Editorial | Discharge restrictive covenants before construction

As this newspaper reminded on Sunday, it is not only private citizens who are increasingly disquieted by the habit of developers, and others, of trespassing on the restrictive covenant laws then seeking to rectify their breaches either via applications to the courts or appeals to regulators. The courts, too, have signalled a willingness to be tough against the recalcitrants.

The Government and Parliament, however, have been laggards. They must now take note and do something to protect the interest of citizens and make it more difficult for developers to misbehave, especially with regard to their attitude to restrictive covenants.

The failure of developers to do the right thing from the start is often a form of bullying and intimidation. Deep-pocketed, they may proceed to build without restrictive covenants being either modified or lifted. Usually, they assume that affected persons and communities do not have the wherewithal to mount legal challenges, or if they do, the horse has already bolted. Developers, in the process, establish a fait accompli.

More and more, though, individuals and neighbourhoods are fighting back – and scoring victories in court. Further, judges have been calling out not only developers who flout the rules, but the nonfeasance, and worse, of permissive regulatory agencies.

The message, it appears, has been getting through.

After a series of thumping criticisms by judges for failing in its job as regulator, the Kingston and St Andrew Municipal Corporation (KSAMC), the capital’s local government, has, in recent months, been overhauling its regime for approving building permits. It has also been retrofitting its regime for the oversight of construction sites. And as our reporting highlighted on Sunday, the corporation appears to be becoming more responsive to citizens’ complaints against commercial enterprises, which, without the requisite permissions, set up in communities and change the character of neighbourhoods. Another route of sorts to fait accompli.

Indeed, the practice of establish-first-and-catch-up-with-the-law-later is one against which Court of Appeal Judge Marva McDonald-Bishop recently spoke out during oral arguments in a case in which developers are attempting to save their property from demolition, which was ordered for breaches of building permits and other regulations, including restrictive covenants.

GENUINE CONCERN

“I have a genuine concern,” Justice McDonald-Bishop, then acting as president of the court, said. “Why is it that this practice has developed to the point where it has crystallised into serious custom?”

Because they mostly got away with it. Which is the foundation of impunity.

The judge was right that the habit has now grown “notorious” and that it is happening “right across the country”. This newspaper also welcomes her assertion of the court’s obligation “to take a serious position on it”. Indeed, as Justice McDonald-Bishop observed, that might help as a deterrent. For no investor wants to imperil tens of millions of dollars, which is the prospect facing developer Martin Lyn and his two children, Melissa and Martyn, in the matter now before the Court of Appeal. Even more money is at stake with regard to other developments that have been challenged.

Justice McDonald-Bishop’s declaration notwithstanding, there are two significant issues that have to be taken into account before matters reach the courts for adjudication. The process starts with what the law says and how it is enforced.

With respect to the former, it is important that the regulatory authorities do their jobs properly. On the basis of recent findings by judges, the regulators have been disastrous. More than once in recent times, judges chastised both the National Environment and Planning Agency and the city’s local government for the weak-kneed ineptitude with which they carried out their mandates and let down the citizens. These agencies must now do better – from improving how they review applications and award permits to their policing of construction. These agencies have to be transparent and have the confidence to robustly prosecute regulatory breaches.

CHAMPION CITIZENS' RIGHTS

Critically, too, the Government and lawmakers must look out for, and champion, citizens' rights. In 2020, in the face of criticism for not issuing stop orders against a developer who had multiple building-permit breaches, the KSAMC latched on to the point that its permits did not extend to how someone dealt with the issue of restrictive covenants.

Indeed, there is nothing in the law that says that a developer has to have a court-approved modification of the convents before construction can begin, which would be the sensible sequencing of things. Rather, the Restrictive Covenants (Discharge and Modification) Act merely empowers a judge, on the application of the planning authorities or an interested party, to verify, modify, or retire a restrictive covenant.

At the time, this newspaper suggested, and repeats now, that the law should be changed to ensure that restrictive covenants are discharged before construction can begin. Citizens must be directly and specifically informed about applications for changes to an area’s restrictive covenants. Residents should not be made to face a de facto fait accompli. Having that discharge should be on the checklist of the building regulator.

Special administrative arrangements, with transparent oversight, should be put in place to deal with routine applications for the varying of restrictive covenants and the fast-tracking of those matters that are challenged and go before the courts.