Chandra Silochan and another v Rickie Cedeno
| Jurisdiction | UK Non-devolved |
| Judge | LORD STEPHENS,Lord Stephens |
| Judgment Date | 02 February 2023 |
| Neutral Citation | [2023] UKPC 5 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0002 of 2022 |
[2023] UKPC 5
Lord Reed
Lord Kitchin
Lord Hamblen
Lord Stephens
Lord Lloyd-Jones
Privy Council Appeal No 0002 of 2022
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants
Anand Beharrylal KC
Sian McGibbon
Omar Sabbagh
(Instructed by Ronald Dowlath (Port of Spain))
Respondent
Robert Strang
(Instructed by Charles Russell Speechlys LLP (London))
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.
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.
On the appeals against sentence, the first principal issue is whether the imposition of a fine of TT$815,200 was incorrect as, pursuant to section 33(2) of the SCA, those parts of the complaint which refer to events more than six months before it was made ought to have been excluded. Furthermore, it is contended that those events after 4 August 2008, which was the end of the period set out in the complaint, should also have been excluded.
The second principal issue is whether the aggravating and mitigating factors including character, age, and delay were not taken into account or properly evaluated, in relation to both the imposition of the fines and in relation to imposing the sentences of imprisonment in default of payment of the fines.
It is appropriate to set out the statutory provisions relevant to the appeals against conviction.
The appellants rely on the six-month limitation period within which a complaint shall be made as set out in section 33(2) of the SCA. Section 33 provides, as follows:
“(1) Every proceeding in the Court for the obtaining of an order against any person in respect of a summary offence or for the recovery of a sum by this Act or by any other written law recoverable summarily as a civil debt shall be instituted by a complaint made before a Magistrate or Justice.
(2) In every case where no time is specially limited for making a complaint for a summary offence in the Act relating to such offence, the complaint shall be made within six months from the time when the matter of the complaint arose, and not after.” (Emphasis added).
Accordingly, under section 33(1), every proceeding in respect of a summary offence shall be instituted by a complaint and if there is no time specially limited for making a complaint then under section 33(2) the complaint shall be made within six months. In applying section 33(2) to the facts of this case, “the Act relating to” the offence under section 18(1) is the TCPA. Any offence created by section 18(1) is a summary offence. No time is “specially limited” in the TCPA for making a complaint for a summary offence. Accordingly, the complaint in this case “shall be made within six months from the time when the matter of the complaint arose, and not after.” The six-month time period runs “ 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.
Section 8 of the TCPA sets out a requirement for planning permission “for any development of land”. Section 8, in so far as relevant, provides:
“8. (1) Subject to the provisions of this section and to the following provisions of this Act permission shall be required under this Part for any development of land that is carried out after the commencement of this Act.
(2) In this Act, except where the context otherwise requires, the expression ‘development’ means the carrying out of building, engineering, mining or other operations in, on, over or under any land, the making of any material change in the use of any buildings or other land, or the subdivision of any land…”
The requirement to obtain planning permission is in aid of the legislative purpose of the orderly development of land.
Section 11 of the TCPA provides the Minister with the power to grant planning permission. Section 11, in so far as relevant, provides:
“(1) Subject to this section and section 12, where application is made to the Minister for permission to develop land, the Minister may grant permission either unconditionally or subject to such conditions as he thinks fit, or may refuse permission.”
Section 14 also provides the Minister with the power to grant planning permission to retain a development already carried out without permission. Sections 11 and 14 are in aid of the legislative purpose of the orderly development of land.
Section 16 of the TCPA makes provision for the service of an enforcement notice where it appears to the Minister that any development of land has been carried out without the grant of planning permission or where it appears to the Minister there has been a failure to comply with conditions subject to which the permission was granted. Section 16 provides:
“(1) Where it appears to the Minister that any development of land has been carried out after the appointed day without the grant...
To continue reading
Request your trial