Developers and Drug Dealers – Part 1

“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.”

–  R. v. Del Basso and Goodwin [2010] EWCA Crim 1119

The above excerpt illustrates the moment that planning enforcement appears to have woken up to the idea that the best way to strike at operations or uses that continue to contravene an extant Enforcement Notice is to take away every single penny that a developer or site operator makes in breach of that Notice.

It also seems that there are many professional advisors (planning consultants and lawyers) that are failing their clients by not advising them about the potential confiscation implications of flouting Enforcement Notices (or other Notices, come to that).

The main point (for lay clients, professional advisors and Enforcement Officers) is that when confiscation bites, it will bite ALL RECEIPTS AND EXPENDITURES – NOT PROFIT.

As an example – you run an unlawful car park in breach of an Enforcement Notice:

• The site cost £50,000 to acquire;
• The running costs are £100,000 p/a;
• The yearly receipts are £500,000;
• You run your car park for three years in breach of an Enforcement Notice

If a confiscation bites you on a ‘criminal lifestyle’ basis the recoverable amount is likely to be at least £1.5million.  Why?  Because confiscation is draconian and deliberately so.

Drug dealers don’t get to discount the cost of running their operations before paying confiscation orders; fraudsters can’t claim ‘oh but it cost me X pounds to buy my specialist printing equipment before I could commit that fraud’ and in the same way site operators or developers can’t say ‘but it cost me this much to run/build the place’.  Even if you gave away every penny of profit to help those poor donkeys in the donkey sanctuary it has no effect on the amount you can be ordered to pay.  It’s that tough.

And the best is yet to come.  These orders are (in the main) mandatory once the prosecution (typically a Local Planning Authority) start the ball rolling.  And they’re imprisonable, entirely separately from any substantive sentence imposed on the breach of any Notice.  And if you don’t pay and choose to go to prison?  You still owe the money when you are released.  Or the Official Receiver can get involved, seize your assets and realise them for you.

We haven’t even started on Restraint Orders (freezing the assets of suspects in the course of an investigation without their knowledge) or investigative tools available to Accredited Financial Investigators.

So the big questions –

• To planning consultants/lawyers – how confident are you that you can give your client(s) proper advice on the possible effects of an Enforcement Notice?
•  To the Enforcement Officers – do you know how or when this might give your enforcement action more bite?

Next time we’ll turn to some basic concepts and principles of the Proceeds of Crime Act 2002 so we can understand the tools of the job.

Any questions don’t hesitate to contact me.

Until next time – happy reading!

Scott