The biggest enforcement penalties in 2019

Once again, the highest enforcement penalties this year totalled hundreds of thousands of pounds, and in one case more than a million. But the bulk of payouts are won by a handful of boroughs.

An illegally converted bedsit at 4-6 London Bridge Street. Image: Southwark Council
An illegally converted bedsit at 4-6 London Bridge Street. Image: Southwark Council

In April, an enforcement case brought by Southwark Council led to a landlord being forced to repay £1.2 million, the biggest such award that we recorded in the first eleven months of 2019.

This was only just over a quarter of the size of the biggest such penalty paid in 2018 - £4.3m awarded in a case brought by the London Borough of Ealing. The latter sanction is responsible for an average award among the top 20 fines in 2018 (£481,000) that was 75 per cent higher than the figure for 2019. However, if the 2018 Ealing penalty were to be set aside as an outlier, the average total penalty among the 20 biggest would be almost identical in 2018 and 2019, at £278,000 and £276,000 respectively.

In recent years, the total number of enforcement notices has been dropping. Ministry of Housing, Communities and Local Government (MHCLG) figures, published in August, revealed that 3,867 enforcement notices were issued by English councils in the 2018/19 financial year, the lowest level since records began in 1996, and representing a ten per cent year-on-year drop from 4,273 in 2017/18. However, authorities now have a clear financial incentive to take action against the biggest transgressors. So, even if their overall enforcement efforts have become more limited, they still have good reason to maintain their efforts when large financial penalties are possible.

Scott Stemp, barrister at No5 Barristers Chambers, says that local authorities are "becoming more aware of powers available to them to seek orders under the Proceeds of Crime Act (POCA) 2002". According to Richard Heller, barrister at Drystone Chambers, councils’ appetites for using POCA was initially whetted by a 2010 Appeal Court ruling, in which Lord Levenson ruled that those who breach planning enforcement orders are in the same legal position "as thieves, fraudsters and drug dealers".

As a result, says Stemp, local authorities now stand to make larger amounts of money from the confiscation of criminal financial gains than they do from the fine element for breaches of enforcement notices. "Councils receive around 18 per cent of the confiscated assets," he says (the rest is divided between the Home Office and financial investigators).

Of the top 20 penalties awarded in January to November 2019, 13 were in cases brought by London authorities. Three of the four most active councils, in terms of seeing top 40 penalties charged for transgressions in their areas, were in London. Brent, Newham and Southwark Councils each saw four top 40 penalties each.

Neill Whittaker, chair of the RTPI’s National Association for Planning Enforcement and a planning associate at law firm Ivy Legal, says: "London councils tend to have more resources to spend on pursuing prosecution cases, and in turn also issue the highest number of enforcement notices across the country. Fines are generally higher in London as land values/rental incomes are higher, and so an owner who breached a notice is likely to have made more profit".

Southwark Council told Planning that the number of major penalties secured in its area may be a consequence of a strategy to follow up on sites where notices had been served but compliance had not been achieved. The borough also has two experienced officers concentrating on this activity, who work closely with an in-house financial investigator with the aim of ensuring that penalties are paid. Johnson Situ, cabinet member for growth, development and planning, said: "Tackling poor quality housing is a priority for the council and we are fortunate to have an experienced and dedicated planning enforcement team who work closely with colleagues in our private sector residential team".

Another council featuring heavily – with four successful POCA cases in the top 40 – is BCP Council, covering Bournemouth, Christchurch and Poole in Dorset. Andy Dearing, chief enforcement officer at the council, says the council has been pursuing a policy of focusing on the unauthorised clearing of trees.

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