Non-compliance with formal extant enforcement methods such as an Enforcement Notice, Stop Notice or Breach of Condition Notice is a criminal offence. The consequences of non-compliance of formal notices vary in terms of the sanction that can be imposed by Courts on a successful prosecution and the defences available to a defendant.
If a Local Planning Authorities successfully prosecutes a person under either offence in Section 179 of the 1990 Act the penalty will be a fine. There is no upper limit on the amount of the fine and in coming to a decision as to the quantum of the fine the Court shall have regard to any financial benefit that the Owner or person with control has obtained as a consequence of the offence.
If a prosecution results in conviction then the relevant Local Planning Authority can apply for a confiscation order under the Proceeds of Crime Act 2002. If a Confiscation Order is made it will require the defendant to pay the amount the Court determines the convicted defendant has benefitted from the offence. Such applications by LPAs are increasingly common and if a Confiscation Order is made, the LPA is able to receive up to 37.5% of the receipts from any such Order- making it an attractive prospect for an LPA.
Our specialist planning lawyers can advise individuals and companies in respect of their obligations under extant Enforcement Notices to avoid prosecution in the first instance. Where enforcement prosecutions have commenced, we can advise on whether a statutory defence can be made out, or whether there have been any procedural errors undertaken by the prosecuting authority, including successfully defending enforcement prosecutions on the basis of an abuse of process arguments. We regularly provide advice on whether there are any mitigating factors that could result in a lesser fine, as well as advising on the Court process itself including preparation and service of the necessary Court documentation.
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