The legal hammering of the Kingston and St Andrew Municipal Corporation (KSAMC) and the Natural Resources Conservation Authority (NRCA) continues, with another judge now reprimanding state regulators for breaking the law by approving a housing estate in St Andrew .
In overturning permits issued by the KSAMC and NRCA for Plexus Limited to build a complex at 29 Dillsbury Avenue, Judge Sonia Bertram Linton criticized authorities for ignoring the laws of the land.
“The planning authority does not have a structured enforcement system. This is evidenced by the fact that no proper checks were carried out by them to ensure that the actual development…corresponded to what was submitted in the plans,” the Supreme Court Justice said in a 35-page decision released Friday.
“This practice of putting the cart before the horse must be abandoned, so that the planning authority can effectively fulfill its obligations under the building regulations.”
It is the latest scathing rebuke from the judiciary and follows one last December in which another Supreme Court justice raised questions about possible negligence or corruption at the KSAMC and the National Agency. of Environment and Planning (NEPA), the administrator of the NRCA.
Regarding the Dillsbury case, a judge had halted construction in October 2019 until the case was decided in a judicial review which examined whether the process used by authorities to grant approvals was fair and legal. .
KSAMC chief executive Robert Hill said the company would advise on next steps.
In August 2019, four residents petitioned the Supreme Court for a judicial review of KSAMC and NRCA decisions allowing Raymond and Wendy McMaster to build five townhouses and a four-story building consisting of six apartments at the Dillsbury Complex.
Development is now complete.
The NRCA approved its permit in September 2018, while KSAMC construction approval was granted in November of the same year.
But residents – Hope Wint, Samantha Gayle, Richard Coe and Janet Wright – say they received notice of the developer’s intention to submit plans for construction after the documents had already been provided to KSAMC.
Under the Kingston and St Andrew Buildings (Notice and Objections) By-law, the notice would trigger a 30-day period during which residents could make formal objections.
Judge Bertram Linton said that based on the regulations, residents have a legal right to have their objections considered by the KSAMC before making its decision.
She said that would have been enough even if the municipal corporation had not held a hearing but only considered the complaints.
BREACH OF REGULATIONS
“The failure of the KSAMC to consider the plaintiffs’ objections or convene a hearing was unfair in that it violated their legitimate expectations, the principles of natural justice and, ultimately, constituted a breach of [the regulations]said the judge, before criticizing the way some senior KSAMC officials did their jobs.
In one case, Judge Bertram Linton noted that Shawn Martin, a senior planning officer, had admitted that the developers had not submitted drawings showing the average slope of the property.
The law authorizes the KSAMC to request information.
Martin said the KSAMC conducted its own assessment, after which clearance was given. But the basis for this decision has been questioned.
“When asked about the document containing this assessment, he (Martin) said that there was no document reflecting the assessment. He also said there were differences in the plans submitted and what was happening in development,” the judgment reads.
On this basis, the judge concluded that the KSAMC “did not have due regard” to the Town and Country Planning Act and breached the Town and Country Planning (Kingston) Development Ordinance.
In another questionable action, the court noted that the plans submitted as evidence in the court filing were different from those used by the KSAMC, and further that Xavier Chevannes, the chief engineer, admitted that the KSAMC had not no document to determine the average rating of the complex.
Chevannes also told the court that he had not checked the depth of the apartment to see if it complied with the approval and that there were no documents reflecting this inspection which he said had was carried out by officials identified in the judgment as Assistant Building Inspector Jeremy. Lawrence and a Mr Clarke.
The judge concluded that the KSAMCs “were illegal and irrational”.
“The KSAMC did not carry out the necessary checks or request the relevant information necessary to ensure that the plans complied with the regulations,” said Bertram Linton.
The case also highlighted a difficulty that many other residents have had with authorities – obtaining copies of drawings submitted by developers who intend to construct buildings in their neighborhood.
The judge then pointed to some “strange” actions by the authorities.
“The court finds it strange that the KSAMC, which is responsible for setting the prescribed distance from the roadway, knows that in this case it should have been at least 5 feet away and did not follow its own rules with the development “, the judgment mentioned.
In another case, the court questioned the NRCA’s own understanding of its authority.
NRCA official Gregory Bennett told the court that the basement was below ground level and should not be considered a floor, although residents were able to show that the top of the basement was at 10 feet off the ground.
Based on this, the NRCA said it was rational to issue the permit since it was based on the submitted drawings, which it said met the guidelines.
But the judge dismissed the view, noting that the NRCA appeared to say that once it approved the plans it had no enforcement and oversight powers to ensure the permits were followed.
“Presumably, also, the permit, once granted, cannot be revoked if it turns out that the promised membership and the basis for approval have not been met,” Bertram Linton said, appearing to mock. of the NRCA, which it says did not discharge. his homeworks.
She added: “It is certainly a strange thing that the authority has not been able to check the details after construction and does not seem inclined to do so either, in order to apply its own guidelines. approval.”
Judge Bertram Linton also said it was ‘quite surprising’ that Shawn Martin ‘could not say whether the authority had at all times satisfied itself that what was in the approval was what was on the ground’ . But was able to identify only from the documents in court that there was a difference”.
The judge asserted that the NRCA has the power to ensure that its guidelines are followed and that “it is wrong to believe that the decision to grant the permit before construction is the end of their responsibility”.
And the judge calculated that the subdivision contained at least 40 habitable rooms on land whose area (0.68 arpent), under the 2017 provisional development decree, allows 32 habitable rooms.
The judge accepted the residents’ assertion that a unit described as a studio and measuring between 400 and 500 square feet should, for density purposes, be considered a one-bedroom or two-room livable unit.
A bedroom between 500 and 600 square feet should be rated for density purposes as a two-bedroom or three-bedroom apartment. While units over 600 square feet should be assessed as a three-bedroom or four-bedroom apartment.
Residents were represented by Gavin Goffe of Myers, Fletcher & Gordon; Rose Bennett Cooper and Sidia Smith for the KSAMC and Althea Jarrett and Kristina Whyte of the Attorney General’s office for the NRCA.
Arguments were heard in May 2021.
“JUSTICE DELAYED IS NOT REAL JUSTICE”
Gayle, one of the residents who filed the lawsuit, said she was pleased with the outcome of the case “despite the continuing discomforts and inconveniences of the now completed construction and the fact that delayed justice will not is not true justice”.
She added: ‘I am grateful that the court has heard our case, highlighting the failures of the authorities to operate fairly and legally – and that I hope our community and others will now benefit from the fact that the authorities will be called upon to report on their roles and responsibilities.
The KSAMC announced a series of reform measures following last December’s ruling in which a judge visited and found a development at 10 Roseberry Drive in violation of its permits after Cliff Rochester-Butler-led Belgravia Development built 32 rooms on an approved property for just 12.
The KSAMC has since imposed a shutdown order on the apartment complex until the issues are corrected.
Martin, who testified in the Dillsbury case, and another KSAMC official, Calvet Sutherland, were sent home in December with full pay while investigations continued into building and planning approvals granted by KSAMC.