Robert Strang Instructed by Charles Russell Speechlys LLP (London) for the Respondent
The appellants, Chandra Silochan and Ingrid Silochan, were each convicted on 24 March 2017 in summary proceedings before Her Worship Ms Ramsumair-Hinds (“the Magistrate”) of an offence under section 18(1) of the Town and Country Planning Act (Chapter 35:01) (“the TCPA”) of failing to comply with a planning enforcement notice (“the Enforcement Notice”). The appellants had carried out a development on their property at Lot No 32 Corner Sagan Drive and North Drive, Champs Fleur, in North West Trinidad (“the property”) consisting of extensions to an existing residential building, without the grant of planning permission. On 9 October 2008, Rickie Cedeno, Development Control Inspector I (“the respondent”) made a complaint against the appellants in which it was asserted that “during the period January 16, 2006 to August 4, 2008”, the appellants had failed to comply with the Enforcement Notice, dated 3 October 2005, which required them by 16 January 2006 to demolish the development on the property.
Upon convicting the appellants, the Magistrate imposed a fine of TT$700 on each of them “for the initial offence” committed on 17 January 2006 and a “further fine” for the “continuing offence” of TT$815,200 to be shared equally by both appellants, calculated at TT$200 per day for each of the 4,076 days between 18 January 2006 and 17 March 2017 (which was the last day in respect of which there was evidence before her that the offending extensions were still in place). In default of payment of the fines within six months, the appellants were each sentenced to two years’ imprisonment with hard labour.
The appellants appealed against both conviction and sentence. The Court of Appeal in a judgment dated 5 October 2021, delivered by Moosai JA, with which Mohammed JA agreed, set aside the appellants’ convictions for what it termed the “initial offence” committed on 16 January 2006 for failing to comply with the Enforcement Notice. It did so on the basis that the complaint in relation to the initial offence had been made outside the six-month period required by section 33(2) of the Summary Courts Act (Chapter 4:20) (“the SCA”). As a consequence of allowing the appeals against conviction in relation to the initial offence, the Court of Appeal set aside the fines on each of the appellants of TT$700 for those offences. However, the Court of Appeal upheld the appellants’ convictions for what it termed the “continuing offence” of failing to comply with the Enforcement Notice committed between 17 January 2006 and 17 March 2017. The Court of Appeal also upheld the fine of TT$815,200 for the continuing offence and upheld the imposition of two years’ imprisonment in default of payment of the fine. However, the Court of Appeal removed the imposition, during imprisonment, of hard labour on the basis that this was excessive.
On 1 April 2022, the Board granted the appellants leave to appeal against both conviction and sentence and granted a stay of the Court of Appeal’s order on sentence pending determination of the appeal.
The principal issues on the appeals against conviction
On the appeal against conviction, the first principal issue is the six-month limitation of time in section 33 of the SCA for the making of a complaint. Whether the complaint was made outside the period of six months depends on whether the offence of failing to comply with an enforcement notice under section 18(1) of the TCPA creates two offences (an initial offence and a continuing offence), or a single offence which can take place continuously over a period of time. If the latter, then the question is whether, as the appellants submit, it is a precondition to a conviction under section 18(1) of the TCPA that the person must first have been convicted for an offence committed on the “first day” upon which there was a failure to comply with the enforcement notice. If, as the appellants contend, it creates a single offence subject to the precondition that the person must first have been convicted for an offence committed on the “first day” upon which there was a failure to comply with the enforcement notice then “the matter of the complaint arose” in relation to that first day on 16 January 2006, with the consequence that the complaint made on 9 October 2008 would have been made outside the six-month period. However, if it was a single offence which can take place continuously over a period of time, without any such precondition, as the respondent contends, then the complaint would have been brought in time, at least, in respect of the six-month period prior to the laying of the complaint.
The second principal issue on the appeals against conviction concerns the failure of the Magistrate to comply with the obligation in section 130B(1) of the SCA, where a notice of appeal has been given, to draw up and sign a statement of the reasons for her decision.