tackling rogue landlords · • 2013: introduction of article 4 direction removing pd rights...

RTPI Conferences is managed by Kaplan Hawksmere on behalf of the Royal Town Planning Institute

Tackling Rogue Landlords

Myles Joyce London and East of England Representative: NAPE


Background • Continued rise in demand for rented accommodation

in private sector • 3.6M households 17% of all households rented from

private landlord (Dec 12) • Minority fail to meet basic requirements: Overcrowding,

Poor/makeshift accommodation, Possible safety and safeguarding issues

• Just 487/1.2 million landlords in England were prosecuted in 2012 (Shelter)

• Scope for co-ordinated action hampered by lack of resources


DCLG: Dealing with Rogue Landlords: A Guide for Local Authorities Sept 2012

Suggested LAs should: • Understand nature and extent of problem in their area • Take swift and decisive action • Prosecute rogue landlords and deter them through

publishing successful prosecutions


CLG Committee: Enquiry into ‘The Private Rented Sector’

• Invited interested parties including LAs to make representations

• Evidence went before Select committee • 43 Recommendations- published July 2013 • Government response October 2013


Key recommendations • Publish tenant’s charter and model tenancy agreement • Develop code of practice for management of private sector

properties • Work with LGA on good government practice • DCLG and Home Office to liaise to raise police awareness of

legislation concerning illegal convictions • Cost of enforcement where possible placed on landlords convicted

of housing offences. Seek to extend rent repayment scope of LAs including repayment of housing benefit/Universal Credit

• Review of licensing including possibility of fixed penalties for minor housing offences without recourse to prosecution

• Built to rent scheme to be extended • Commitment to improve data access and quality • Area based approaches inter alia can be effective


Recommendations not accepted

• That Planning and Housing regulations are consistent with standards for quality and safety of PS Housing- current situation considered sufficient

• Review of mandatory licensing of HMOs • That letting agents subject to same regulation as

sales agents


Rogue Landlords: General Issues

• Scope of problem may be difficult to assess being local or well hidden

• Currently much of the intelligence comes from third parties • Reluctance of often vulnerable tenants to come forward • Financial benefit of breaches often outweighs fear of criminal

sanction • Lack of co-ordinated action and legislative knowledge can

hamper effective action • Importance of pro-active and joint working therefore cannot be

overstated


Some problems with joint working • Different Legislative interpretation from Housing and

Planning. No relevant legislative changes in the pipeline. • Inconsistency between Valuation Office and LA Council

Tax departments- may frustrate intelligence gathering • HMO standards- divergence. Can have situation where

unacceptable in planning terms for FCV or HMO but acceptable in Housing terms. Joint service agreements could overcome this

• Issue of materiality in planning- fact and degree not absolute- issues with enforcement may arise


Joint action- Who should lead?

Planning Breaches • Town and Country Planning

Acts • Identify breaches of planning

control can be both development and changes of use

• Is formal enforcement action expedient?

• Enforcement action to cease use and/or remediate unauthorised development

• Onus on cessation of unauthorised use and/or removal of works

PS Housing Breaches • Housing Acts • Duty to take enforcement action

to secure necessary improvements where category 1 Hazards are present.

• Onus on improvement of current use

• Enforcement under the planning acts often sought first to try and stop the use and remediate works.

• Enforcement/Licensing action should be more straightforward afterwards


Common PE Pitfalls

Investigation/EN/Appeal Refusal of Entry Attempts to mislead Correct service of EN Content of EN- uncertainty

and inaccuracy ‘Second Bite’ Rule- know

how to apply

Prosecution Getting the summons right S181 versus S179 of Act Abuse of Process arguments Resolution/Corporate

authority- and appeals, clarity of delegation

Proportionality Arguments under POCA


But Remember.. • A multi-agency approach can assist in taking enforcement action

and defending appeals • Benefits from further information from other Services: Housing,

Anti-social behaviour teams, street enforcement etc • “Once an Enforcement Notice always an Enforcement Notice” • Joint action reduces chances of delay or confusion in evidence

gathering given discrepancies in the definition and requirements of the relevant legislation(s)

• Benefits manifest themselves in increased sanctions, income generation and funding for multi-agency approaches


Case studies: What have LAs done? Joined up approach to tackle issues- 1. LB Haringey: • Article 4 direction • Industrial Estate project

2. POCA: • Del Basso and Goodwin • Proportionality: LB Brent and LBH

3. ‘Beds in Sheds’ • LB Hounslow- Rogue Landlords Project

4. Joint action with external service • LBH and LEB- case of HP


Case studies: Contd.

