IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Criminal Case No: 46 of 2008

SUVA CITY COUNCIL

V

1. JUSTIN CHANEL
2. SHOBNA CHANEL

For Prosecution: Mr. Lajendra
Accused: Mr. Haniff F.

RULING

1.	Both accused were charged for "Failed to comply with notice from building Surveyor" contrary to Regulations 17 (5) and 137 (1) of the Towns (Building) Regulations made pursuant to Public Health Act, Cap 111 and had found guilty for the same by my sister magistrate on 28th October 2009.

2.	Counsel appeared on behalf of accused had made oral submission in mitigation. When this case adjourned for sentencing there was a change in magistracy and this case came up before me for the purpose of sentencing. 

3.	On 01st February 2010, counsel appeared on behalf of the accused sought time for re-mitigation. On 26th Mach 2006, counsel for the accused informed the Court that he has different instructions from his client and they are challenging the fact that this particular offence is a continuing offence. Counsel informed that they are not disputing the finding of guilty and they are admitting that there is a breach. 

Issue to be determined

4.	Both parties moved time to address the issue, that is, whether this particular offence is a continuing offence or a once and for all offence, in writing. With the allowance of Court both parties filed written submission and on the request of the counsel for the accused, Court allowed the counsel to make oral submissions as well. 

5.	According to the counsel for the accused, a breach of Regulation 17 (5) of the Public Health Act [Cap 111] is a "once and for all" offence and apart from the breach on 18th April 2008 there is no evidence before the Court that accused continued with the extension work. It was further submitted that when accused breached the "stop work" notice on 18th April 2008 the offence was completed and there were no other instances on which the stop work notice issued by the Council.

Sec 17 (5) of the Public Health Act [Cap 111]

The building surveyor may, if satisfied that any building is being erected in substantial contravention of these Regulations, by notice in writing given to the builder, require the builder to stop building operations to such extent as the building surveyor thinks necessary in each case until the building surveyor is satisfied that the builder can and will comply with the provisions of these Regulations, and every person failing to comply with or observe any such notice shall be guilty of an offence against these Regulations. Immediately the building surveyor takes action, as indicated hereunder, to stop work, he shall report that fact to the Board, with full particulars of the circumstances and with his reasons for stopping the work.

6.	Penal provision for the above-mentioned offence is in sec. 137 (1) of the Public Health Act [Cap 111].

Sec. 137 

(1)	Any person who erects a building in contravention of these Regulations shall be liable to a fine not exceeding $ 100 and also a daily fine not exceeding $ 10 per day for any continuation of the offence.

7.	When considering the both Sec. 17(5) and Sec. 137 (1) of the Public Health Act [Cap 111], it is very clear that a non compliance of "Stop Work" notice (issued by a building surveyor) creates an offence and this particular piece of legislation does not require the building surveyor to keep on issuing ‘Stop Work’ notices for the purpose of proving the continuation. The manner in which this particular legislation is drafted makes it clear that the issuance of ‘Stop Work’ notice is once and for all action and until such time the offender obtains a licence he is barred from erecting the building. 

8.	According to the submissions orally made on behalf of the accused, section 35 of The Building Act 1984 of United Kingdom is same as the section 137 of the Public Health Act of Fiji and thereby this Court could be guided by the UK decisions made regarding the issue of "continuation" of the offence. In support of his argument counsel provided following UK decisions to the Court.

1.	Torridge District Council v. Turner – 1991 The Times Law Reports 542 (judgment on 15th November 1991 by Woolf LJ)

2.	Penton Park Homes Ltd v. Chertsey Urban District Council – Queen’s Bench Division – Divisional Court Decision on 17 October 1973 by Bridge J

3.	Hertsmere Borough Council v. Alan Dunn Buildings Contractors Ltd – [1985] Crim LR 726 by Neill LJ on 24th May 1985

9.	For the purpose of comparison it is important to consider relevant legislature both in Fiji and UK.

Public Health Act (Cap 111) – Laws of Fiji
Sec. 137 

1.	Any person who erects a building in contravention of these Regulations shall be liable to a fine not exceeding $ 100 and also a daily fine not exceeding $ 10 per day for any continuation of the offence.

2.	Any person who neglects to comply with any provision of these Regulations, shall, where a penalty is not elsewhere prescribed, be liable to a fine not exceeding $ 10 for a first offence or $ 20 for a second and subsequent offence; and also in either case a daily fine not exceeding $ 1 per day for any continuation of the offence.

Building Act 1984 of UK
Sec. 35

If a person contravenes any provision contained in building regulations, other than a provision designated in the regulations as one to which this section does not apply, he is liable on summary conviction to a fine not exceeding level 5 on the standard scale and to a further fine not exceeding £ 50 for each day on which the default continues after he is convicted. [Emphasis mine]

10.	When considering the wording of UK Building Act 1984, it is clear that sec. 35 identifies a ‘continuing offence’ only in situations where a conviction has been entered and the default continues despite of the conviction. However, Public Health Act [Cap 111] has been drafted in completely different manner and thereby according to my view it is not safe to follow the guidelines set out in UK in interpreting the term of "continuing offence". 

11.	Another argument advanced orally by the counsel for the accused was that "what would be the situation if the builder decided to abandon the work completely after being served with a ‘Stop Work’ notice and in such situation would the builder’s non-enthusiasm to obtain a licence amounts to a continuing offence?"

12.	For a building surveyor to issue a ‘Stop Work’ notices there should be an erection of a building in contravention to the Regulations. As long as the builder complies with or observes such notice he will not be committing any offence. However, if the builder chose to ignore the "Stop Work’ notice and keep on erecting the building he will be committing an offence and if the builder completes the structure expecting approval will be liable for continuing the offence. 

13.	According to the counsel for the accused, there is no evidence to prove that the accused continued with extension work after 18th April 2008 and thereby no continuation.

14.	However, according to the evidence of the prosecution witness Sailesh Narayan, on 21st October 2009 he has witnessed that the work has been completed without being approved by the Suva City Council. The evidence has not been challenged by the defence. 

15.	According to the above evidence, it is apparent that the accused had continued the work despite of the ‘Stop Work’ notice and had in fact completed the structure without approval. Hence, the counsel’s argument about having no evidence is without merit.

16.	As per the above-mentioned reasons mentioned in my ruling I refuse to admit the submissions made on behalf of the accused stating that this particular offence is a ‘once and for all’ offence and the prosecution had failed to prove the continuation. Hence, I decide that this offence which committed in contrary to Regulations 17(5) and 137 (1) of the Towns (Building) Regulations made pursuant to Public Health Act [Cap 111] is a continuing offence and the particular breach continued commencing from 18th April 2008 to 21st October 2009.

17.	Accused is ordered to pay $ 100 as fine and for each continuing date $ 50 as fine. (Order made in pursuant to the sec. 56 (2) of the Sentencing and Penalties Decree 2009 and total number of dates to be calculated commencing from 18th April 2008 to 21st October 2009).

18.	Sixty days to pay the fine and the accused is order to pay the fine at the Suva City Council office. 

19.	28 days to appeal.

On this Friday the 09th July 2010

Kaweendra Nanayakkara
Resident Magistrate