Crime, Fear and the Jamaican Private Security Firm

WARNING: Some of the images in the above are graphic and hence discretion is advised

Several Jamaican residential communities have now turned to the private security industry to provide auxiliary security support in the face on a protracted crime surge and the island being bestowed with the moniker “Murder Capital of the World”- consequent on having the highest per capita murder rate. In this regard, the communities of Seymour Lands, Trafalgar Park and the residential sections of New Kingston are not exceptions, with an estimated 50 – 60 percent of all homes being involved in some formal arrangement with one of the private security firms or an informal arrangement with individuals to provide services. However, perversely, the continued success of the private security industry in these communities and the wider Jamaican society is predicated on the continued instability of the society. For its part, the Jamaica Constabulary Force (JCF) is perceived as being understaffed and under-funded and in need of support in an effort to meet the challenges of today’s crime-ridden society.

In fact, householders are paying substantial sums of money not only to have private guards patrol their communities, gated or otherwise, but they have also invested heavily in panic buttons and other alarm systems. Further some gated communities who are unable to afford the private security fees have decided to engage the services of “gatemen” who are paid at the level of security guards and which provide de facto security services where necessary. There are also communities who have or are seeking to implement neighbourhood watches – where groups of citizens patrol their respective communities and develop their own early alert mechanism in the event any potential criminal activity is determined.

However it should be noted that the communities of Seymour Lands, Trafalgar Park and the residential sections of New Kingston are served by the Matildas Corner and Half Way Tree Police Stations, with additional support being available through the New Kingston Police Post. Nevertheless, the citizenry perceives that they require the private security services. This is guided by the fact that the police have been unable to control the incidents of house breaking and larceny, armed robbery, petty thefts, drug pushing, street prostitution and the proliferation of sensuous massage parlours which obtain in the communities. Further, the response times from the private security entities are considerably faster, routinely ranging from 3 to 5 minutes whereas in the case of the Police, the responses can range from as low as 3 minutes to hours or non-arrival. This is not aided by the inordinate delays in the answering of the 119 emergency numbers on occasion. Nevertheless, presuming the accuracy of recent claims that the major crimes are trending down, it remains unclear whether there has been a concomitant increase in arrests and indeed if the improved statistics can be attributed to more efficient policing or to the involvement of the private security entities. Indeed, the impact of the JCF is further undermined by their inability / unwillingness to enforce the Noise Abatement Act (1997), which leaves many residential communities feeling vulnerable and turning to private services.

Whereas it is clear that auxiliary services, such as the private security firms can never replace the Jamaica Constabulary Force, there is an obvious need for increased personnel. As at March 2006, there were some 12, 891 security guards relative to 8, 100 members of the police force (out of an establishment figure of 8,500). There is also the obvious but chronic shortage of equipment facing the JCF relative to the private security industry. As one homeowner laments “When we were growing up, the police would routinely conduct neighbourhood patrols and would on occasion stop and check on individual dwellings (particularly the elderly) to see if they had any particular concerns about their security. Those days are long gone but then in a country where an $80 million price tag for a motor car is deemed “reasonable” can we be surprised?”

See Also
The Case Against Mixed-Use Developments Part 1

NEPA Transferred: Golding’s Super-Ministry Comes Of Age

Come April 1, 2008, the National Environment and Planning Agency, NEPA, will no longer be classified under the Ministry of Health and Environment but under the Office of the Prime Minister. That’s the stated intent of the Government of Jamaica as outlined in the Estimates of Expenditure for the year ending 31st March 2009 and tabled in the House of Representatives by Finance Minister Audley Shaw on Thursday, March 27, 2008. Indeed, the document explicitly states that functions under (Expenditure) Head 4200 related to the Environment, have been transferred to the Office of the Prime Minister effective April 1, 2008. Further within the document there is a repeated reference to the Ministry of Health as “formerly Ministry of Health and Environment”. However Minister of Health, Rudyard Spencer is seemingly unaware of any such development, stating on the TVJ 7 pm newscast on Friday that "I don't know that to be the case, it might have been a typo, Environment is still there (under the Health portfolio), yes".

The 2008/2009 estimates also reveal that the allocations for the Office of the Prime Minister’s (OPM's) budget has been fashioned to include projects being implemented by (NEPA). Similarly the Land Portfolio has apparently been stripped from the Ministry of Agriculture and transferred to OPM. This would affect most notably the reporting relationship of the National Land Agency (NLA).

This is however consistent with the utterances of Prime Minister Golding as he continues to seek to create a more investor friendly climate and really dovetails into the Planning and Development portfolio which he had also assumed from the inception of his regime. Further, it is not expected that this is the end of the reformation process for NEPA, as the Prime Minister earlier this year had stated that it was his intent to establish a separate Environmental agency. NEPA as currently constituted, is basically an amalgamation of the Natural Resources and Conservation Authority (NRCA) and the Town and Country Planning Department, both of which are already governed by separate acts of Parliament, making any plans to revert to its initial state relatively easy.

Nevertheless, there are concerns that Prime Minister Golding may be taking on too many line areas of responsibility and therefore hindering his ability to focus on overall policy issues. Already the Prime Minister has assumed responsibility for Defence, Planning and Development, Local Government and now Lands and the Environment. Interestingly, under the previous regime, that portfolio mix was handled by up to five (5) separate Cabinet rank Ministers including the Prime Minister. For his part PM Golding has three Ministers of State (Shahine Robinson, Robert Montague and Daryl Vaz) and one Cabinet rank Minister without Portfolio assigned to OPM (James Robertson).

Animal Farm: The New Jamaican Constitution?

The Orwellian maxim that “all men are created equal but some are created more equal than others” seems to have become the watchwords of the National Works Agency and the Police force in Jamaica. This, as the authorities have unilaterally decided to route the road march from the Carnival celebrations slated for Sunday, March 30, 2008, through the residential community of Seymour Lands. This has proven to be particularly irksome to the residents living on or in close proximity to Upper Musgrave Avenue, Argyle Road and Musgrave Avenue as it was mutually agreed from 2006 with the Jamaica Constabulary Force that the celebrants would continue their activities along the Lady Musgrave Road (main road) which would lengthen their journey by only a few metres and avoid disturbing the residential areas. In fact, the agreed route of 2006 was followed in 2007 with nary a peep from residents.

