Judge penalises NHT for bullying landowner
Published:Wednesday | February 28, 2018 | 12:00 AM
A Supreme Court judge has criticised the National Housing Trust, NHT, for "high-handed" behaviour and drawing on the power of the State to enforce its will on a landowner with whom it had been unable to reach an agreement through normal commercial negotiations.
Justice Carol Lawrence-Beswick said the NHT's actions demonstrated a dogged determination to use land owned by Treebros Holdings Limited at Creighton Hall Estates in St Thomas for its own purposes. NHT spent millions of dollars on preparatory work on a 40-acre property it was developing, all with the firm expectation that Treebros' land would be available for its use, she said.
In her ruling on the lawsuit filed by Treebros, an overseas company registered in Jamaica, Lawrence-Beswick said that even with the absence of consent to enter the property, NHT introduced flood water, its machinery, rubble and its representatives on to the land, causing erosion and a diminution in its value.
The judge awarded damages to Treebros for nuisance and negligence, to be calculated based on the value of the land as at December 2017, had there not been any water damage and the value in its damaged state. She also awarded damages of $100,000 against NHT for trespass, plus the cost for clearing the debris that NHT's representatives deposited on Treebros' property, as well as interest at six per cent per annum on all the damages dating from December 13, 2012.
The court also granted a permanent injunction restraining the state housing agency from entering or remaining on the Treebros property or discharging water there.
NHT's attorney, Manley Nicholson, told the Financial Gleaner that an appeal has been filed against the judgment.
According to the court decision delivered in January, Treebros contended that storm water drained from the NHT development was directed on to its land without agreement, or without an easement.
Easement discussions
There were discussions between the parties about granting the easement in 2012, for which NHT offered to pay Treebros $1.3 million for that right. However, Treebros said that among other property owners in the area impacted by the development, NHT had offered it the lowest compensation, although it had the largest acreage of land. The company asked for increased compensation, but the issues were not resolved. It sued NHT in April 2013.
In the case argued by NHT, the agency pointed to legislation, which declared lands incorporating the Treebros property as a flood water control area, under the Flood Water Act, effective February 25, 2016.
The judge noted, however, that the gazetting of the flood water area happened months ahead of the scheduled September 2016 trial of the Treebros lawsuit.
Treebros' attorney, Andre A.K. Earle, argued that by repeatedly entering the property and discharging water on to the land, NHT's actions were spiteful, including a threat to compulsorily acquire Treebros' property.
Justice Lawrence-Beswick noted that a private developer would not have had the ability to behave in the same manner as NHT, which was all but demanding consent from its neighbours.
"In my view, NHT took advantage of its status as a body corporate established under the National Housing Trust Act. This high-handed behaviour would have been deserving of an award for aggravated damages," Lawrence-Beswick said.
She noted, however, that aggravated damages are not recoverable by a limited liability company, explaining that where such an award is made it would be compensation for a natural person's hurt feelings.
Notwithstanding, the judge ruled that the actions of the NHT deserved special consideration and awarded costs on an indemnity basis against the housing agency, which means it will be liable for a larger legal bill.