How we did it: Clamping down over enforcement offences

Leicester planners have brought prosecutions on a set of unauthorised uses to a successful conclusion. Jonathan Tilley reports.

Enforcers: compliance and monitoring team leader Sarbjit Singh, planner Zafer Faqir and head of planning Grant Butterworth
Enforcers: compliance and monitoring team leader Sarbjit Singh, planner Zafer Faqir and head of planning Grant Butterworth

Project: Use of the Proceeds of Crime Act 2002 against breaches of planning control

Organisations involved: Leicester City Council

More than four years since receiving complaints about the conversion of three adjoining industrial units in Leicester’s Green Lane Road into shops without planning permission, the city council’s enforcement team concluded a successful prosecution and secured confiscation orders under the Proceeds of Crime Act (POCA) 2002 last month.

The legislation, originally devised to seize proceeds from "big ticket" crime such as drug trafficking or money laundering, is increasingly being used by councils in planning enforcement cases. But this is the first time Leicester City Council has done so. The total fines, confiscation orders and costs facing the tenants and landlords behind the breach of control came to just over £100,000.

Zafer Faqir, a planner in Leicester’s compliance and monitoring team, explains that the saga began as separate cases for different units, after public complaints were made in summer 2010 over the unauthorised use of two units as a DIY store and a carpet shop. The owners put in retrospective applications in January and May 2011, but were refused in April and November that year.

More complaints emerged in July 2011, when the middle unit was made into a supermarket. "The owners put in an application before opening. It was refused, but they started up two months later," recalls Faqir.

The reasons for refusal of the various applications, according to the decision letters, included conflict with development plan policies to maintain the vitality and viability of defined shopping, loss of employment land and concerns about parking in the area.

The council began talking to the owners, asking them to reverse the unauthorised uses voluntarily. When this had no effect, it served a series of enforcement notices. The owners of the DIY store and the supermarket appealed, but the owner of the carpet shop did not and the notice took effect, giving two months to comply.

The appeals for the other units were dismissed in 2012. In the case of the DIY store, the inspector held that a six-month compliance period would be "more proportionate and reasonable" to lessen the risk that a small business would be compelled to cease trading. But this caused discontent for the other tenants as "they wanted to be treated fairly and equally," says Faqir.

Months later, ongoing investigations by council officers revealed that all three units were still in retail use and the council commenced prosecution proceedings in September 2012. Faqir says these were long and complex, involving council planning, legal and financial teams and external counsel for the High Court POCA process.

All the defendants pleaded guilty by April 2013, after which the evidence, including witness statements and financial investigations, was submitted to Leicester Crown Court for determination. The landlords and shopkeepers were sentenced early last month, concluding the case. "Matters were only wrapped up more than a year later," says Faqir.

The couple owning the DIY store and supermarket were jointly fined £30,000, with £8,000 costs and £6,558 confiscated. The tenants were each fined £2,500 with £4,000 costs and had £11,345 and £8,400 seized. The carpet shop tenant had £6,000 confiscated, while the landlord was fined £5,000 with costs. The fines go to central government, but one third of the sums confiscated under POCA, which are calculated against available assets, go to the council for investigative purposes.

Council head of planning Grant Butterworth says it is "unusual" for enforcement cases to take so long. "It’s unfortunate that it got to this stage," he says. "We dealt with the appeals and served enforcement notices, but they just didn’t comply." Given the "blatant" infringement, the council found it appropriate to take the case further and POCA was a "good way to recoup some of the energy" expended, Butterworth adds.

The unauthorised trading has now stopped, and he suggests that the defendants recognised the difficulty of their position and are unlikely to infringe again. The council prefers to wrap up enforcement cases before they reach court, he says: "We would rather invest the energy in more productive activities."

However, he believes that the result does serve as a warning to other transgressors. "It sends a strong message that planning laws are there for a reason. There is now redress with POCA, even though we would much rather not go there."

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