Anand Beharrylal KC leads in successful appeal in the Judicial Committee of the Privy Council

Anand Beharrylal KC, leading Sian McGibbon and Omar Sabbagh instructed by Ronald Dowlath (Port of Spain, Trinidad), appeared for the appellant property owners (husband and wife) in an appeal involving difficult questions of statutory interpretation arising from the creation of summary offences in planning law. The appellants had purchased a property with an existing building and retained an architect to prepare plans to extend the building and later to apply for planning permission in relation to the extension. The planning authority ultimately refused permission and issued an enforcement notice requiring the demolition of the extension. The appellants reapplied for planning permission, which was refused and the planning authority subsequently issued a complaint by summons against each appellant for breaching the enforcement notice.

Following a trial in the Magistrates’ Court the appellants were convicted of two offences, one initial offence of failing to comply with the enforcement notice on the first day and a subsequent continuing offence for each day thereafter; the prosecution having made submissions that the Town and Country Planning Act created these two offences. The Magistrate accepted these submissions and convicted the appellants accordingly and sentenced them to a fine of $700 for the initial offence and $815,000 for the continuing offence. In default of payment of the fines the appellants were each sentenced to two years’ imprisonment with hard labour.

The appellants appealed to the Court of Appeal against conviction and sentence. The court allowed the appeals against conviction and sentence in part. It set aside the appellants’ convictions for the initial offence on the basis that it was time-barred as it had been laid outside the six months required by the Summary Courts Act. This had the effect of setting aside the fine for that offence. However, the court upheld the conviction for the continuing offence and also the substantial fine and period of imprisonment in default, save that it allowed the appeal against the imposition of hard labour.

Anand was instructed by the appellants to appeal to the Privy Council by making a direct application for leave to appeal against both conviction and sentence; as well as for a stay of the Court of Appeal’s order on sentence pending determination of the appeal. The Privy Council granted permission to appeal against conviction and sentence and a stay pending appeal.

The appeal against conviction centred around the offences (which the lower courts had respectively acquitted and convicted the appellants of) arguing there was in law only one offence, which had to be laid as required by statute within six months; as well as a failure of the Magistrate to give full reasons for her decision. The appeal against sentence, if the conviction were upheld, was in relation to the imposition of the very substantial fine, which it was argued could not relate to the period more than six months before the complaint was issued and should end on the last date in the complaint. Additional sentencing arguments were raised in relation to the relevant aggravating and mitigating factors to be taken into account and whether a period of imprisonment in default was applicable.

The Privy Council reserved its decision after argument. In a detailed judgment it carried out a careful review of the statutory provisions and the authorities cited during argument and emphasised the importance of the actual wording of the statute and accepted that a single offence had been created which could be committed over a period of time, that the first day related to the first day covered by the complaint, that the failure to comply with an enforcement notice gives rise to cause for complaint on each day of the failure, the six month time limit runs from the time when the matter of complaint arose as distinct from when it was first committed or its earliest date, parts of a complaint that refer to events more than six months before it was made are excluded and parts of a complaint which refer to events after the last date in the complaint are also to be excluded.

Accordingly, the Privy Council allowed the appeal against conviction as it related to two offences and amended the complaint to reflect one offence. The appeal against sentence was also allowed against the substantial fine as it had been calculated in relation to excluded periods as well as the appeals against the sentences of imprisonment by default. Sentencing has been remitted to the Court of Appeal.

This decision of the Privy Council for Trinidad and Tobago is the most substantial and recent review of the operation and application of planning offences under the Town and Country Planning Act by a final appellate court and will have broad application in the development of how planning offences created by similarly worded statutes are dealt with in the Commonwealth Caribbean and other common law jurisdictions.

Links:

https://guardian.co.tt/news/couple-win-815-appeal-in-privy-council-6.2.1627646.15db9a6519

Privy Council overturns couple conviction – Trinidad and Tobago Newsday

https://www.guardian.co.tt/news/2-win-conviction-for-failing-to-abide-town-and-country-order-6.2.1395363.982ff8ba91