5. Enforcement Orders • Opportunity to enforce where concealment deliberate

6. Direct Action • Demolition of substandard dwellings and extensions

7. Conclusions • In Summation


1. LB Haringey: Overall Approach • Nov 2011: HMO Conference held-raised awareness

of concerns and shared intelligence • 2012 onwards: Additional licensing area for

Tottenham agreed. • Ongoing High level meetings with regard to HMO

action. • Research into use of industrial estates in Employment

land in South Tottenham commenced • 2013: Introduction of Article 4 direction removing PD

rights regarding change of use from C3 to C4 in 30th November 2013 in 12 Wards (Out of 19 in borough)

• Industrial Living Project Commenced 1st April 2014.


1. LBH Industrial Living Project • 2012 joint SVs showed

rapidly growing problem of unlawful residential use in South Tottenham Ind Estates and surrounds.

• Feb 2013 Funding for PEO for focused research into issue approved

• Jan 14 Cabinet report approved £600K for 2 year multi-agency project

• Project Manager appointed

• 2 Distinct Areas, 26 sites, 322 units and over 1,000 bedrooms confirmed.

• Enforcement Action commenced. Appeal decisions more favourable towards live/work rather than straightforward residential

• Dissemination to raise profile • Focus shift to Policy-

Regeneration in ‘West’ Area • Investigations ongoing in

‘East’ Area


With CLDE Granted

Permission on Appeal for live/work or residential

Without CLDE or Planning permission

No material change of use to live/work or residential

With CLED –unreliable information

Material change of use occurred to live/work or residential

Material change of use to Places of Worship

Land Use and Planning History


Landownership

Rightstock Limited (Freeholder)

Simon & Leona Wieder & Cygnus Automotive Limited

Henry Alan Lesser & David Michael Lesser ( First floor) Freeholder

Haringey Council Property

Palmlane Estates (Freeholder)

Masrus Supplies Limited (leaseholder & Wana Limited (Leaseholder)

Byron & Byron Holding Limited (Freeholder

Gary Battle (Leaseholder)

Unknown

Firgate Estate Limited (Freeholder)


Examples of Poor Quality Residential Use

Ladder into bedroom: Arena Centre


2. Confiscations Under POCA • S179(9) of TCP Act allow Courts to have regard to

any financial benefit but this will not set level of fine • LPAs can refer for confiscation under POCA on

conviction for any breach of Enforcement Notice(s) • POCA draconian- Gross income not Net benefit • Should use POCA proceeds to plough back into ‘crime

fighting’. LA share up to 37.5% of total confiscated • Used increasingly where income from planning

breaches is considerable-often housing related • Confiscation amount can be reviewed at any time


R v Del Basso and Goodwin 2010 • Financial benefit from unauthorised Park and Ride scheme • Successful prosecutions not a deterrent. Breach did not

cease. • Two arguments put forward which if successful would have

severely limited scope of POCA for planning breaches: • Park and Ride lawful activity so POCA has no operation • Confiscation abuse of process as business not caused

environmental or economic damage and level of profit minimal


R v Del Basso and Goodwin contd.

Both points dismissed: 1. Defendants convicted of planning offence and no suggestion in

POCA of exclusion of certain offences 2. Defendants had knowingly continued unlawful activity in belief

that future profit would outweigh any fine imposed by the Court 3. Upheld by Court of Appeal as ‘requirement to observe the law

is imposed on us all and Mr Del Basso and Mr Goodwin have only themselves to blame for their persistent failure to do so’


Questions to ask for embarking on confiscation

• If no realisable assets- is it in the public interest to proceed?

• Important to establish the role of the defendant

• May be circumstances of dispute before or during proceedings and should make Court aware of these at the outset


A Tale of 2 POCAs

• LB Brent and LB Haringey • Both defendants were known for planning

and/or housing breaches at non-related properties

• Both cases subject to delays and required arrest warrants to ensure attendance at Court

• Defendants in both cases sought a reduction in confiscation amount-mixed success


LB Brent: Mr. Ali, 211 Willesden Lane

• In 2007 he was seen doing building works at 211 Willesden Lane. He converted this premises to 12 flats and built various extensions.

