Peyto Law Secures £21k Fine and £17k Confiscation Order Following Successful Prosecution

Louise Humphreys has continued to act for Chiltern District Council (CDC) in the criminal proceedings relating to the failure by Lombard Hotels Ltd and Asrar Ahmed to comply with an enforcement notice. Details of the prosecution and the facts can be found here

Asrar Ahmed was sentenced today (18 January 2019) at Aylesbury Crown Court by the Honourable Recorder for Aylesbury and ordered to pay a fine of £21,170 (including victim surcharge). In addition a confiscation order under the Proceeds of Crime Act (POCA) was made in the sum of £17,000. Mr Ahmed was also ordered to pay CDC’s costs in bringing the proceedings in the sum of £23,293.04.

No separate penalty was given against Lombard Hotels Limited of whom Mr Ahmed was the sole Director and Company Secretary.

It is understood that the breach of planning control has now been resolved and that the site operatives are operating in accordance with their planning permission.

Peyto Law Acts for Chiltern District Council in Prosecution for Failure to Comply with an Enforcement Notice

Louise Humphreys acted for Chiltern District Council (CDC) in the prosecution of Mr Asrar Ahmed and Lombard Hotels Limited for failing to comply with an enforcement notice with both defendants being convicted at High Wycombe Magistrates’ Court today (17 May 2018).

The case concerned premises known as Bubbles car wash, trading as Deep Mill Vans, on the A413 London Road in Little Kingshill.

In November 2014, CDC found that the number of vehicles being displayed, stored and sold on the site (which was located in the Green Belt and in an Area of Outstanding Natural Beauty) was far greater than permitted under the terms of the original planning permission. An enforcement notice was issued required the owners to comply with the condition limiting the number of vehicles on site and requiring them to be displayed in the permitted areas.

At the same time the owners submitted an application seeking to remove the relevant planning condition. This application was refused by CDC and that refusal upheld on appeal to the Secretary of State because of the impact on the Green Belt, AONB and on highway safety grounds.

Following the coming into force of the enforcement notice, CDC carried out numerous site visits and discovered that the number of vehicles on site still exceeded the permitted maximum and vehicles were being displayed outside of the permitted areas.

Prosecution proceedings were therefore brought against Lombard Hotels Ltd as the owner of the site and Asrar Ahmed as the sole Director of the company.

Following a trial at the Magistrates’ Court, both Defendants were found guilty of six offences each of failing to comply with the enforcement notice.

The case has now been sent to Aylesbury Crown Court for sentence and for the making of a confiscation order under POCA.

Land at Deep Mill Service Station – Bubbles Car Wash

Direct Action and Natural Justice

The recent case of R (Usher) v Forest Heath DC explored the relationship between decisions to take direct action and requirements of natural justice.

In the case, the Claimants argued that the LPA was under obligations to invite representations from them in respect of proposed direct action and to notify them of its decision to take direct action basing their argument on the principles of natural justice (and the DC’s Constitution) relying upon the serious consequences that would arise, in particular the entry onto the Claimants’ land; the power of recovery of costs; the power to place a charge on the land and finally the potential criminal liability. 

Nathalie Lieven QC, sitting as a Deputy High Court Judge, held that the Claimants’ arguments failed both on the law and on the facts.

The Claimants had a statutory right to make representations on whether the property had to be demolished, through the mechanism of the enforcement notice appeal under Section 174 of the TCPA. They had had every opportunity to make representations and indeed had done so. They knew that the LPA intended to take direct action if the building was not removed voluntarily. A decision to take direct action is not a quasi-judicial decision; it is an administrative step to achieve compliance with an enforcement notice. That does not mean that it carries no procedural protection within the rules of procedural fairness, but it is not the type of decision that falls within the Constitution as being ‘quasi-judicial’. That phrase is intended to cover matters such as a licensing decision, or doubtless a development control decision. Nor, as a preliminary view, was the decision to take direct action the determination of a civil right which falls within ECHR Article 6. The Claimants’ Article 6 rights were fully protected through the enforcement notice appeal process, including the power to appeal to the court under Section 289 of the TCPA. There was no breach of procedural fairness.

The Claimants also argued that alternatives to direct action were not properly considered by the LPA, contrary to Government Guidance, the Planning Practice Guidance (“the PPG”).

The Judge observed that the first resort for compliance with an enforcement notice is for the landowner him or herself to comply with the notice. The Claimants had chosen not to do that, despite being given very clear extended deadlines by the LPA to carry out the requisite work themselves. 

She did not read the PPG as suggesting that a LPA must take some other action, e.g. an injunction or a prosecution, before they decide to take direct action. If the PPG had said this, it would not accord with the Act itsel,f which requires no hierarchy or priority of further enforcement steps. There was no legal obligation to seek an injunction before direct action was taken. Equally, there was no requirement to take criminal proceedings first. Criminal proceedings in the enforcement context could only be a way of persuading the landowner to comply with the notice, not an alternative to doing so. Therefore, it may well be more effective for the local planning authority to proceed to direct action rather than take criminal proceedings.