The decision of the authorities to allow for this particular march route now places the revelers and the attendant mind numbing sounds, in very close proximity to two homes for the aged, a number of multi-storey apartment and townhouse complexes as well as several single family dwellings. Aside from this being a flagrant breach of the Noise Abatement Act, the fact that it has actually received state approval with absolutely no reference to the citizenry remains baffling and smacks of autocracy. This is likely to be compounded by hundreds of revelers and vehicles traversing Argyle Road, which is already in an advanced state of disrepair, where the surface is largely non-existent and the road has already collapsed on a few occasions. Further the attendant and totally predictable dust nuisance from that source should surely have been a cause for concern. Indeed it is instructive note that Hopefield Avenue, Upper Musgrave Avenue, Argyle Road and Musgrave Avenue have all collapsed several times in the recent past, given poor rehabilitation works, after the laying of sewer mains and are likely to undergo their greatest test on Sunday. This has already led to a public apology from the National Water Commission and raises a question about the degree of effective communication between the State agencies.

However, this issue really highlights the difficulties that residents of the Seymour Lands (Golden Triangle), Trafalgar Park and the residential sections of New Kingston are routinely faced with. Lack of effective consultation, arbitrary governance and myopic urban planning can safely characterize the experiences of the listed communities and rubbishes the claims regarding the so-called processes of consultation. Further, cognizance must be taken of the fact, that these are the same areas that the Government of Jamaica is seemingly working assiduously to commercialize and convert into urban ghettos and it’s the private developers who have been rescuing the communities from the clutches of opportunistic governance.

Update

Subsequent to the publication of this article, there was a last-minute change of route to bypass the residential communities in Seymour Lands, confining the road march activities to the main roads as obtained in previous years.

See Also:

Know the Law: Noisy Nights No More

Jamaica: A Sellers Market for Now

The Jamaican housing market continues to operate in a dysfunctional manner, as the associated prices remain disconnected from market fundamentals. Indeed, housing prices are at levels which surpasses any historically identifiable relationship to rents or salaries. Annual rents range between 8.5 and 11.5 percent of purchase prices in the upper end of the market. With mortgage rates hovering in the 14 percent range at the lower end of the yield curve, it costs approximately 65 percent more to borrow money to purchase a house, than it does to rent the same thing. At the middle and lower end of the Jamaican real estate market, average rents range between 2.8 and 5 percent of the purchase price, so in this category it costs more than twice as much to borrow money to buy a house than it does to rent the same thing. Further, total owner costs including taxes, maintenance and insurance are estimated at approximately 5 – 9 percent, which at the middle and lower end of the market, is almost twice the cost of renting. Similarly, salaries are largely unable to cover mortgages, which are primarily funded at the upper end of the market by the proceeds of a second sale and remittance flows. Indeed, it is instructive to note that the Building Societies in Jamaica use a benchmark formula which dictates that mortgage payments must not exceed 30 percent of gross income as a measure of affordability, but in reality most purchases are far in excess of that.

The picture has improved somewhat with a 60 percent increase in rental rates in Jamaica in 2007 relative to 2006 and the 67 percent increase in sale prices experienced between 2005 and 2007. Indeed, for example, in the Golden Triangle sale prices of J$40m for a 3-bedroom townhouse are not uncommon, nor is a price tag of US$1.2m per acre of land, with rents routinely averaging between US$2,000 – US$4,000 per month. This is replicated in many other residential communities in Jamaica particularly in Kingston 6 and 8, but tends to cater only to the upper end of the market.

However, the fact that most sellers require a 15 to 20 percent deposit and closing costs (inclusive of stamp duty and legal fees) are estimated to be 10 – 13 percent of the purchase price, has excluded a substantial number of potential purchasers. Further, the cost of home insurance is proving to be a challenge in the Jamaican market, particularly at the upper end where the extraordinarily high values lead to insurance syndication (as no single carrier is willing to carry the entire risk). Indeed, particularly in the lower and middle income groupings, more persons are opting for own-insurance which has its own inherent challenges. This is of course compounded by the annual re-valuation exercise, that is usually required under powers of a mortgage and which valuation is usually priced at 0.5 percent of the valuation price.

However, Jamaica is not the worst in the Caribbean Region in terms of residential pricing and in fact is ranked near the bottom, in terms of cost per square metre, relative to its neighbours. Jamaica’s average cost per square metre for residential housing according to Global Property Guide Research is determined to be US$1,678 only surpassing Aruba and Dominica. At the top of the regional scale is Bermuda which is calculated at US$7,861, followed by Barbados at US$6,728 per square metre.

While it remains true that over-optimism among investors has pushed valuations to levels that are inconsistent with the outlook for real estate sales and rents in Jamaica, these values are likely to increase further in the short term after which a market correction is expected. In any event, though a market correction is anticipated, as long as developments remain concentrated in a few areas, creating artificially high demand, prices will increase but so will the degree of frustration among the majority of persons who will recognize that their dreams of owning a home are becoming more elusive with every passing day. In the interim, though, the Jamaica’s real estate market will remain a sellers dream.

Know the Law: The Noise Abatement Act

“Under the Jamaican Constitution, persons are entitled to enjoy the quietude of their homes, without molestation”. This oft repeated comment, is deemed in most residential communities, as yet another hollow platitiude echoing in the halls of injustice, as persons continue to breach the Noise Abatement Act (1997) also colloquially referred to as the “Night Noises Act”, with impunity. However in most cases, the affected parties are not familiar with the actual tenets of the law and rely on anectdotal information, which would in large part. be suggestive of a notion that persons are entitled to disturb persons particularly on weekends, up until 2am. Not so! Therefore in furtherance of the series “Know the Law”, the Trafalgar Council has sought to reproduce the law as it has been printed, so that persons will be able to familiarize themselves with the actual provisions and demand effective policing of its tenets.

