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Justice Lisa Ramsumair-Hinds. –
A Princes Town couple has successfully appealed convictions against them for failing to comply with a notice to demolish an apartment building at Sagan Drive, Champ Fleurs because they did not have proper planning permission.
Five judges of the Privy Council ruled that Chandra and Ingrid Silochan were wrongly committed by then-magistrate Lisa Ramsumair-Hinds, now a High Court judge, on March 24, 2017, for one of the two offences with which they were charged.
The Silochans were each convicted in summary proceedings. They were fined $700 each for the “initial offence” committed on January 17, 2006, and a further fine for a “continuing offence” of $815,200, calculated at $200 a day for 4,076 days between January 18, 2006-March 17, 2007. The total $0.8 million fine was to be shared equally between the two. The complaint against the couple was made on October 9, 2008, by a development control inspector of the Town and Country Planning Division (TCPD.).
In default of payment of the fines for which they had six months to pay, the Silochans were each sentenced to two years of imprisonment with hard labour.
In their ruling, Lords Reed, Kitchin, Hamblen, Stephens and Lloyd-Jones held that section 18 of the Town and Country Planning Act did not create the two offences for which the couple was convicted.
“The appellants ought to have been convicted of the single offence of not taking the steps required by the enforcement notice, dated October 3, 2005, continuously over the period from April 9, 2008-August 4, 2008.
This means that the couple will not be made to pay the $815,200 fine imposed by the magistrate and upheld by Appeal Court judges Prakash Moosai and Mark Mohammed in 2021.
Instead, the Privy Council said, having amended the convictions, they may now be sentenced to a maximum fine of $1,500 for the first day covered by the Town and Country Planning Division complaint, which was April 9, 2008, and $300 a day for every day up to August 4, 2008, to cover the four-month period.
The matter was sent back to the Appeal Court for sentencing based on the ruling.
At their appeal, the Silochans argued that the time for laying the initial complaint at the magistrates’ court had run out.
The two contended that the initial complaint should have been filed within six months from the time the complaint arose in January 2006.
In their ruling, Moosai and Mohammed set aside the magistrate’s conviction for the initial offence.
They also varied the fine for the continuing offence to cover 4,078 days at $200 a day, amounting to $815,600. The “hard labour” condition for failing to pay the fine was changed to “simple imprisonment,” and they were given 90 days to pay it.
“The appellants ought not to have been convicted in respect of any period after August 4, 2008…of what was considered to be one of two offences created by section 18(1) of the TCPA, namely a continuing offence,” Lord Stephens, who wrote the decision, held.
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In sending the matter of sentencing back to the Appeal Court, Stephens said the local court would be better placed to take into account all aggravating and mitigating factors, including the couple’s age, their personal circumstances and if they financially benefitted from “this unlawful development” as well as the term of the default imprisonment.
The Privy Council’s ruling clarifies how planning offences should be dealt with since local planning laws create summary offences.
In reviewing the statutory provisions of the act, Stephens held that the six-month time period ran “from the time when the matter of the complaint arose” rather than from the date upon which an offence was first committed or from when an earlier matter of complaint arose.
In analysing section 18, Stephens said it did not criminalise “carrying out a development without planning permission,” but it was the failure to comply with an enforcement notice that created a criminal offence while section 19 created a series of offences against the property owner or the person carrying out the development.
The couple purchased the property at Sagan Drive on January 24, 2002. There was an existing single-story residential building on the property at the time of purchase. They began constructing extensions to the building to accommodate a further 21 bedrooms for “multiple family use.”
A complaint was made to the TCPD and an inspector visited the property on April 3, 2002. Twenty days later, the couple applied for planning permission for the extensions of 14 bedrooms. Their application was refused and further applications, including one for the 21-bedroom development, were also denied.
Up to the time of their convictions, on March 17, 2017, the judgment said the couple failed t completely with the enforcement notice to demolish the extensions on the property.
Representing the Silochans at the Privy Council were King’s Counsel Anand Beharrylal, Sian Mc Gibbon, Omar Sabbagh and Ronald Dowlath. Attorney Robert Strang represented the TCPD inspector who laid the charges against the couple.