By Alric Lindsay
Attorney Waide DaCosta addressed the Summary Court today, October 30, 2024, regarding his clients Near By The Sea Investments and James Hurlston. He explained their efforts to comply with planning enforcement notices but encountered challenges with previously engaged architects, resulting in delays of several hundred days. These delays are significant because, until after-the-fact planning approval is secured or the structure is demolished, penalties of up to $1,000 per day may accrue under the Development and Planning Act. Given that similar cases have recently been brought to court, Magistrate Hernandez exercised her discretion and imposed smaller fines rather than the potentially substantial penalties that could have been required.
Near By The Sea Investments
For Near By The Sea Investments, DaCosta highlighted the importance of the Crown understanding that central planning authority matters involve a “long, cumbersome process.” Once matters are with the central planning authority, it is up to it to exercise any discretion, including applications for variances.
In this case, an enforcement notice was served in December 2021. However, nothing was done until DaCosta got involved.
Although planning was finally engaged in March 2023 through DaCosta’s help, a long period of time had passed since December 2021, during which time daily penalties were payable.
Attorney Waide DaCosta
In this case, DaCosta noted that well-known architect Mr Fred Whittaker was engaged to assist. Whittaker’s expertise was necessary as others were reportedly unable to get the job done.
Although Mr Whittaker had come to the rescue of the client, Magistrate Hernandez indicated that approximately 600 days had passed since the date the enforcement notice was served.
Normally, the penalties could have been up to $1,000 per day. However, Magistrate Hernandez exercised her discretion, imposing a fine of $3,500 or 35 days in default. She also ordered $500 in costs payable to the Crown.
James Hurlston
In the case of James Hurlston, DaCosta explained that initially, three architects were engaged to assist with compliance with a planning enforcement notice served in November 2022. However, Hurlston did not get any assistance.
Since architect Fred Whittaker made progress for clients on other matters, he was engaged and progressed Hurlston’s application.
With Whittaker’s involvement, after-the-fact planning permission was reportedly submitted in or around August 2024.
According to the Crown’s calculations, daily penalties for 605 days would become payable due to the delays caused by parties engaged before DaCosta and Whittaker. This number was then recalculated as 592 days.
In making her decision, Magistrate Hernandez noted that Hurlston came to court on several occasions to explain all of his efforts. Therefore, the Court credited Hurlston with actively taking steps to comply with the planning enforcement notice.
Magistrate Hernandez concluded that, after considering mitigating steps, the total number of days of outstanding penalties would be reduced to 400 days. Exercising her discretion and understanding that the issues were due to parties engaged by property owners, she imposed a lower fine of $2,000 or 20 days in default. She also ordered that $500 in costs be payable to the Crown or 45 days in default.
Right to appeal
In each of the above cases, Magistrate Hernandez noted that the parties had the right to appeal within seven days.
Magistrate Hernandez
Note to readers
In the past couple of months, parties have appeared in Court to address failures to comply with planning enforcement notices. When delays occur, the parties may be subject to daily penalties of $1,000 under the Development and Planning Act. For daily penalties to cease, the parties must demonstrate to the Court that the offending structure has been demolished or that after-the-fact planning approval is progressing.
To learn more about these daily penalties, members of the public are encouraged to review section 21 of the Development and Planning Act. This states:
Penalties for failure to comply with certain enforcement notices
21. (1) Subject to this section, where an enforcement notice has been served under section 18 on the person who was, when the notice was served on that person, the owner or occupier of the land to which the enforcement notice relates and within the period specified in the enforcement notice, or within such extended period as the Director may allow, any steps required by the enforcement notice to be taken (other than the discontinuance of any use of land) have not been taken, that person commits an offence and is liable on summary conviction to a fine of five thousand dollars and, in the case of a continuing offence, to a further fine of one thousand dollars for every day after the first day during which the requirements of the enforcement notice (other than the discontinuance of any use of land) remain unfulfilled.
(2) If a person against whom proceedings are brought under this section has at some time before the end of the period specified in the enforcement notice for compliance with the notice (or of such extended period as the Director may allow for compliance with the notice) ceased to be the owner or occupier of the land, that person shall, upon information duly laid by that person and on giving to the prosecution not less than three days’ clear notice of that person’s intention, be entitled to have the person who then became the owner or occupier of the land joined in the proceedings.
(3) If, after it has been proved that any steps required by the enforcement notice have not been taken as aforesaid, the original defendant proves that the failure to take the steps was attributable in whole or in part to the default of the person joined in the proceedings as aforesaid, that person may be convicted of the offence and if the original defendant further proves that the said original defendant took all reasonable steps to secure compliance with the enforcement notice, the said original defendant shall be acquitted of the offence.