Read this doc on Scribd: The Noise Abatement Act

See Also
Know the Law: Noisy Nights No More
Know the Law: Speak your Truth with Conviction

Jamaican Real Estate Values Soar: Correction Inevitable

There has been growing controversy, concerning the real estate market in Jamaica and whether or not it is due for a correction. A market correction is sometimes defined as a temporary decrease during a bull (positive) market and in terms of real estate can be be manifested in a decline of 10% to as much 50% in value over a short period of time. Economists and financial analysts in Jamaica conclude that a correction is inevitable, whereas real estate market professionals continue to argue that this not likely, given the fact that demand continues to outstrip supply and will continue to do so for the foreseeable future. In other words, the real estate experts expect the current housing bubble to continue at least over the short to medium term. A housing bubble is characterized by rapid increases in the valuations of real property until unsustainable levels are reached relative to incomes, price-to-rent ratios, and other economic indicators of affordability. This in turn is followed by a market correction, in which decreases in home prices can result in many owners holding negative equity (a mortgage debt higher than the value of the property). This is of course not a new scenario as this obtained in the Jamaican market place during the financial meltdown of the 1990’s, when large volumes of real estate, previously held by varying Financial Institutions, Corporate Enterprises and individuals were suddenly offered on the market, driving values considerably downwards.

However the real problem is that as a housing boom continues the investment decisions become less and less sound. In the early years of a boom it is different. The developer would be duty bound to ensure that the requisite feasibility analysis and due diligence exercises were completed before anyone would trust them with their money, however, with several projects now being pre-financed by willing buyers even before construction has commenced, has led to a degree of lassitude creeping into the market with potentially deleterious effects. This leads markets that are already over-optimistic about investment opportunities into making serious errors of exuberance because the full facts are not known.

Nevertheless, several useful and significant real estate projects are currently underway in Jamaica. However, it is also true that over-optimism among investors has pushed valuations to levels that are inconsistent with the outlook for real estate sales and rents. Indeed, in some sections of the Jamaican market, real estate values have increased in excess of 275 percent since 2005 with values moving from $8,000 - $9,000 per square foot in 2005 to as high as $22,000 per square foot currently. This has no doubt contributed to the $50 billion value attained by the local real estate market in 2007. However cognizance must be taken of the fact that this housing bubble is largely focused in the upper middle and upper income socioeconomic groups, but not to the same degree in the middle and lower income groupings. Indeed with the National Housing Trust and the principal Building Societies increasing their lending rates in recent times this is likely to drive costs even higher. This will be further compounded by expected increases in general insurance premiums.

Indeed, whereas there is reportedly high demand in the $3 million to $15 million market, there is little supply. This is compounded by the continued creeping commercialization in the established residential sections of urban communities, while ceding large parts of the designated commercial zones to criminal elements. Indeed in the Corporate Area (Kingston and St Andrew), it is estimated that 20 to 25 percent of the lands have been abandoned because of a legacy of criminal activity whereas another 25 percent is in urgent need of regeneration. Hence, it can be argued that pricing in the Jamaican housing market is being determined by market distortions rather than the true interaction of the forces of demand and supply and therefore such pricing is not sustainable. Further with average real incomes declining in Jamaica, the current real estate boom is not sustainable.

This raises the real prospect of the real estate market being faced at least over the medium term with issues of ballooning inventories, falling prices, and sharply reduced sales volumes. However, given the fact that the Jamaican real estate market is not homogeneous, the degree of fallout anticipated will vary with market segments. In fact the most significant fallout in anticipated in the high end of the market, which through the application of higher density ratios, is expected to reach saturation point. As vehicles for speculation, their utility is likely to wane over the medium term, given the exorbitant cost structures that prevail and therefore render the properties as being too expensive for the rental market. Further with the recession in the US economy, there will be the attendant fallout in remittance flows among other adverse developments and hence there is likely to be a negative impact to varying degrees on all segments of the Jamaican real estate market. In large part, the current real estate pricing structure largely precludes the lower middle income and lower income groups and with the increases in mortgage rates, the issue of affordability is exacerbated. However, since the Government of Jamaica has committed itself to the regeneration of Downtown Kingston as well as other urban centres over the medium term, if successful, this will likely lead to a dampening in demand for commercial property in residential areas and lead to a reduction in price.

In any event, with the price mechanism in the local real estate market so hopelessly distorted it is difficult to conceive of a scenario where there will not be a substantial market correction. Whereas it is readily acknowledged that land prices over time will generally trend upwards, market fundamentals do not support the pricing structure which currently obtains in the Jamaican real estate market.

See Also

An Island Paradise...Is Anyone Home?

The Case Against Mixed Use Developments in Jamaica... Part 1

Jamaican Govt. Backpedals on 90-Day Approval?

“Only projects that need no environmental impact assessment (EIA) will be assessed and approved in 90 days or less”. That’s the word emanating from the National Environment and Planning Agency (NEPA), as it broke its silence publicly on the controversial issue of a 90-day approval process mooted by Prime Minister Bruce Golding. Speaking at a Gleaner’s Editors Forum on Tuesday, March 18, 2008, NEPA’s Public Education Manager Natalie Fearon, reportedly advised that: "What we have done is create a two-tier system to see what we can get done, in 30 days and under, and what else can be done using another channel. So I think it is a matter of working smarter and being realistic about what can be done in a specific time”.

This new Government position was also echoed on Friday March 14, 2008 by Minister of Housing and Water, Dr Horace Chang, who advised that the Government of Jamaica was committed to reducing the timeline for residential approvals to no more than 90 days. Speaking at the official launch of the Meadows of Irwin Housing Development in Montego Bay, Dr Chang advised "We want to make the planning approval process, especially for residential areas, within 90 days,"

This is in stark contrast to the stated position of Prime Minister Golding, who in response to complaints about long delays in the approval of development projects, sought to impose a 90 day timeline for the regulatory agencies to make a final determination. Indeed, Mr Golding at that time further advised that if potential developers were not in receipt of a response from the regulatory agencies within the 90-day deadline, they were to treat the applications as being approved and commence development. However this newly softened position comes on the heels of widespread criticism by the Environmental Lobby, various Community Based Organizations (CBO’s) and the more muted sounds of disagreement from the local authorities on the inherent dangers in the accelerating of the general approval process to 90 days or less. This, as there have been widespread concerns about the fate of Environmental Impact Assessments (EIA’s), required particularly for large projects, in the new dispensation. It is generally accepted globally, that EIA's usually take 6 months to 2 years to complete and are particularly germane in a process of determining the potential threats to the environment of development projects.

