Friday, 1 July 2011

Another confiscation case


A month ago I noticed a report of another confiscation order being made in a planning enforcement case. The London Borough of Bexley obtained a confiscation order under the Proceeds of Crime 2002 against defendants who were running an illegal car trade from residential premises. Prosecution had followed their failure to comply with an enforcement notice by continuing to allow cars to be sold from their home.

The defendants appeared at Bexley Magistrates' Court on 20 July 2010 for trial, having earlier pleaded not guilty. They were found guilty of the offence and committed to Woolwich Crown Court for sentencing and for the Council's application for a confiscation order against them to be considered. The defendants were said to have benefited by £182,120 from their illegal activity.

However, the confiscation order was limited to £3,000 to be paid within six months. The court accepted that the defendants lacked the means to pay the balance, but made an order which was intended to secure the confiscation of the remaining £179,120 should the defendants be able to pay in future.

The Planning Committee Chairman claimed that this was one of the first cases in the country where a confiscation order has been issued in a planning enforcement case but, as we have seen in this blog, there have already been a number of other reported cases, and no doubt there have been more cases which have gone unreported.

This case does nevertheless serve as a further reminder of the financial risk that people run if they fail to comply with an enforcement notice against a development which gives them a financial reward of any kind. As we have seen, the gross sum received (and not just the net profit), if the failure to comply with the enforcement notice continues for more than six months after the enforcement notice took effect, can then be confiscated, subject to the other criteria set out in POCA being satisfied.

© MARTIN H GOODALL

2 comments:

Anonymous said...

Hi Martin, thank you for blogging on such topics!

Am I correct in my understanding in that a confiscation order may be obtained following the issue of an enforcement notice?

Say a breach had continued for 2 years over which period gross sums were received. If the LPA had failed to issue an enforcement notice in that period and the breach had now come to an end, is there anyway the order could be applied retrospectively?

I look forward to your reply.

I will also look forward to working my through your other blogs!

Many thanks

Martin H Goodall LARTPI said...

A confiscation order can only be made where (a) an enforcement notice has been served, has come into effect and has not been complied with, (b) the offence of non-compliance has continued for at least six months and (c) the defendant has been convicted of this offence and has been sentenced in the Crown Court. The confiscation order will only apply to any financial proceeds deriving from non-compliance with the enforcement notice itself. The sum confiscated will be the gross sum, not the net profits, but there can be no confiscation order where no proceeds (such as rent or shop takings) have been received. A confiscation order cannot be made in respect of any period before the enforcement notice came into effect; thus it cannot be ‘retrospective’ in that sense. A confiscation order cannot be made in cases in which the defendant is sentenced in the Magistrates Court. A confiscation order cannot be made in respect of a conviction for non-compliance with an enforcement notice if the offence of non-compliance continued for a period of less than six months.