In recent years, local planning authorities have increasingly turned to the Proceeds of Crime Act 2002 (POCA) as an enforcement tool against breaches of planning control. Originally designed to target serious organised crime, POCA enables courts to confiscate financial benefits obtained through criminal conduct.
Its growing application in planning disputes, particularly following breaches of enforcement notices, has sparked significant legal debate, parliamentary scrutiny, and a series of influential court decisions.
This article examines the latest case law and policy developments, highlighting how POCA is reshaping the landscape of planning enforcement.
- The Legal Framework: When Planning Breaches Become Criminal
Under the Town and Country Planning Act 1990 (TCPA), development without planning permission or in breach of a planning condition is not itself a criminal offence. However, once a local authority issues an enforcement notice and the notice takes effect, failure to comply with that notice becomes a criminal offence under section 179 TCPA.
Traditionally, sentencing for such offences involved fines. But courts increasingly recognise that fines alone may not remove the financial incentive to continue unlawful development, particularly where rental income or commercial gain is substantial. This gap has led to the rise of POCA proceedings in planning enforcement, even though section 179 (9) TCPA makes provision for any benefit to be taken into account when imposing a fine.
- Recent Case Law: A Trend Toward Aggressive Financial Recovery
2.1: High Value Confiscation Orders
Local authorities have secured several high-profile confiscation orders in recent years:
- Westminster City Council secured a £400,000.00 confiscation order against a property developer after he unlawfully converted a property into flats and ignored a council enforcement notice. https://www.theplanner.co.uk/2019/09/18/ps400k-confiscation-order-issued-westminster-landlord
- Ealing Council secured a £1.44 million confiscation order against a landlord who ignored an enforcement notice following an unlawful property conversion. https://www.ealing.gov.uk/news/article/2218/hefty_penalty_for_planning_breach#:~:text=Published%20Wednesday%2028%20February%202024,refused%20to%20follow%20legal%20orders.
- Lewisham Council is pursuing a £2.5 million order against restaurant owners who installed an extractor fan without permission and breached a subsequent enforcement notice, with the court even seizing their passports pending resolution. https://www.cateringinsight.com/restaurant-faces-ruin-over-2-5m-kitchen-extraction-fan-dispute/
- Blackpool Council pursued a bar owner because the sign of his premises was too large and he disregarded a planning enforcement notice to remove it. The Court made a confiscation order of £400,000.00 against the directors of the company that owned it. https://www.blackpoolgazette.co.uk/news/judge-orders-ma-kellys-to-pay-aps400000-over-planning-breaches-674398
These cases illustrate the scale of financial exposure now facing individuals and businesses who fail to comply with planning enforcement notices, which in some instances may at first seem trivial.
- Parliamentary scrutiny and policy concerns
The expanding use of POCA in planning enforcement has not gone unnoticed. MPs have questioned whether confiscation powers intended for serious criminality are being repurposed as a routine planning tool.
Simon Hoare MP recently argued that POCA “was never intended to be used by local authorities as an addendum to planning enforcement,” prompting the Housing Secretary to order a review and consider issuing guidance to councils. The Negotiator
This political attention suggests that policy reform or at least clearer guidance may be forthcoming.
- Practical implications for developers, landlords, and planning professionals
4.1: Heightened financial risk
POCA dramatically increases the stakes of non-compliance. Confiscation orders can exceed the value of the property itself, particularly where rental income is treated as “benefit” obtained through criminal conduct.
4.2: Importance of early legal advice
Once an enforcement notice is issued, the typical 28 day appeal window is critical. Appealing suspends the notice and may prevent criminal liability from arising.
4.3: Need for robust compliance strategies
Businesses must ensure planning compliance is embedded into operational decision making. The financial consequences of delay or neglect are now too severe to ignore.
Conclusion
The recent surge in POCA proceedings within planning enforcement marks a significant shift in how local authorities approach unlawful development. High value confiscation orders, strengthened by supportive case law, demonstrate that courts are willing to treat planning breaches as financially motivated criminal conduct.
However, the trend has also triggered political concern and calls for clearer guidance on the appropriate limits of POCA in the planning context. Until such guidance emerges, developers and property owners must treat enforcement notices with utmost seriousness and seek early legal advice to mitigate potentially devastating financial consequences.
Our crime and regulatory lawyers can assist you and your business in all aspects of the Proceeds of Crime Act, including planning or other enforcement notices. Early advice is essential.
Get In Touch
Mike Sophocleous is a Partner in the Crime and Regulatory department, with extensive experience in all aspects of the Proceeds of Crime Act, from cash seizure and confiscation to multi-jurisdictional civil recovery. He advises individuals and businesses facing enforcement actions, including planning disputes, and helps manage complex financial exposure under POCA.
If you would like to speak with Mike or another member of our Crime and Regulatory team about planning enforcement, confiscation orders, or any POCA-related matters, please call 03301 734 354 or complete our online contact form.