However, though deemed generally by its detractors to be a step in the right direction, the position being articulated by Dr Chang and echoed by NEPA, does not address the largely discretionary powers of NEPA to determine which projects require an EIA. Further, there is no stipulation in law which requires that all projects require an EIA, nor are there any clear guidelines regarding the types of projects requiring an EIA Also, there is still no discernible action geared to improve the degree of public consultation as it relates to development projects, as the Golding regime while seeking inputs from architects and urban planners, have noticeably excluded any involvement of Community Based Organizations in terms of the long term planning for the Kingston. This has been exacerbated in recent times by a unilateral decision making process which has led to alterations of density ratios and setback distances particularly in Kingston and St Andrew to ridiculous levels, while ignoring the widespread objections and concerns of the citizenry.

See Also

Quick Approvals...Compromised Quality: Jamaica's Development at Risk

Construction Booms in Jamaica: Are the Building's Safe?

The Road to Chaos is Usually Paved with Good Intentions

Jamaican Prime Minister Bruce Golding, is insistent in his desire to restrict the building approval process to 90-days and by so doing, revolutionize the development process in the island. Indeed according to Mr Golding, he is shifting the impetus in the development approval process from the developer to the regulators. In other words he is seeking to implement change management, which is basically the application of a structured approach to the process of change in individuals, organizations and societies that enables the transition from a current state to a desired future state. Successful change management is determined by far more than changes in processes, technology or even public policy, as it is primarily driven by the active engagement and participation of the people.

However, the approach adopted so far by GOJ, has excluded the populace and has sought to rely only on the technocrats and the public sector bureacracy to make decisions which can fundamentally and permanently alter the character of communities and potentially compromise individuals' investments in real estate (whether used as their primary residence or for speculative purposes). Indeed, several of the policy alterations made so far are so controversial, that the intervention of the courts will be required, to facilitate a process of judicial review.

For example, the altering of the setback distances to five (5) feet per floor from the property’s boundaries, despite overwhelming and clear objections from the citizenry. Similarly, increasing density ratios from 30 habitable rooms per acre to 55 habitabitale rooms per acre is yet another example to name a few. Of course the failure of the state regulatory agencies to advise and consult affected parties, in the face of community altering investments, is perhaps the principal factor which is likely to derail the notion of change, that the Golding regime is seeking to effect in the development process.

To ensure a successful process of change, it is necessary to use influence and strategic thinking, in order to create vision and identify those crucial, early steps towards it. Indeed, it is apparent that the Golding regime has subscribed to Gleicher’s formula for change (which is basically D x V x F > R). In the current context, this illustrates that the combination of dissatisfaction with the current scenario(D), vision for the future (V) and the possibility of immediate, tactical action (F) must be stronger (greater) than the resistance (R) within the country, in order for meaningful changes to occur. However the model notes that if any of the components are missing or their prescribed values low, they will not be able to overcome the resistance and the process of change will be unsuccessful. In this regard, the Golding regime is apparently oblivious to its error in seeking to bolster only one side of the equation by the inclusion of the architects and urban planners among other technocrats who favour their proposed strategy and miscalculating the impact of widespread public disaffection. If there is no provision for public consultation, the strategy will ultimately fail as the Resistance will be so high, that the policy thrust would be stymied.

Obviously, there are simple solutions to this scenario. Firstly. the citizenry must be consulted at each stage of the process and their input accepted as an integral part of the decision-making process. Secondly, the Government must communicate its vision in a coherent and sustainable manner (e.g. the current failure to explain the role of EIA’s in the proposed 90-day approval process is a case in point). Thirdly, eschew any thoughts of populist political pandering as it will only serve to increase resistance (e.g. announcing that persons who live on three-fourths of an acre are living in luxury). Fourthly, every effort must be made to convince the citizenry that you have the relevant expertise to effect the process of change (e.g. a policy whereby each new construction will overlook and overshadow the neighbour’s property is an example of what not to do). Finally, every effort must be made to engender the trust of the citizenry (e.g. do not seek to engage the citizenry in the process and then ignore their inputs or operate contrary to prior agreements).

Changing the character of neighbourhoods, no matter how well intentioned will always be a source of conflict but if the process is managed well, optimal solutions can be determined, which will facilitate sustainable development. The process of change management is a people process and therefore has to be handled with due care. Failure to acknowledge the delicate balance that must be achieved, will only serve to invoke the old maxim “The Road to Chaos is Usually Paved with Good Intentions”

See Also
Papine, the new standard for Jamaica's Development?
Jamaica Must Remain Centred

Quick Approvals...Compromised Quality: Jamaica’s Development at Risk

There has been a longstanding debate within the fraternity of Economists, whereby political regimes in varying countries, have been routinely accused of trading off long term development for short term growth. This particular debate seems to have developed renewed impetus in Jamaica in recent times, as the country is confronted with a political regime anxious to effect a fundamental transformation of the economy, but equally so convinced of the suitability of its approach that it is seemingly tending towards a strategy that will eschew any real degree of public consultation. This as Prime Minister Bruce Golding has opined, that Jamaica cannot remain underdeveloped solely to preserve the environment.

This cast against the backdrop of PM Golding’s revelations, that for the period October 1 to November 23, 2007, the controversial National Environment and Planning Agency (NEPA), “completed the approvals for 78 percent of the applications received proving that efficiencies can be achieved”. Whereas this may seem to be congruent with the PM’s desire to limit the building approval process to a period not exceeding 90 days, it raises some troubling questions. Indeed, by Mr Golding’s own admission in Jamaica “very often there is no correlation between what is approved and what is built.”

