Failure to comply with the requirements of an enforcement notice may result in the local planning authority seeking injunctive relief, prosecuting with a view to imposing a fine or taking direct action by entering onto the land to remedy the breach. On occasion, however, this may still be insufficient to deter a recalcitrant landowner who is extracting considerable financial gain from the situation. R v Del Basso [2010] EWCA Crim 1119 demonstrates that a further financial risk is involved.
The appellants had been operating an airport park-and-ride facility in breach of planning control and were convicted by the Crown Court of failing to comply with an enforcement notice, contrary to section 179(1) and (2) of the Town and Country Planning Act 1990. They continued to operate the facility, despite the convictions. Proceedings were brought for confiscation orders under the Proceeds of Crime Act 2002 (POCA). The orders were made having regard to the gross profit that the appellants had achieved. They appealed. The Court of Appeal rejected their contentions that the orders were oppressive and that the decision to pursue confiscation proceedings was an abuse of process. It therefore dismissed the appeals.
The appeal judges approved the approach of the Crown Court judge and it is worth setting out this part of his final statement:
“I conclude with a final observation about the mentality of the [appellants] and other similar law breakers. I have received the strong impression that neither the [appellants] nor… their accountant appreciated fully the risk that the companies and individuals involved in the park-and-ride operation faced from confiscation proceedings. They have treated the illegality of the operation as a routine business risk with financial implications in the form of potential fines or, at worst, injunctive proceedings. This may reflect a more general public impression among those confronted by enforcement notices with the decision whether to comply with the law or to flout it. The law, however, is plain. Those who choose to run operations in disregard of planning enforcement requirements are at risk of having the gross receipts of their illegal businesses confiscated. This may greatly exceed their personal profits. In this respect, they are in the same position as thieves, fraudsters and drug dealers.”
This decision accordingly shows that where the offence involves financial gain arising from a breach of planning control, the situation falls within the ambit of POCA and a confiscation order based on gross profits may properly be sought.
John Martin is a freelance writer
