Roderick Morton analyses an important Court of Appeal ruling for planning enforcement lawyers in relation to confiscation cases.
The rather unhelpful case of R v Panayi  EWCA Crim 413 concerned a POCA confiscation application made by a council which successfully prosecuted a planning offender for non-compliance with an enforcement notice. Not unusually, the council had drafted the summons to refer to non-compliance on the single day on which their site visit was undertaken, that being the date on which they had evidence of the offence. The Panayi court said that the benefit confiscated could therefore only be the rental income for that single day.
Since then, a number of cases have nibbled away at Panayi, notably R v Roth and Ceredigion CC v Robinson. The mortal blow seems now to have arrived in the shape of London Borough of Barnet v Kamyab  EWCA Crim 543 .
Mr Kamyab converted a 5 bedroom house to 9 flats. An enforcement notice was issued and upheld on appeal. A compliance visit in 2014 established that there had been no compliance. Mr Kamyab was duly prosecuted and convicted in February 2015. His appeal was dismissed and the case went to the Crown Court for confiscation. The summons alleged failure to comply “on or before 4 February 2014” (Payani was “on or about”). Mr Kamyab relied on Panayi and offered £58 confiscation. The Crown Court judge agreed albeit perhaps reluctantly. The matter was referred to the Court of Appeal.
The Court of Appeal followed R v Roth. As worded, the summons in Kamyab was not a single day offence, it decided. Moreover, it was the very nature of the s179 TCPA 1990 offence that it was a single offence committed over a period. It would therefore take a lot to conclude it was a single day offence, almost no matter how it was worded.
The Court was asked to say that Panayi was now bad law. They stopped short of doing so but noted:
“We certainly agree that, where it can be distinguished, as in Roth and the present case, it should not be applied. A decision on whether it is rightly decided but confined to its own facts, or decided per incuriam by reason of the apparent absence of citation of Hodgetts, Ali and s. 8 of POCA, must await a case where it cannot be distinguished. We hope that no such case will arise…”
The court did note, however, that planning enforcement offences should normally be drafted as failure to comply between two specified dates, the first being the date compliance was due and the later one being the date of the summons. This would avoid any issues with confiscation. Planning enforcement lawyers should take note!
Pity the poor Lords Justices of the Court of Appeal though. Normally, a successful appeal would result in a full decision from the Court of Appeal or, if necessary, the remission of the matter back to the lower courts. The way in which this case had been heard in the Crown Court as a preliminary issue meant that neither of these options was available. It could not be remitted and the Court of Appeal had no information on the benefit received by Mr Kamyab and his available assets to reach a conclusion itself. Normally, the appeal court hears appeals on points of law. These tend to be nicely packaged, with agreed facts, a finite list of issues and well advocated and interesting legal points to think about. Not so here. The Court of Appeal judges were faced with the thought of having to hold a 3-day confiscation hearing themselves, complete with witnesses, dubious information and the kind of minutiae normally weeded out in the lower courts. The thought was deeply unpalatable to them! But it was the only way forward and they agreed “on this one occasion only” making clear that the problem better not recur! As they put it:
“We have said in the clearest terms that disposing of confiscation proceedings on a preliminary issue of law is, as the powers of this court currently stand, a dangerous course and one which we do not expect to see again.”