• Summons issued 31st March, 2009 Due BMC 26th May, 2009 – Non appearance Warrant Issued. Finally appears at BMC 30/06/10 “I have been away”

• 20/09/10 – Trial and found guilty – remitted to Harrow CC for sentencing and confiscation proceedings

• 1st April, 2011 Confiscation Hearing • 1st December, 2010 – Out patient Brent Mental Health Service • Claims not fit to give instruction • Judge transferred to Norwich Crown Court.



• 25th September, 2012 at Norwich Crown Court • HHJ ruled that Mr Ali is not mentally incapacitated so as to be

prevented from participating in this confiscation. • The Prosecution say the s10 assumptions should apply to Brook

Avenue and Church Road. Salah Ali’s previous dealings, including his previous convictions in relation to 19 Brook Avenue.

• Found that the benefit figure is the sum applied for by prosecution being £1,438,180.59. The Value of the three properties is above that and therefore full confiscation order for £1,438,180.59 granted

• The Confiscation Order was appealed and the appeal took 22 months to be heard.



• 31st July, 2014. Appealed to the Court of Appeal and the confiscation order was revised to £544,358 on the basis that even though it was a lifestyle case as he had been in breach of several enforcement notices on other properties, the confiscation order should not include proceeds which were not criminal (i.e before an enforcement notice compliance period had expired)

• 30th January, 2015.Hearing at Norwich Crown Court to extend payment deadline as Mr Alia claimed to need more time to pay. The judge refused. Payment was made in full within 3 hours of the judge making his decision to refuse the extension.


LB Haringey: Mr. Izzet

• 89 Burgoyne Road and 23 Hewitt Road both In Harringay Ward converted without PP to 5 and 4 s/c flats respectively

• Enforcement Notices issued in 2008 to cease use as self-contained flats.

• Summons issued for prosecution and non-attendance and warrant issued- Mr Izzet agreed to attend trial set down Sept 2010.

• First conviction and sentence: Sept 2010 £10000 fine and costs for both properties. Reduced to £6000 on appeal to Crown Court in December 2010. Argument regarding service of Notices rejected.

• Second Conviction and sentence: October 2011: Fined £6000 and costs for both properties

• Third Conviction January 2013. Convicted and sentence deferred to tie in with confiscation proceedings. Appeal against conviction rejected in Crown Court April 2013.


LB Haringey: Mr. Izzet • Final Hearing WGCC 23.12.13 • Benefit amount agreed £312,315 but defence

ran Proportionality argument • Defence counter confiscation amount

difference between lawful let as single houses and that attained by letting unlawfully as s/c flats assuming 85% occupancy-£109 508 notional benefit

• HHJ noted large amount of rent paid via HB!


23rd December 2013: HHJ Held • Article 1 European Convention does not outweigh need for

necessary enforcement action • Authorities establish no allowance for expenses running

business under POCA • NOT in public interest that Notional Benefit figure put

forward should apply • Proportionate arguments should relate to Acts purpose- to

remove proceeds of crime rather than fines or deterrents. • Full Confiscation Amount Payable, £6900 in costs awarded

to LPA. • Amount fully paid, full compliance with ENs


Last word from Del Basso

• Judge Baker: • “the law is plain. Those who choose to run

operations in disregard of planning enforcement requirements are at risks of having the gross receipts of their illegal business confiscated. This may greatly exceed their personal profits. In this respect they are in the same position as thieves, fraudsters and drug dealers”


3. LB Hounslow: Rogue Landlord’s project

• Established c20,000 sheds in borough serious issue with unlawful residential lettings

• Project board set up-senior planning, housing and council tax officers and members

• Fire Brigade. Met Police, Press, Community Safety and Education Improvement Partnership included

• Target 6 most affected wards with outbuildings 25 sq.m or above in situ

• Project team recruited in Dec 2012


LBH: Results to date

• 2968 Investigations resolved, including

• 401 referred to other SPs for action

• 75 Taken out of residential use

• 14 Demolished • 13 Prosecuted


LBH: Actions to date • 139 enforcement notices issued. • 467 planning contravention notices issued. • 3837 properties visited- 77% investigation closed. • Prosecutions (over £330,000 in fines). • 27 properties visited under warrant a further 27 evening

unannounced visits with police. • 100 cases requiring enforcement action. • £480k secured for team of 5 for 3 years (until 2017/18). • Estimated income generation from project work: £309,418

