R Marios Peter Kombou v The Crown Court at Wood Green
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mrs Justice Thornton DBE |
| Judgment Date | 12 June 2020 |
| Neutral Citation | [2020] EWHC 1529 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2528/2019 |
| Date | 12 June 2020 |
[2020] EWHC 1529 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
Mrs Justice Thornton DBE
Case No: CO/2528/2019
Andrew Campbell-Tiech QC (instructed by Trethowans LLP) for the Claimant
The Defendant did not appear and was not represented
Julian Christopher QC (instructed by London Borough of Enfield) for the Interested Party
Hearing dates: 12th May, 2020
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Lord Justice Holroyde and
The claimant (“Mr Kombou”) was charged by the Interested Party, the London Borough of Enfield (“Enfield”), with an offence of failing to comply with an enforcement notice, contrary to section 179(2) of the Town and Country Planning Act 1990. On 13 October 2017 he pleaded guilty to that offence before a magistrates' court. Pursuant to section 70 of the Proceeds of Crime Act 2002 (“ POCA”), he was committed for sentence to the Crown Court at Wood Green, with a view to a confiscation order being considered. He applied to the Crown Court to vacate his guilty plea. On 13 May 2019 HH Judge Greenberg QC (“the judge”) refused that application. She gave her reasons both orally and in writing on 28 May 2019. Mr Kombou now applies, by limited permission of Yip J, for judicial review of the judge's decision. The defendant, the Crown Court, has entered an appearance but has taken no further part in the proceedings. The application for judicial review is resisted by Enfield. This is the judgment of the court.
It is appropriate to identify at the outset a feature of confiscation proceedings which lies at the heart of Mr Kombou's case. When a confiscation order is made pursuant to POCA, the sum ordered to be paid is collected from the offender by the Home Office. What happens to the money so recovered has since 2006 been governed by the Home Office's Asset Recovery Incentivisation Scheme: “ARIS”. The objective of ARIS, as described in a Home Office publication, was
“to provide operational partners with incentives to pursue asset recovery as a contribution to the overall aims of cutting crime and delivering justice.”
The effect of the scheme, at the time material to this case, was that the Home Office would retain 50% of funds recovered under a compensation order, and the remaining 50% would be divided as follows: 18.75% to the investigator; 18.75% to the prosecutor; and 12.5% to Her Majesty's Courts and Tribunals Service. It follows that where, as in this case, the same body was both investigator and prosecutor, it would receive 37.5% of the sum recovered.
The facts:
We summarise the principal facts as succinctly as possible. It is however necessary to go into some detail, in view of the submissions made on Mr Kombou's behalf.
Mr Kombou has at all material times been the owner of a property in north London which was initially – and lawfully — divided into three units of accommodation. In 2008 Enfield, the relevant planning authority, became aware of conversion work at the property and issued a Planning Contravention Notice. In February 2009, Mr Kombou applied (through his agent) for a change of use to a house in multiple occupation (“HMO”). That application was refused. Later in 2009, however, Enfield granted an application for a Certificate of Lawful Development (“LDC”) permitting Mr Kombou to use the property for up to six persons living as a single household.
The property was instead converted into eight self-contained rooms, each with its own bathroom and kitchen. That was a clear breach of planning control. The rooms were occupied by tenants of Mr Kombou, seven of whom were in receipt of housing benefit from Enfield. Enfield observed this unlawful use of the property when an inspection was carried out on 8 November 2010. On 10 December 2010 Enfield served an enforcement notice which required Mr Kombou, by 11 April 2011, permanently to cease the use of the premises as eight separate units of accommodation and permanently to remove from the premises all doors and partitions serving to separate the premises into eight separate units, all but three kitchens, all but three electricity meters, all but three gas meters, all but three door bells and all resulting materials.
Mr Kombou, through his agent, gave notice of appeal against the enforcement notice but later withdrew that appeal. He applied in February 2011 for a certificate permitting him to use the property as eight self-contained units, but Enfield refused that application on 14 July 2011.