In light of this and the Prime Minister’s strategy of developing a single piece of legislation that is applicable to all regulatory agencies in the process of development, is there any provision being made for the input of the citizen? Already Section 9(5) of the NRCA Act, says that the NRCA (a part of NEPA) “shall consult with any agency or department of Government exercising functions in connection with the environment” and “shall have regard to all material considerations including the nature of the enterprise, construction or development and the effect which it will or is likely to have on the environment generally, and in particular on any natural resource in the area concerned.” Where the NRCA is of the opinion that the development involves activities that have or likely to have an adverse effect on the environment it may ask for an environmental impact assessment (“EIA”) containing such information as may be prescribed. This has already been the source of tremendous disquiet as NEPA has seemingly interpreted the word “shall” to mean may and not must and therefore has assumed tremendous discretionary powers. For the new legislation to be worthwhile, it should clarify the position on public consultation in an unequivocal manner and encompass provisions for compulsory consultations with the citizenry.

Similarly there are questions about the utility of Environmental Impact Assessments (EIA’s) in the new dispensation. EIA’s globally are usually completed in a 6 months to 2-years and hence a 90-day time interval would suggest that this necessary stage in the process of development is to be abandoned or severely compromised. Indeed this has legal ramifications as determined in the case of Belize Alliance of Conservation Non-Governmental Organization v The Department of the Environment and Belize Electricity Company Ltd (2004) where it was held that:

a. an EIA is part of the information taken into account by the decision maker when deciding whether to grant permission to conduct any activity that might adversely affect the environment;
b. the EIA is not expected to resolve every issue raised and indeed it could not since by its very nature it does not purport to explore every single possibility and advance solutions;
c. it is wrong to look at the EIA as the last opportunity to exercise any control over any project to which the EIA is relevant;
d. An EIA is satisfactory if it is comprehensive in its treatment of the subject matter, objective in its approach and alerts the decision maker and members of the public of the effects of the proposed activity.

Hence, whereas the Government of Jamaica is seeking to provide leadership to a much needed investment thrust, efforts must be made to ensure that such investments or development projects must be sustainable over the medium to long term. This cannot be achieved by seeking to circumvent, proven safeguard mechanisms in the interest of short term growth nor by continuing to seek to effect a process of development with no reference to the citizenry.

No Correlation between what is approved and what is built - Jamaican PM

The Government of Jamaica says it’s reviewing the legislative framework governing the development approval process, following a commitment to streamline the process.

It's seeking to create a single legislation that is applicable to all agencies.

These include the Town and Country Planning Authority, Natural Resources Conservation Authority and the National Environment and Planning Agency (NEPA) and all parish councils.

Prime Minister Bruce Golding says the Attorney General and the Chief Parliamentary Counsel have been asked to review existing pieces of legislation and create a single legislative framework to which all the agencies could relate. He says a new building code, as well as regulations governing zoning, are some of the areas which the single legislation would have to address.

Mr. Golding says the government does not intend to use regulations to prevent development from happening, as the country could not remain underdeveloped solely to preserve the environment.

He says development must however be done in a sustainable way and in harmony with the environment.

The Prime Minister says the process would involve strengthening the enforcement regulations, as very often there is no correlation between what is approved and what is built.

In the meantime, Chairman of the Joint Advisory Board, Patrick Rousseau says NEPA would be establishing a database that will be accessible to the public, where they can track their application as it goes through the various procedures.

He says the agency would also be stepping up its inspection and enforcement activities, as low environmental standards are unacceptable.

Complaints about long delays in the granting of development orders, prompted Prime Minister Golding to announce a 90 day timeframe within which the regulatory agencies should respond to applications.


Reproduced with the kind permission of Nationwide News Network

Know the Law: Restrictive Covenants (Discharge or Modification)

In furtherance of the series "Know the Law" this installment focuses on the controversial Restrictive Covenants (Discharge and Modification) Act. For additional discussion click here - Editor

Read this doc on Scribd: Restrictive Covenants (Discharge and Modification)Act

.

Construction Booms in Jamaica: Are the Building’s Safe?

Jamaica is currently experiencing a construction boom, but does not have an up-to-date Building Code. The present legal code, which dates back to 1902, was updated in 1983 as a policy document and is therefore not enforceable. Furthermore, given the devastation which obtained in the 1907 earthquake, there is not an overwhelming degree of confidence being expressed in the current but unenforceable code. A Caribbean Uniform Building Code (CUBiC) developed in 1985, reportedly has yet to be made a legal document and also remains merely a guideline. .

The true import of this situation was recently highlighted by former ODPEM Director General Dr Barbara Carby, who warned that if Jamaica were to be affected by a major earthquake, there would be a “high probability of structurally unsafe homes and public buildings due to improper building practices and the lack of an enforced building code". Speaking at the annual ODPEM National Disaster Management Conference, held in Montego Bay, Dr Carby, who is now Director of Hazard Management in the Cayman Islands, pointed out that building without expert advice and the absence of an enforceable building code were key factors that would elevate the level of loss in Jamaica, in the event of a major earthquake.

This matter is of particular import to persons living in the Seymour Lands, Trafalgar Park and the residential sections of New Kingston as well as most urban centres across the island. This, as the housing stock in these areas was constructed from the 1950’s upwards and therefore such construction was guided by the unenforceable building code of 1902. Of particular interest is the fact that buildings in Jamaica, at least prior to Hurricane Gilbert in September 1988, were designed to withstand winds of 120mph which in light of recent experiences would suggest the need for an upgrade in construction standards, to withstand at least wind speeds of 160 mph. Similar considerations would be applicable to glass, which is an increasingly popular construction item used for windows and sliding doors.

Building codes, such as the International Building Code which governs the construction industry in the USA, are updated every three (3) years, but in the absence of this, Jamaican professionals are using at their discretion the codes with which they find favour. Indeed, Jamaican professionals are reportedly guided by the British Standard, the American Concrete Institute, the Structural Engineers Association of California, the American Society for Testing Material and the International Building Code (IBC), and CUBiC among others.

Industry experts note, that the International Building Code addresses the climatic and cultural norms as obtains in Jamaica, with regards to hurricanes, earthquakes and flooding and therefore is a good base platform to use to develop Jamaica’s National Building Code. Such a code they note also addresses the need for additional training and provides accreditation for Building Inspectors.