(from ground A appeals and council tax) • Commence focus on Portfolio landlords (potential POCA)


Other Successes: • £80,000 fine on conviction in Crown Court. Not appealed-3

rear outbuildings at 44, 46, 48 Park Road, Hounslow. • Waye Avenue- Intelligence gathering street survey carried

out with police– 230 properties visited by council and police officers. 30 referred for HMO licences. 20 outbuildings in residential use. Worked with the Police to evict persons off Airport land

• In the process of employing a financial investigator shared between LBH departments

• Two National Planning Awards for enforcement work, including the “Editor’s Award”.


4. Assisting action by other agencies: LBH, Met Police EDF • HP: Landlord arrested after he sent bailiffs to evict a tenant in

one of his properties in LB Haringey. • Investigation led to discovery of illegally fitted meter • Further investigations let to further discoveries of illegally fitted

meters which had no proper safety checks • EDF fraud and Police liaised with LBH when they were cutting off

illegal supplies to tenants. • Joint site visits to ID tenants and get supplies re-installed • Parmar pled guilty to 5 counts of abstracting energy from

properties in LBH and asked for another 17 counts to be taken into consideration

• Sentenced to 9 months in prison and ordered to repay £91,838 lost to EDF plus £13,006 in compensation and £672 in costs


5. Deliberate Concealment: LB Brent v Mr. Virendra and Mr. Rashmika Patel • S171BC (1)b of Act provides for Enforcement Order to be applied for

where LPA believe deliberate concealment of a breach of planning has occurred

• Such an order must be made within 6 months from date of discovery of breach

• Several LA officers and both defendants gave evidence as witness. • Established that the defendants did not notify LA of change of use, for

Council Tax banding nor created a separate postal address nor separately metered for electricity

• Held that deliberate concealment had occurred and Mrs Patel had sought to mislead Council officer(s)

• Enforcement Order made on 16th January 2014. LBB have 1 year to take enforcement action- commencing 7th Feb 2014.

• The owners have since demolished the dwelling in the summer of 2014.


5. Direct Action

• S178 TCP act 1990 Provides for LPA for compliance with EN to—

• (a)enter the land and take the steps; and • (b)recover from the person who is then the

owner of the land any expenses reasonably incurred by them in doing so.

• 6 examples: LB Brent (2) LB Hounslow (4)


LB Brent:Carnfield Road-Before Demolition


LB Brent : Carnfield Road after demolition


LB Brent: Wyld Way: Before Demolition


LB Hounslow: Example 1


LB Hounslow Example 3


6. Assisting action by other agencies: LBH, Met Police EDF • HP: Landlord arrested after he sent bailiffs to evict a tenant in

one of his properties in LBH • Led to discovery of illegally fitted meter • Further investigations let to further discoveries of illegally fitted

meters which had no proper safety checks • EDF fraud and Police liaised with LBH when they were cutting off

illegal supplies to tenants. • Joint site visits to ID tenants and get supplies re-installed • Parmar pled guilty to 5 counts of abstracting energy from

properties in LBH and asked for another 17 counts to be taken into consideration

• Sentenced to 9 months in prison and ordered to repay £91,838 lost to EDF plus £13,006 in compensation and £672 in costs


7. Conclusions: • Rogue landlords a significant and growing problem

whose impact stretches far beyond breaches of planning control

• Multi-agency approach has advantages with regard to:

• Data collection to identify scope and extent of problem • Assistance in developing appropriate policy responses for greater controls • Political and local ‘Buy-in’ crucial for successful outcomes. Need to make the

case • Deciding what service should lead at earliest practical stage • Can realise greater outcomes whether as lead or minor partner- sanctions,

income, positive perception ‘out there’, changing behaviours


7. But bear in mind that..

• Political and local ‘Buy-in’ crucial for successful outcomes. Need to convincingly make the case

• Celebrate Success- Use of Media to publicise successes, sharing info benchmarking

• Imperative that resources gained through successful action ploughed back into relevant LA services to embed good practice

• Such initiatives must be flexible and not remain focussed on initial agenda if circumstances change

• Such initiatives can be implemented with success at any level


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