TWO members of a Princes Town family have been given three months to pay a $.8 million fine for their continuing failure to comply with a notice to demolish an apartment building at Sagan Drive, Champs Fleurs, because they did not have proper planning permission.
In a decision delivered on Tuesday, Justices of Appeal Prakash Moosai and Mark Mohammed varied a magistrate’s order against Chandra and Ingrid Silochan.
In 2017, the two were convicted by then magistrate Lisa Ramsumair-Hinds of the complaint filed against them by the Town and Country Planning Division (TCPD) in 2008.
They were each fined $700 for failure to comply with the notice on the initial offence committed on January 17, 2006. Since the offence continued up to August 2008, they were fined a further $815,200 – or $200 a day from January 18, 2006-March 17,2017 – or two years’ hard labour in default.
The total $.8 million fine was to be shared equally between the two.
The Appeal Court had to determine whether the time for laying the initial complaint at the magistrates’ court in 2008, had run out as their attorneys Gilbert Peterson, SC, and Terrence Bharath had argued.
The two contended that the initial complaint should have been filed within six months from the time the complaint arose in January 2006.
In allowing the appeal in part, 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.
In his ruling, Moosai said the seriousness of the offence was a “particularly aggravating feature,” especially the continuing failure to comply with the requirements of the TCPD’s enforcement notice. He said the act had the effect of “undermining the system of planning and development control as a whole.”
At their appeal, the two had argued that they were not guilty and the lower court had no jurisdiction to hear the matter. They also argued the decision was erroneous and the sentence “unduly severe.”
Moosai said the Town and Country Planning Act fixed different penalties for an initial offence and a continuing offence under section 18.
Since the complaint was laid 32 months after it was determined the two had no permission to construct the apartment complex, it was time-barred, Moosai held, so the court set aside the conviction for that offence.
However, he said the prosecution for the continuing offence was different, as the legislation imposed a continuing obligation to comply. He said this appeared to be indefinite once the requirements of the enforcement notice remained unfulfilled.
“Until fulfilled, the appellants were in breach of the criminal law.”
In examining the TCP Act, Moosai said it was noteworthy that the general scheme of planning legislation did not criminalise failure to obtain planning permission for any development.
He said in the exercise of its constitutional imperative to make laws for peace, order and good governance, Parliament had seen fit, under its planning regime, to criminalise specific conduct.
Any continuing breach did constitute a criminal offence until there was compliance.
He pointed out that the statutory objective under the act was to maintain some measure of control over the orderly use and development of land and the overriding obligation to comply with its requirements.
In 2002, officials from the TCPD visited the Champs Fleurs development to investigate a complaint of unauthorised construction. It was observed that the original single-storey structure contained an additional upper level.
Plans for the property were requested and the TCPD was given a proposed development plan for 21 bedrooms. It was determined that the development was unauthorised, since there was no planning permission for it. It was also found that it did not conform to building standards for the site, which required certain minimum building setback distances.
On April 23, 2002, Chandra Silochan sought permission to develop the property to include a 14-bedroom multiple-family residential building.
On another site visit in June 2005, an ongoing development was observed, with additions at both the ground and first-floor levels.
In November 2005, an enforcement notice was issued and between 2006 and2008, no adjustment was made to the building, in compliance with the notice. The complaint was then filed in October 2008.
The Silochans applied three times for planning permission but all were refused.