held that "Those who choose to run operations in disregard of planning enforcement requirements are at risk of having the gross receipts of their illegal business confiscated. This may greatly exceed their personal profits."
However, of the £1.88 million turnover generated, the court determined that only £760,000 was available (i.e. what was left) and made a confiscation order for that sum under POCA.
The financial status of the defendants was an important point to consider when pursuing a Confiscation Order under POCA. The case of Del Baso stressed that the purpose of a Confiscation Order is to deprive the defendant of the product of his crime, not to operate as a fine.
Del Baso has recently been applied to a case involving an illegally rented property. A family had been unlawfully renting out an annexe on their property, despite repeated enforcement action by Wycombe Council. Using POCA, the council was able to recover the £21,000 rental income that the defendants made from their criminal activity. Del Baso will continue to apply to instances where individuals breach an enforcement notice, rendering their continued activity unlawful and allowing local authorities to recover the benefit illegally gained.
If a local authority is considering the use of POCA, the confiscation proceedings flow from a successful conviction of the defendant in either the Magistrates' or Crown Court for failure to comply with the provisions of an extant enforcement notice. It is therefore important to evaluate the evidence and the prospect of a conviction and then to consider whether the defendant has available assets that can be made the subject of a confiscation order.
If you are considering such a course of action, a member of the planning team would be happy to discuss the process or the merits of proceedings for individual cases as part of an initial consultation.
This article was jointly written by Alice Babington and Gareth Pinwell.