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23 October 2013

Confiscation Orders: Barking up the Wrong Tree

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By Sangeeta Bedi

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Practitioners have been reminded of the range of circumstances in which confiscation orders may be sought and granted thanks to the recent case of R v Davey (Neil Patrick) [2013] EWCA Crim 1662.  The Court of Appeal upheld a £75,000 fine imposed upon Neil Davey, along with a £50,000 confiscation order handed down to him by the High Court. The case stems from the fact that Mr. Davey, a successful local auctioneer, was unable to enjoy the picturesque view of Poole harbour from his brand new hot-tub thanks to an inconveniently located 40ft Maritime pine tree. Unfortunately for Mr. Davey, this Maritime pine was protected by the council in the form of a Tree Preservation Order. In pursuit of perfecting his relaxing hot-tub experience Mr. Davey clearly underestimated the effect of the order and on 20 June 2010 the Maritime pine met its end at the hands of a local tree surgeon. At first glance the story doesn’t sound too heinous, but when one discovers that the tree belonged to his neighbour, who had previously refused to breach the order, and that the protected tree fell at approximately 2 a.m. while his neighbours slept a stone’s throw away, one may appreciate why the Court of Appeal approved such a firm line.

What was meant to be a loving surprise for his returning bride has cost Mr. Davey £125,000 (plus legal fees). The confiscation order, under the Proceeds of Crime Act 2002 equated to the appreciation in value of Mr. Davey’s property as a result of his unlawful act and was not capable of challenge in the appeal. The quantum of the fine was challenged but the Court of Appeal found that it was the appropriate redress for his cynical behaviour and his “arrogance and complete contempt for the safety and property rights of his neighbours”. The Court of Appeal went on to state that this was one of the most serious offences of its kind and that deterrence was an important element of the fine.

No doubt we will all think twice about our actions when we next pine for a home improvement. This case highlights the increase in the use by local councils of confiscation orders in cases concerning breaches of local planning or conservation regulations and may cause homeowners to reconsider the wisdom of their “off-the-record” conservatory extensions, or ad hoc tree removals. Mr. Davey now possesses the view he had always desired, but at a completely unexpected cost.

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