Local councils issue thousands of planning enforcement notices every month. Often these are in respect of matters which are highly contentious between business and homeowners and the council. What is not commonly known is that a breach of compliance with an enforcement notice, however technical, can have devastating effects for the party who has breached the notice. This includes a Criminal Conviction and substantial financial penalties.
Proceedings for a breach of a planning enforcement notice can be defended successfully if expert legal advice is sought at an early stage. Often the matter can be prevented from proceeding to trial by effective negotiation with the prosecuting authorities or the matter can be won in a contested hearing if an effective defence is available. A word of warning however- Local councils can view these sorts of proceedings as an effective money making tool. Fines and confiscation orders under the Proceeds of Crime Act can be significant therefore enforcement notices and subsequent proceedings should not be ignored or taken lightly.
Below I will examine the law; in separate blog post I will examine available defences.
Proceedings for breach of a planning enforcement notice are triable either in the Magistrates Court or in the Crown Court in front of a jury. In the Magistrates Court the potential sentence is a fine not exceeding £20,000 for each breach. In the Crown Court there is the potential sentence on conviction of an unlimited fine for each breach.
The law in respect of a breach of an enforcement notice is governed by s179 of the Town and Country Planning Act 1990.
Subsections (1) and (2) deal with the potential liability of the landowner-
Section 179 Offence where enforcement notice not complied with.
(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.
(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
The potential liability of occupiers of the land is dealt with under subsections 4 and 5-
(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.
(5) A person who, at any time after the end of the period for compliance with the notice, contravenes subsection (4) shall be guilty of an offence.
Therefore both the owner(s) of the land and their tenants or other occupiers may be liable under the legislation.
It should be noted that compliance with a notice does not mean that the notice no longer applies. Any requirement in a notice to discontinue use of land in a specific way means it must be discontinued permanently. Any later resumption of the use prohibited therefore constitutes a further offence. In Prosser v Sharp , the Divisional Court held that where an enforcement notice required a landowner to remove a caravan from land, he had failed to comply with it when he removed the caravan but replaced it with another.
It is far cheaper, easier, quicker and more effective for a local authority to seek an injunction to remedy the breach of planning control by using section 187B of the Town and Country Planning Act 1990. So why do authorities often choose to prosecute?
The answer lies as with many things in life with money. A significant benefit for the council in pursuing the criminal route is that they may seek a confiscation order under Part 2 of the Proceeds of Crime Act 2002. This is a draconian piece of legislation which allows the prosecution to recover any monies that have passed through an individual or businesses’ hands. This covers the period of the breach and in some circumstances may encompass benefit for an entire 6 years preceding the offence. The amount claimed can be the entire turnover of a business when that business is operated from a premises in breach of the legislation.
Most alarmingly, failure to cooperate with a Proceeds of Crime Order carries significant prison sentences in default. So an otherwise law abiding individual can see themselves going to prison if they do not come up with the money. For these provisions to apply there must have been a successful prosecution for the offence and the prosecution must have asked for the order or the court believes it is appropriate to make it.
The confiscation order is in addition to any other penalty (e.g. fine) which may have been imposed. Indeed the Supreme Court has held that, even if the defendant has been given an absolute or conditional discharge, there should be a confiscation order if the criteria in section 6 are satisfied: R v Magro .
From the above it is clear that a planning enforcement notice and any proceedings for breach of such a notice must be taken seriously. Specialist legal advice should be sought at an early stage. Quentin Hunt is a leading legal expert in this field having conducted many high profile and serious cases. If you find yourself needing assistance please contact Quentin for a free, informal no obligation conversation.