The Unusual Suspects: Planning & the Proceeds of Crime Act (POCA) 2002

Background

The POCA 2002 confiscation regime is designed to punish offenders and deter the commission of further offences. Confiscation is considered appropriate where the defendant has obtained a benefit from criminal conduct and has the means to pay a confiscation order. Where a defendant is convicted of an offence at the Crown Court, the court will consider whether a defendant has benefited from that conduct, the amount of the benefit, and the available amount that is recoverable. Failure to pay can result in a defendant serving a period of imprisonment in default, fixed by the court when the order is made. The 2009 Amendment Order saw confiscation enforcement extended to include Local Authorities.

The recovery of proceeds of crime understandably conjures up images of gangland crime syndicates: criminals brought to book by the courts and finally made to pay back their ill-gotten gains.

Tree Preservation Orders

In this context it may be more surprising to learn of the recent case from March this year of businessman Samuel Wilson. Back in 2016 Wilson had added a Juliet balcony to the master bedroom of his home in Canford Cliffs, Poole. However following the completion of building works he realised that a 42ft oak tree, subject to a Tree Preservation Order, shaded the balcony. Ignoring the protected status and the requirement to seek consent from the Local Authority, Wilson then chopped down 12 foot branches, allowing sunlight to the back of his property.

Wilson was ordered to repay £21,750 as his criminal benefit at Bournemouth Crown Court, following an earlier guilty plea for causing wilful damage to a protected tree, an offence under s.210 of the Town and Country Planning Act 1990. The court ruled Wilson had added this amount to the value of his home by destroying the tree.

In the earlier case of R v Davey [2013] EWCA Crim 1662 the appellant was convicted of causing or permitting the wilful destruction of a protected tree when he instructed a tree surgeon to fell a neighbour's 'notable pine' during the night, to improve his view of Poole Harbour. The appeal against the appellant's £75,000 fine was dismissed and it is of note that again a confiscation order was awarded, on this occasion for the sum £50,000, which represented the increase in value of his property following the tree's removal.

Enforcement Notices

In the key case of R v Del Basso [2010] EWCA Crim 1119 two individuals had rented land to a local football team. Planning permission had been obtained for use of the land for parking on match days but permission to operate a park and ride scheme had been refused. The individuals were served with an enforcement notice but failed to comply and continued to operate a park and ride scheme. Both were convicted and fined for breaching the notice but the parking business continued and expanded, leading to a further prosecution and confiscation proceedings.

The prosecution contended that the park and ride scheme was unlawful from the effective service of the enforcement notice, and that the turnover of the scheme represented the benefit of the parties. Dismissing the individuals' appeal Lord Justice Leveson quoted Judge Baker's remarks from the original hearing that "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". A confiscation order was made for the available amount of £760,000.

Growth & Accountability

The growth of the use of POCA 2002 by Local Authorities provides them with an effective prosecution toolkit and a potentially powerful deterrent. Recent high profile cases include Brent Council's successful prosecution of the operators of an illegal House in Multiple Occupation in December 2018, resulting in a £116,000 confiscation order. Yet the orders are also an irresistible means of raising funds in a climate of austerity: Councils can keep 37.5% of funds recovered when acting as both investigating and prosecuting authority.

However, recent cases indicate that the courts may be starting to temper this approach. R v The Knightland Foundation [2018] EWCA Crim 1860 was a concerning example of an abuse of process where Islington Council was found to have been improperly influenced in making the decision to prosecute by the prospect of obtaining a confiscation order. In R v Panayi [2019] EWCA Crim 413 the court found it could not extend the meaning of criminal conduct beyond that for which the defendant had been convicted. A confiscation order for £95,920 relating to rental income received after non-compliance with an enforcement notice was reduced down to £58. The appellant was charged with being in breach 'on or about 18 February 2016'. His benefit obtained through rent received from letting out flats in non-compliance with the notice could only be regarded as having been obtained in connection with the criminal conduct for which he was convicted: a single day's rent.

Whilst the suspects may be unusual, POCA does apply in the planning sphere and property owners should be mindful of the need to obtain legal advice at an early stage of any investigation by a prosecuting authority.