Derek Achong

A Princes Town cou­ple has suc­ceed­ed in their fi­nal ap­peal over be­ing or­dered to pay a sub­stan­tial $815,200 fine for fail­ing to abide by an or­der from the Town and Coun­try Plan­ning Di­vi­sion to de­mol­ish unau­tho­rised ad­di­tions to their prop­er­ty.

De­liv­er­ing a judge­ment last week, five Law Lords of the Unit­ed King­dom-based Privy Coun­cil up­held Chan­dra and In­grid Silochan’s ap­peal as they pro­vid­ed a de­tailed in­ter­pre­ta­tion of the pro­vi­sions of the Town and Coun­try Plan­ning Act.

In 2002, the Silochans pur­chased a sin­gle-sto­ry home in Champ Fleurs and be­gan to con­vert it in­to mul­ti­ple apart­ments.

The cou­ple ap­plied for plan­ning per­mis­sion for the project but were re­fused by the di­vi­sion.

On No­vem­ber 21, 2005, the di­vi­sion’s de­vel­op­ment con­trol in­spec­tor Rick­ie Ce­de­no served the Silochans with an en­force­ment no­tice to de­mol­ish the un­ap­proved ad­di­tions by Jan­u­ary 15, 2006.

The di­vi­sion wait­ed un­til Oc­to­ber 2008 to file a com­plaint against the cou­ple for fail­ing to abide by the no­tice.

In ear­ly 2017, for­mer mag­is­trate and cur­rent High Court Judge Lisa Ram­sumair-Hinds found the Silochans guilty of two of­fences un­der Sec­tion 18 of the leg­is­la­tion. One of­fence was for the cou­ple ini­tial­ly fail­ing to meet the dead­line for de­mo­li­tion, while the oth­er was for them fail­ing to com­ply from the day af­ter the dead­line to the date of their even­tu­al con­vic­tion be­fore her.

The Silochans were fined $700 for the ini­tial breach and $815,200 for the con­tin­u­ing breach, which was cal­cu­lat­ed at $200 per day for 4,076 days be­tween 2006 and 2017. The cou­ple were al­so or­dered to serve two years in prison with hard labour if they failed to pay the fines.

In Oc­to­ber 2021, the Court of Ap­peal par­tial­ly up­held the cou­ple’s chal­lenge over the han­dling of their case.

The Ap­peal Court ruled that the di­vi­sion could not pur­sue the ini­tial of­fence as its com­plaint was filed be­yond the six month time lim­it for do­ing so un­der the Sum­ma­ry Courts Act.

How­ev­er, it ruled that their con­vic­tion for the con­tin­u­ing of­fence was valid and the sen­tence im­posed was ap­pro­pri­ate. The Ap­peal Court al­so ruled that the cou­ple should face sim­ple im­pris­on­ment and not hard labour if they failed to pay the fine.

In de­ter­min­ing the case, Lord Ben Stephens dis­agreed with the lo­cal courts’ in­ter­pre­ta­tion that the leg­is­la­tion cre­at­ed two dis­tinct of­fences.

“Rather, it cre­ates a sin­gle of­fence which can take place con­tin­u­ous­ly over a pe­ri­od of time and which spec­i­fies two po­ten­tial max­i­mum fines in re­la­tion to that sin­gle of­fence,” Lord Stephens said.

He stat­ed that a max­i­mum fine of $1,500 could be ap­plied for fail­ing to abide by the no­tice on the first day cov­ered by the com­plaint and not on the dead­line set on the no­tice.

“The Board de­ter­mines that the words “the first day” do not re­fer to the first day up­on which there was fail­ure to com­ply with the en­force­ment no­tice but rather they re­fer to the first day cov­ered by the com­plaint dur­ing which the re­quire­ments of the en­force­ment no­tice re­main un­ful­filled,” Lord Stephens said.

He sug­gest­ed that the $300 per day fine would ap­ply to every day af­ter the first dur­ing the pe­ri­od of the com­plaint.

Lord Stephens point­ed out that the com­plaint could on­ly ap­ply to the six months of non-com­pli­ance that pre­ced­ed it (the com­plaint) and not for the en­tire pe­ri­od of non-com­pli­ance.

Based on his find­ings, Lord Stephens amend­ed the cou­ple’s con­vic­tions so they were each con­vict­ed of a sin­gle of­fence of fail­ing to com­ply be­tween April and Au­gust 2008.

Lord Stephens and his col­leagues re­mit­ted the case to the Court of Ap­peal to de­ter­mine the ap­pro­pri­ate sen­tence for the cou­ple for the 118 day pe­ri­od.

“The Court of Ap­peal is bet­ter placed than the Board to ob­tain in­for­ma­tion as to, for in­stance, the age and per­son­al cir­cum­stances of the ap­pel­lants to­geth­er with de­tails as to the fi­nan­cial ben­e­fit, if any, which they have ob­tained by this un­law­ful de­vel­op­ment,” he said.

The cou­ple was rep­re­sent­ed by Anand Be­har­ry­lal, KC, Sian McGib­bon, Omar Sab­bagh, Ronald Dowlath, and Melis­sa Ram­di­al. Robert Strang rep­re­sent­ed the di­vi­sion.