Whereas it is obvious that there is an urgent need for an updated National Building Code, it is apparent that there is also need for a massive retrofitting exercise, relating to the bulk of the housing stock in Jamaica. Whereas, the ability to effect such alterations as may be required, will be determined by an ability to pay, there is need for policy direction in this regard. As time is of the essence, the luxury of political posturing and engaging in long meaningless debates is not possible in this process and it’s therefore time for decisive leadership.

An Island Paradise.....Is Anyone Home?

Part of the modern day dynamic in Jamaica, is the current construction boom, particularly projects geared towards the upper end of the market. While it may be argued that this is a mere cyclical occurrence and indeed, that market segment will become saturated, the reality is that the price of land and housing in preferred sections of the Corporate Area of Kingston and St Andrew, are at record levels. While pragmatism would suggest that the market is due for a correction, the timeline for that occurrence is not easily predictable. However another part of the reality, is that it is estimated that approximately 20 percent of the lands in Kingston and St Andrew have been basically abandoned and should be targeted for redevelopment.

Indeed in the arguments being advanced regarding increasing densities in the more affluent residential neighbourhoods, it is an often overlooked reality, that aside from the lands which have been abandoned primarily in crime ridden communities, that high density developments do not have a track record of success in Jamaica. Indeed, the citizens have heard in recent times, from a plethora of experts, advising that Jamaica must now look to the failed strategy of mixed land use and to densities which obtain in Manhattan in New York. The only problem with that strategy is that Manhattan has a density of almost 77,000 persons per square mile versus Kingston which has a density of 3,727 persons per square mile. So by the logic now being advanced the entire population of Kingston could be packed in 8.5 sq. miles and in fact the entire Jamaican population could be accommodated in 33.8 sq miles. This is approximately 19.3 percent of the 174.9 sq miles that represents the land area of the capital city. In other words, it is being advocated that the densities be increased by a factor of approximately 25, but to accommodate who and facilitate what?

The Jamaican population is growing at a very slow rate, oftentimes below 1 percent per annum. There are no discernible plans for any “mega-investments” on a sustained basis that would require substantial additions to the Jamaican labour force, creating even a fraction of this so-called demand for housing, that the proposed densities would suggest. So what is the hysteria about increasing densities all about? There are a handful of well connected but unscrupulous business operators, who do not wish to operate their businesses in areas zoned for commercial activity, because of a fear of crime and of course the advantage of being nearer to their potential client base and hence seek to establish their businesses in the residential communities. With an accommodating state machinery, it therefore pits the residents against the commercial operators, while 20 percent of the capital city remains unused and perhaps another 30 percent operates in sub-optimal conditions, yearning for redevelopment and in some cases re-population.

With all its social problems Jamaica remains an island paradise with tremendous potential. There is no need to approach its development in a frenzied fashion and in so doing destroy the very fabric of the society. Indeed, when Jamaica is being told that Papine should be the new standard for development, there is an obvious and urgent need for rationality to be introduced in urban planning. The lights are on, but is anyone home?

KSAC Mayor Receives Support for Municipal Court

The following is a press statement which was issued by the Trafalgar Council on March 12, 2008

KSAC Mayor Senator Desmond McKenzie has received the backing of the Trafalgar Council on his call for the establishment of a Municipal Court to treat with breaches of the building codes. However, in lending their support to the Mayor’s call for the establishment of a Municipal Court, the Trafalgar Council is also concerned that work at a controversial building site on Donhead Avenue in Seymour Lands, where a fatality occurred earlier this week, had continued undetected by the Building Inspectors for approximately six weeks after the initial cease and desist order was allegedly issued on January 22, 2008.

The Council notes that this issue points to a flawed process of oversight, by the Local Authority and can only serve to undermine the effectiveness of the rules and principles, governing the building trade. Whereas, this may be reflective of inadequate capacity at the level of the local authority, the issues at hand are so grave that they must be addressed urgently, in an effort to optimize efficiency, as the current modus operand is untenable.

The Seymour Lands community in particular is in the midst of a construction boom and therefore knowledge of an effective monitoring mechanism within the KSAC and the requisite assurances of a willingness to act on breaches with dispatch are critical to our collective interests. Indeed, specific assurances are required, that all projects currently being undertaken in Seymour Lands, have KSAC approval and are not proceeding despite the issuance of stop orders. Indeed already there are projects in the community, which routinely obstructs traffic flows, stores and dumps construction material on the sidewalks and indeed illustrates a need for strict enforcement of construction regulations. Hence the establishment of a Municipal Court is deemed to be an important component in the establishment of an orderly approach to development.

Papine, the new standard for Jamaica's Development?

"Papine is a good example. You can shop there and kids can go to school there. But a lot of Kingston is not like that, so basically you have to get into your car to do everything," That’s the sentiment attributable Dr Norman Garrick, Associate Professor of Civil Engineering at the University of Connecticut as reported by the Daily Gleaner. Speaking at a recent seminar on the development and approval processes hosted by Jamaica Chamber of Commerce, Garrick reportedly advises that Kingston's traffic woes stem from poor development strategies that have failed to integrate commerce and residential activity, resulting in long travel hours from home to work.

However, the accuracy of those sentiments is questionable. This as most residential communities, in the city of Kingston at least up to the mid-1990’s were planned in relatively close proximity to commercial centres. The most obvious examples in St Andrew being Mona Heights, Hope Pastures, Harbour View, Seymour Lands, Trafalgar Park and the residential sections of New Kingston. In all cases cited above, major shopping centres were no more than five (5) minutes away and persons would walk to them. However, over time, particularly with State altered traffic flows and a substantial increase in criminal activity, persons are more reluctant to walk to the nearest shopping community. Further in its tacit acceptance of creeping commercialization, coupled with its attempts to introduce mixed land use planning, the Government of Jamaica has only succeeded in transforming formerly residential neighbourhoods into a “hodgepodge” of commercial activity, thereby forcing the relocation of the previous residents into other residential communities further away from the commercial centres. The matter is compounded further, as the increasing densities in some residential districts, create additional demand for educational institutions and hospitals among other services, but the over-concentration which obtains in the residential communities now, renders that physically impossible, as there is literally no room for these developments and hence persons need to commute for longer periods to access even those services.

