Patricia Green | Despite legal recourse, construction continues unabated

“I have the right to do anything,’ you say – but not everything is expedient: All things are lawful for me, but I will not be brought under the power of any…” biblically wrote St Paul to the Corinthians.

What is lawful for multifamily residential developments? What lessons have emerged from legal proceedings that citizens may appropriate to situations in their neighbourhoods? What action should be applied? In summary, there are four cases that highlight key issues with court rulings, that epitomise recurring themes across neighbourhoods in the Kingston Metropolitan Area (KMA).

Proprietors opposed owner of 18 Upper Montrose Road, Kingston 6, St Andrew, desiring a Restrictive Covenant Discharge and Modification from single residence. Approvals for development are subjected to fulfilment of modification or discharge of any restrictive covenants. The court revealed this development approval stated, “failure to comply with the conditions … will be considered a breach and will render this approval NULL and VOID…”. However, construction commenced August 2017 without covenant restriction removal. Afterwards, its removal application was made in September 2017. The case explained that in spite of a December 2018 injunction restraining the continuation of construction and development, the project was carried to completion across three years and five court days later. Another court ruling is pending for March 2022.

CONTESTED DEVELOPMENT

Proprietors contested development at 17 Birdsucker Drive, Kingston 8, St Andrew, against Kingston and St Andrew Municipal Corporation (KSAMC)/National Environment and Planning Agency (NEPA)/Natural Resources and Conservation Authority (NRCA) for “lack of consultation by authority before decision made.” This property is less than half-acre, and unless there are compelling reasons, no multifamily developments should have been permitted. Environmental permit was issued after construction started. Importantly, the court outlined although KSAMC halted construction, permits and licences were not revoked – neither its KSAMC building, nor its NRCA environmental. Additionally, varying inconsistencies existed between application and design configurations to the various agencies of bedrooms, bathrooms and building heights. Two and a half years plus five court days later, work continued to completion unsupported by any legal authorisation.

Proprietors objected to 10 Roseberry Drive, Kingston 8, St Andrew, application to modify restrictive covenant items. Notwithstanding, NEPA granted requisite environmental permits and licences 2019 September, and the KSAMC issued building approval October 2019. The court ruled that the KSAMC is not to grant approvals on an ad hoc basis, stating that the May 2017 NEPA Provisional Development Order (PDO) allows multifamily development in this area on properties of half-acre and over. Yet, this property contains 0.421 acres (1705.281 square metres) granted approval without reference to any compelling reason. The court noted that construction started January 2020, ostensibly unsupervised by the KSAMC. The building has discrepancies with excessive number of rooms submitted to the entities varying from that initially permitted, and ignoring boundary setback guidelines, also with other breaches of the general conditions in the building approval process.

Proprietors challenged development at 29 Dillsbury Avenue, Kingston 6, St Andrew, over the KSAMC and NRCA acting ‘ultra vires’ regarding issuance of permits. Neither the ‘Notice of Intention to Submit Plans’ within the 30 days, nor the ‘Notice to Object’ was facilitated. Instead, they received notices after the plan was already approved and construction had already started. The court noted that based on the evidence, the planning authority does not have a structured system of enforcement, made clear because no proper checks were done by them to ensure the actual development matched what was submitted in the plans. There was much discussion over the height of the basement whether it extended into that of a habitable floor. If so, then it should be calculated as an additional floor. All developments require regulatory setbacks in accordance with the number of floors with prescribed distances from roadways and boundary lines. Setbacks are also in breach in this development. Critically, the site is sloping and the submitted plans omitted cross sections of these slopes that would impact the approval process for allowable developments. There are also problems of water seepage, commonplace in all hillside areas. Hence the court recognised that KSAMC should have been alert to the potential problems.

RECURRING ISSUES

In spite of these court rulings, citizens associations are still reporting the continuance of start-up of new developments in their neighbourhoods, with these same recurring issues. Additionally, those developments issued with cessation orders continue regardless with their building activities.

So, why is the court system continuing to be inundated with more of the same cases? Why are citizens being forced to endure the expense and inconvenience of lengthy litigations? Why are developments across the KMA lacking public posting of permits and licences for development consultations with citizens?

Justice Judith Pusey ruled January 21, 2020 on Upper Montrose, “there is no evidence of chronic shortage of houses in the area … objectors would be stuck with the wanton and unlawful behaviour … and the permanent fundamental alteration of their community for self-interest.”

In the Birdsucker judgment of December 17, 2020, Justice Georgiana Fraser stated, “It is by no means inconceivable, that Parliament did not intend that wrongdoers and lawbreakers should benefit from their unlawful ventures and actions.”

Justice Natalie Hart-Hinds outlined December 20, 2021 over Roseberry, “If the applicant applied for building demolition, the KSAMC’s powers include ordering the demolition of the building pursuant to Section 45 of the 2018 Building Act”; further, that the responsible entities “have been dilatory in their mandate to enforce local planning laws and regulations and to promote sustainable development.”

On February 18, 2022, a ruling by Justice Sonia Bertram Linton regarding Dillsbury stated, “The evidence before this Court indicates that the KSAMC only partially understood the law as it relates to their authority to grant building permission,” continuing that “this practice of putting the cart before the horse [commencing construction prior to fulfilling conditions of approval] needs to be discontinued so that the planning authority can effectively fulfil their duties under the building regulations.”

During the second week of January 2022, the media reported along with video scenes the KSAMC demolishing what they termed ‘illegal’ stalls and shops, including concrete structures. The poor in the downtown Kingston area cried out, bitterly bemoaning the loss of their investments and asking, how were they going to make a living?

The question, therefore, has been resonating – When will the KSAMC commence demolition of those multifamily residential developments adjudged illegal and unlawful in the uptown Kingston area? The biblical laws written in Leviticus 19:15 read “…Do not pervert justice. Do not show favouritism to either the poor or the great. Judge on the basis of what is right…”.

- Patricia Green, PhD, is a registered architect, and former head of the Caribbean School of Architecture in the Faculty of the Built Environment at University of Technology, Jamaica. Send feedback to patgreen2008@gmail.com.