Editorial | Get about chopping the weeds

It isn’t public knowledge if Prime Minister Andrew Holness is in the habit of reading the judgments of the courts other than, maybe, those in which he was personally involved. Even if he isn’t, this week’s ruling by Justice Natalie Hart-Hines on the Roseberry Avenue restrictive covenant matter is highly recommended prime ministerial reading. And for far more than the literary flourishes that judges tend to have a go at.

Justice Hart-Hines began her ruling with a quote from Hamlet’s soliloquy, from the second scene of the first act of the Shakespeare play, after he had been lectured by his duplicitous and murderous uncle, Claudius, about the inevitability of death and for Hamlet, too, deeply mourning the death of his father, the murdered king: “Tis an unweeded garden that grows to seed. Things rank and gross in nature.”

Then the judge added this:“The garden metaphor in Hamlet was used by Shakespeare to represent the decay of a country when it becomes lawless and corrupt because those who are tasked with the responsibility for pruning and managing it fail to carry out their responsibility. In this case, it seems that the Kingston and St Andrew Municipal Corporation (KSAMC) and the National Environment and Planning Agency (NEPA) have been dilatory in their mandate to enforce local planning laws and regulations and to promote sustainable development in respect of the building situated in the property, which is the subject matter of this application.”

Since an ease on density restrictions under development orders issued in 2017, there has been a flurry of construction of high-rise, multifamily homes in Kingston and St Andrew. Nonetheless, it isn’t a free-for-all.

LESS THAN AN ACRE

Multifamily homes, for example, aren’t supposed to be built on lots of less than half an acre of land. If the planning authorities allow an exception to this rule, it must be because the developer made an extremely compelling case. Further, many communities, such as Acadia in Kingston 8 – with its single-family bungalows on large lots of land – remain subject to restrictive covenants, changing which requires the consent of the court.

The lot of land on 10, Roseberry Avenue, which was the primary subject of the dispute that was before Justice Hart-Hines, is 0.421 acres that, in normal circumstances, should have made it ineligible for multifamily home construction. Yet NEPA provided the lot’s developer environmental permits and licences, and the KSAMC approved construction of 12 one-bedroom apartments on the property. The community was still subject to the covenant, allowing only single-family units.

Said Justice Hart-Hines: “Armed with these permits, the applicants proceeded to commence construction, ostensibly unsupervised by the KSAMC. At this time, the building is in breach of the general conditions of the building approval since the building consists of 32 bedrooms (contained in 15 units) instead of the 12 one-bedroom units which were approved. It would seem at the very least the building inspectorate failed to inspect the building at crucial stages of the construction. Had such an inspection been done, the breaches would have been apparent.”

Justice Hart-Hines knew of the breaches because she visited the site twice - on consecutive days in October – as part of her adjudication of a neighbour’s objection to the developer’s application for a change to the neighbourhood’s restrictive covenant. The neighbour was concerned that his home would lose its privacy by being overlooked by a multistorey building. He feared, too, that the development would change the general character of the neighbourhood. At the time of the court hearing, the building, by the developer’s estimate, was 70 per cent completed.

This case rehashes many similar complaints of recent years and the consistent failure of public agencies and officials to properly perform their jobs, notwithstanding persistent highlighting of what Justice Hart Hines described as their “dilatory” approach to matters.

OVERSTEPPING AUTHORITY

In last year’s Birdsucker Avenue case involving a development at Birdsucker Avenue, not far up the road from Acadia, a judge similarly chastised NEPA and the KSAMC for wantonly overstepping their authority in giving the greenlight to a multistorey apartment complex, whose construction also breached the basic terms of its approval.

When the Roseberry Avenue matter first surfaced publicly early in the year, this newspaper proposed that the law be amended or that it become a condition of building approvals that, in areas where restrictive covenants exist, construction outside the restrictions cannot commence until the covenants are lifted. Too often, developers begin construction in an effort to create a fait accompli on the assumption that the objectors cannot afford the financial cost of litigation. The intention, therefore, was to place an obligation on the State to ensure that developers play by the rules, although, as Justice Hart-Hines and others have pointed out, there is no assurance that they will.

This newspaper often argues that when obviously bright and otherwise rational people consistently engage in irrational auctions, it must be that such behaviour makes sense to someone. What that is, is what Prime Minister Holness should be keen to discover and the reason why he should cause a deep and forensic review of the operations of NEPA, the KSAMC, and the other municipal corporations. For instance, under the Local Governance Act of 2016, municipal authorities can invite community members and representatives of the private sector and/or civil society groups to sit on standing committees, one such of which deals with the building approvals. It would be useful to determine if, and how sincerely, this authority has been exercised.

Justice Hart-Hines’ observation about what happens to societies when the weeds are not hoed is well known and well understood by Jamaicans. The reminder, however, is timely.