However, Garrick reportedly is critical that Jamaica has been following the pattern of development of the US where commercial and residential land usage is separated. This is in stark contrast to what local architects and urban planners have been advising as they seek to promote mixed land use developments in Jamaica. In fact these local experts continue to cite Manhattan in New York as the benchmark for Jamaica’s future development, with a population density of 76,940 persons per square mile (Kingston’s current density is 3,727 persons per square mile), though the trends in the developed countries are clear, that the shift is away from these mixed use strategies.

Jamaica’s development must be founded on a factual basis and therefore the refusal of the planners, architects and politicians, to acknowledge that perhaps as much as 20 percent of the capital city has been abandoned because of criminal activity and is in dire need of redevelopment, means that the process will continue to be mired in controversy. The answer cannot reasonably be found by increasing the density in the residential areas by a factor of 25 because there is a paucity of political and social will to confront the real issues which obtain in the commercial zone of Downtown Kingston and leaves it grossly underutilized.

The Case Against Mixed Use Developments in Jamaica ....Part 2

Currently in Jamaica, it appears that opportunism and myopia has overtaken the urban planning community, with only suggestions about high density housing and mixed land use developments, being offered to treat with the housing crisis. However the arguments being advanced are fraught with inconsistencies, flawed information flows and in most cases are incomplete at best.

In Part 1, the impact of mixed use developments on real estate pricing and effective demand was discussed, coupled with the difficulties involving a crumbling infrastructure in the face of a lopsided planning strategy. However the issue of the infrastructure requirements in the face of higher population densities and mixed land-use developments bears repetition, as the challenges are significant.

The matter of the inadequacy of water supplies is particularly daunting as there are no discernible plans in the immediate future to increase supplies to those areas already being targeted for high density accommodations. Further, if the problems already exist in the residential communities such as Seymour Lands, Trafalgar Park and the residential sections of New Kingston, they are likely to grow exponentially with the onset of commercial demand, which would necessarily come with mixed use developments. Also with this strategy of urban concentration that is being advocated, what of the provisions for additional schools of all types, hospitals, fire services, police stations among other requirements and more importantly where are they likely to be housed?

Further, this new planning paradigm in Jamaica of mixed land use, is also founded on a premise of increased “development pressure” from the commercial entities. However, in truth, what it reflects is the willingness of at least some of the state regulatory agencies, to facilitate the indolent actions of a favoured few, with no regard to other issues which also guide the process of urban planning. Indeed, the most recent argument is that there is a need to increase the density of Kingston and St Andrew, with examples of what obtains in New York City being heralded as the guidepost to development. However, in looking at the facts what are the densities that obtain in some of the main cities in the developed countries? New York City has a density of 27,203/ sq. mile; London – 12,331/ sq. mile and Kingston - 3,727 /sq. mile. However, the community of East Hampton in New York City which has been dubbed, “the playground of the rich” has a population density of 280.3/ sq. mile. In other words, within the same examples that are being offered to justify and add a sense of legitimacy to the arguments being promoted are examples of exclusive residential use.

Further at Jamaica’s stage of development there is no need to promote this level of urban concentration and to be seeking to destroy the character of traditional residential neighbourhoods. All this as only a polite banter can be heard of rehabilitating, the traditional commercial zone of Downtown Kingston. Also what of the notion of “inner-city redevelopment”? This as it is apparent that the notion of higher density living is now focused on the more affluent neighbourhoods in Kingston 5, 6, 8 and 10 whereas in the inner-cities you have the twin difficulties of both over-development (with concentrated spontaneous settlements) and numerous abandoned houses and lots, as the owners are driven from the communities by fear of criminal activity.

However, there are some oft expressed concerns about this notion of mixed land use within traditional residential communities globally, which are just as applicable in Jamaica:

1. It would introduce flows of pedestrians and traffic within the traditional business hours of 8 am and 5 pm, excepting where the nature of the business approved, namely nightclubs attract clientele particularly during the evenings and nights;
2. It would introduce a concentration of traffic into the immediate vicinity of the commercial development;
3. Given that the infrastructure did not conceive of commercial developments there are likely to be issues of illegal on-street parking;
4. Pressure would result in a need to erect signage to the premises and change the character of the neighbourhood forever;
5. The establishment of a commercial entity in a residential neighbourhood would likely result in “dead” frontage in the evenings when other residential properties would be seen as occupied;
6. The front of the property could be paved without any permission being required, thereby affecting the setting of the building;
7. The mixed use renders community initiatives such as neighbourhood watches ineffective;
8. There is also the introduction of social problems such as prostitution, drug peddling and an increased likelihood of other serious crimes such as robbery, rape and murder;
9. Dependent on the nature of the development approved and its proximity to a residential facility (5 feet per floor from the boundary wall according to the planning authorities), the residence will be adversely affected by over-looking and shadowing coupled with a loss of privacy and deterioration in the property’s value.

These are just a few of the issues governing mixed use developments and therefore within the current context, any such planning strategy is likely to undermine property values and irreparably damage the character of once beautiful residential communities

The Case Against Mixed Use Developments in Jamaica .....Part 1

In recent times, there have been a few urban planners who have come to the fore, expressing the view that the planning focus in Jamaica, should shift from exclusionary zoning to a more inclusive strategy, which would allow commercial and residential developments to coexist. Ostensibly, this should address issues such as travel times to work and play, coupled with matters such as energy usage and so on. Of course that would presuppose that Jamaica boasts a well developed urban planning strategy with an effective monitoring mechanism with meaningful penalties. The simple truth is Jamaica has satisfied none of those preconditions, which would be critical, in the facilitation of what has become an annual excursion, into the realm of fantasy about a strategy of mixed land use, that is yet again being advocated.

Indeed, in the Jamaican context, the concept of mixed-use represents a mere palliative to some urban planners and potential homeowners who see their dream of purchasing a home slowly slipping into an abyss of despair. However, the functional reality which confronts the nation points to an exacerbation of the current housing crisis for the lower and middle classes in the event of an acceptance of this rehashed planning paradigm.

