Earlier this week I had a call from a planning professional whose client has been told that the local planning authority is going to take her to court.
Background facts in brief
The client had extended their property without planning permission and the Council had served an enforcement notice. The client had appealed unsuccessfully to the Planning Inspector and had also submitted a retrospective planning application but this had been refused. Now the client had received a letter explaining that the Council was considering a prosecution for failure to comply with the enforcement notice. The client is seeking legal advice ahead of the possible prosecution.
Should the client seek legal advice?
It will not come as a surprise when I explain that, in my view a person in this position is absolutely doing the right thing by seeking legal advice from a planning lawyer, solicitor or barrister. While it might sound counter-intuitive, in these cases the client can save money by getting advice, which I will explain below.
It is important to bear in mind that a prosecution for non-compliance with an enforcement notice is a “strict liability” offence. This means that where the local planning authority have evidence that there is currently (or even that there has been in the past) non-compliance with an enforcement notice, the client will be convicted of this offence. There are some exceptions but these will only apply in very limited circumstances.
There is a statutory defence which applies where the owner of the property is the defendant and they have done everything they could be expected to do to secure compliance with the notice. For this defence to apply, it is not going to be enough for the defendant just to claim that they have no money. They will have to provide evidence of how they have done everything possible to secure compliance.
Consequently, where the local planning authority has evidence of the alleged breach, unless there is compelling evidence proving that the statutory defence applies, there is going to be a conviction.
The penalty on conviction is an unlimited fine and this is where having professional legal representation in court will help. A lawyer will enable you to put forward effective mitigation, ie the best possible case to bring down the level of the fine. This can save thousands of pounds. Therefore, while getting advice from a lawyer may not prevent a prosecution, it could still be highly cost-effective.
If the statutory defence applies, a planning solicitor or barrister can provide a realistic assessment of the strength of the evidence and the prospects of success of a not guilty plea.
Summary
To sum up, therefore, if the local planning authority decide to prosecute, a person could be convicted and made to pay a substantial fine. If there are reasons why in the circumstances in which a person finds themselves they really can’t secure compliance with the notice, they should definitely seek legal advice. These will be exceptional and usually very fact specific circumstances.
A client should always consider if she has a budget for legal advice, on the basis that getting advice could considerably reduce the fine that the court can impose if there is a prosecution.
Photo by Brett Jordan at Unsplash
