Editorial | Fightback against derelict regulators and developers

With the increasing conversion across suburban Kingston of single-family dwellings to multistorey apartments, many people will share the sense of frustration and powerlessness described by this newspaper’s Boxing Day guest columnist Barry Thomas over the changing character of their communities – often with callous disregard for the rules by regulators and indifference to people’s rights by developers.

Mr Thomas recited his personal story going back two years ago in the Kingston 6 area where he has lived for 17 years. Without notice, construction began on a multistorey apartment complex on property abutting his backyard. Perhaps the developer had the requisite permits from the relevant agencies, Mr Thomas was informed. He had no chance to object. He made verbal complaints to people at the construction site, to no avail. Since then he has been subjected to construction noise, dust, trespassing, theft, destruction of property, and more-than-subtle intimidation.

Mr Thomas concluded: “Thankfully, the contractors and the workmen will eventually be gone from the back of my property. They will move on to some other unsuspecting victim. I, however, will be left with a new homeowner sitting on his or her balcony, invading my privacy, overlooking my backyard and wondering why I seem less than sociable during one of my rare visits outside.”

We sympathise with Mr Thomas and offer two observations. One is to make clear that we have no a priori opposition to multilevel apartment complexes, appreciating that they are increasingly part of modern urban dwelling. We understand, too, that communities are subject to change and transformation – hopefully, in an orderly and appropriately regulated fashion.

The other point is that while citizens and communities often feel helpless against rich developers and insouciant regulators, they are neither without power nor the capacity to assert their rights. Recent successes of citizens’ challenges underline the point.

There was, for instance, this month’s Supreme Court’s ruling in favour of a community challenger of the permits granted by the Kingston and St Andrew Municipal Corporation (KSAMC) and the National Environmental and Planning Agency (NEPA) for a now-completed four-storey development on Birdsucker Avenue, Kingston 6. The court held that the agencies had not adhered to the regulations, making the permits null and void. In another case in January, the court ordered the demolition of a town house complex in another choice Kingston 6 neighbourhood. The developers completed the property, over the objections of neighbours, before their application for the lifting of the community’s restrictive covenants was heard.

Recently, too, public complaints by residents of Earl’s Court, also in Kingston 6, apparently caused the developers of a partially built multistorey apartment complex to hustle to court seeking a change of the neighbourhood’s restricted covenants. The same matter caused the KSAMC to announce an overhaul to its oversight of construction projects.

LEGAL FEES

We applaud, and encourage, these fightbacks by citizens, but anticipate the retort that such initiatives are in affluent neighbourhoods whose residents can afford to finance court cases, with the risk, that if they lose, they will have to foot not only their own legal bills, but bear the costs of the other party. In places like Richmond Park, or Eastwood Park Gardens, which were once solidly working middle-class communities, residents could not easily afford the legal fees. Slowly, they got encroached upon and are now overrun by commercial enterprises.

There are two responses to these arguments. They are partially true. Yet, many of the people of the communities who are fighting back are not wealthy. Some are old pensioners, whose only significant assets are their homes, which they risk to maintain a quality of life on which they place no price. They spread the risk in community action.

Additionally, the possibility of leveraging state institutions such as the Office of the Public Defender is an option to be explored by these communities.

The public defender’s job is to investigate and take action on behalf of a person, or body of persons, who, in the opinion of the public defender, “has sustained injustice as a result of any action taken by an authority or an officer or member of such authority, in the exercise of the administrative functions of that authority; or … has suffered, is suffering or is likely to suffer an infringement of his constitutional rights as a result of any action taken by an authority or an officer or member of that authority”.

On the face of it, the KSAMC, NEPA, other municipal councils and public bodies are ripe for investigation by the public defender if they fail to properly undertake their administrative functions and injure the rights of citizens. Further, with respect to constitutional claims, the law says that the “Public Defender shall not be precluded from conducting an investigation in respect of any matter by reason only that it is open to the complainant to apply to a court for redress”.

Indeed, in circumstances where a complainant alleges his constitutional rights have been or are likely to be infringed, it is incumbent on the public defender to provide that person with “ready access to professional advice and, where necessary, to legal representation”, including paying for that representation if it is determined that the person needs legal aid.

At the very least, citizens who have complaints about the actions and behaviour of regulatory agencies like NEPA and the municipal authorities should be bombarding the public defender with their concerns. We believe that the Public Defender Arlene Harrison-Henry will welcome it.