Mr Kombou did not comply with the enforcement notice. He continued for about four and a half years to let the property as eight separate units and to gain financially by doing so.
Mr John Shuttlewood, a Planning Enforcement Officer employed by Enfield, compiled a file in relation to the change of use of Mr Kombou's property from three units to eight. On 2 April 2015 he sent an email to Mr Wesley Stevens, a financial investigator employed by Enfield, in which he noted that the enforcement notice period had expired in April 2011 and said:
“Approx £310k of benefit if you take into account all 8 units.”
On 28 September 2015 Enfield gave Mr Kombou a final warning to comply with the enforcement notice. He was then given two weeks' notice that a site visit would be made.
On 29 September 2015 Mr Shuttlewood recommended that the case proceed to prosecution. He expressed the opinion that Mr Kombou had played the system by delaying enforcement action with the submission of multiple applications, and said:
“The purchase of the 3 flats at the premises and the conversion into 8 units is purely to gain a substantial rental income (see POCA figures below), resulting in the defendant not living at the premises but creating 8 units of sub-standard accommodation in this borough.”
Mr Shuttlewood went on to estimate the “ POCA potential on rental income of 8 flats” in the sum of £307,200.
On 23 October 2015 Mr Stevens sent an email addressed amongst others to Mr Shuttlewood, Mr Andy Higham (Enfield's head of development management) and a member of Enfield's legal department. He attached a spreadsheet listing a number of current cases and showing which would be considered for prosecution and which would not. Mr Kombou's property was listed as “ POCA – file to be reviewed. Awaiting service of summons”.
Mr Shuttlewood carried out the site visit on 3 November 2015. He found that the building appeared to have been reconfigured into a six-occupant HMO. However, there were still eight gas meters, eight electricity meters (all with varying amounts of credit on them) and eight door bells; and although there was a room marked “kitchen”, its contents and appearance, and the appearance of the other rooms, suggested that it was not in fact a communal kitchen. Mr Shuttlewood's enquiries also showed that there were eight live council tax accounts in different names at the premises, and that payments of Housing Benefit/Council Tax Benefit were being under made seven live accounts. He therefore suspected that the reconfiguration of the premises may have been a temporary alteration carried out for the purpose of his visit, and the building could easily revert to its former illegal use. Alternatively, he suspected that a Council Tax/Housing Benefit fraud may be taking place.
On 22 March 2016 Mr Higham completed a form entitled “Officer Recommendations/Decision of Head of Service”. He recommended prosecution of Mr Kombou. The form listed a number of “Criteria for consideration” in accordance with Enfield's prosecution policy. In relation to the “Seriousness of Offence” criterion, Mr Higham wrote:
“The illegal conversion of properties even those previously occupied as HMO into self-contained residential accommodation is one of the Council's planning enforcement priorities especially where there are concerns over the quality of the accommodation.
The conversion to 8 took place without first obtaining the necessary planning permission which had previously been obtained for the conversion to 3 units. A number of planning applications have been submitted in attempt to regularise the position. Those seeking pp for HMO have not resulted jn approval. An LDC seeking confirmation of the use as lawful but involving a different configuration have been agreed but the use remains contrary to these accepted positions. A second LDC for the current use was not accepted.
□ No action to regularise the use of the property has been taken following the determination of these planning applications.
An Enforcement Notice was served and although an appeal was lodged, this was withdrawn by the Appellant. The Enforcement Notice been complied with [sic].
The situation is contrary to the Council's adopted planning policies in providing a poor standard of residential accommodation and an inappropriate form of development contrary to the objective of delivering high quality residential accommodation and development.
It is considered sufficient time has elapsed for the breach to have been rectified.”
In relation to the “Evidential Test” criterion, Mr Higham wrote:
“Satisfied in principle – lawyer to do full evidential test.”
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