It is instructive to note that the National Shelter Sector Strategy report of 1987 pointed to the need for 15,500 new housing units and 9,700 upgrades each year to 1990 and an average of 4,009 new units and 2,580 units annually to the year 2006 for Jamaica’s housing needs to be met. Needless to say, this was not achieved and the Ministry of Housing in December 2004, advised that 13,260 new housing units will be required annually between 2001 and 2025 to satisfy the projected demand for housing. Therefore any strategy that would lead to a reduction in the housing stock would not only be counterproductive, but inimical to the stated policy of the Government of Jamaica

Jamaica’s historical antecedence, suggests that a strategy of mixed-use only serves to reduce the quantum of available housing for residential use e.g. Richmond Park and Eastwood Park Gardens. The reduction in the availability of housing stock would create deferred or pent-up demand and only serve to artificially increase prices. With an increase in the price of housing (in this context rental), there would be an understandable shift from residential occupancy to commercial, as the higher rents in those transitional communities would be more favourable to commercial usage. This would be compounded by the reality, that those persons who desire residential property and who would be able to afford the higher rents, would no longer be interested in the community, given its changing character. Hence, the trend for those Jamaican communities designated for mixed use, over the medium to long term, would be for the establishment of commercial zones, with perhaps a few “intransigent” homeowners remaining, who refuse to acknowledge that their community and their investments have been sacrificed on the altar of expediency.

An amended land use strategy which accommodates both residential and commercial establishments, also artificially affects the selling prices of housing in those areas so identified. For example, the introduction of commercial activities or at least turning a blind eye to creeping commercialization in Seymour Lands, Trafalgar Park and the residential sections of New Kingston has resulted in some of the most expensive properties in the island. Indeed land is currently retailing at US$1 - 1.25m per acre in these areas and residential dwellings (apartments, townhouses among others) are being sold at approximately $22,000 per square foot. As outlined by noted realtor, Valerie Levy, at the recent Real Estate Association of Jamaica Symposium, in Kingston 6, a town home, retails at approximately $13,600 per square foot whereas in the Norbrook area, values range between $12,000 to $18,000 per square foot. These examples can be replicated across all urban districts in Jamaica, particularly where some semblance of commercialization has been allowed which creates an additional premium for land and housing stock. However, in large part these communities have managed to maintain their residential character at least for the time being.

This leads to a shift of segments of the population, to more marginal dwellings and lands where prices are more affordable, but travel times are longer and consequent energy use greater. This is a situation which can be readily identified in every parish across Jamaica. Indeed Kingston & St Andrew is replete with examples of marginal living with in excess of twenty (20) inner-city communities. Other examples are Shelter Rock - St Catherine, Bucknor – Clarendon, Canterbury - St James to name but a few. Hence any strategy which would create artificial demand and drive more persons to reside under marginal living conditions cannot be recognized as an optimal strategy.

Further, the track record of the Jamaican planning authorities, has been less than stellar and raises serious questions as to whether their counsel, can truly be accepted. Indeed, there is no success story, that can be singled out in the Jamaican experience, where the strategy of mixed use has effectively worked and property values increase, within a context, where the land use is maintained as mixed. In fact, one of the greatest flaws in the calls for higher densities and now mixed use of lands, has been the failure to recognize the need for additional infrastructure, particularly water.

Densities of 55 habitable rooms per acre are being proposed but with no additional water supplies for the affected communities, residents are already complaining about a considerable fall in water pressure and in some cases a lack of water. However this failed strategy had long been recognized in communities served by the water mains along the Spanish Town Road in Kingston and has led to no water above ground floor level, in several of the high rise dwellings, in these high density communities. Therefore, for this strategy to be proposed on an island-wide scale is astounding and points to a failure to effectively grasp the real issues confronting the housing market in Jamaica by many of our urban planners.

Jamaica Must Remain Centred

Jamaica is not for sale! That oft repeated phrase is often espoused by expectant politicians often at strategic times in the run-up to a General Election exercise in Jamaica. This, in light of recent comments attributable to Ambassador Marco Mazzocchi-Alemanni, head of Delegation of the European Commission in Jamaica, who has put on offer a $9 billion grant programme to incentivise a reduction in bureaucracy, inclusive of a reduction of the building approval process to 90 days. The fact that a similar suggestion was rebuffed by the previous political regime in power in Jamaica, seems not to have delayed this thought process, with the representative now going so far as to suggest in part, the use of “silent agreements” to facilitate meeting that artificially prescribed deadline.

A “silent agreement” is a hidden contract, whether orally executed or written and would be suggestive of an untoward strategy of granting building approvals quietly, and then working retroactively to satisfy any outstanding requirement. Inherent in that strategy, would also be the exclusion of the citizenry from the decision making process and with the timeline being suggested would almost certainly either exclude Environmental Impact Assessments (EIA’s) where applicable or compromise the findings in such a way that such findings would be meaningless. Whereas, the Government of Jamaica’s (GOJ’s) impatience for investment is shared by most persons, Jamaica is signatory to several conventions which have established guidelines in treating with development proposals, particularly those requiring EIA’s. To depart from those would have dire consequences for the economy, inclusive of the country’s ability to source funding.

That it would now be suggested that GOJ, operate by a system of subterfuge, by engaging in a process driven by “silent agreements” and being induced by an offer of grant funds is not only offensive but absolutely reprehensible. Jamaica’s image is tainted in the Global arena by a perception of increasing corruption and with the label of “kleptocracy” already being loosely applied, it is expected that the GOJ will in due course publicly repudiate that offensive suggestion, as efforts are made to maintain the moral compass of the island.

Jamaica is a constitutional democracy and its people do have a legitimate say in the process of governance. Indeed, Prime Minister Bruce Golding, has already dubbed himself as “Chief Servant” and in keeping with that nomenclature, it is expected that the wishes, expectations and indeed rights of the citizens will never be abrogated by the State and that the process of Development will continue to be handled with a decorum which has been impacted by decades of success.

Point of Order Mr Speaker!

Speaker of the House of Representatives and Member of Parliament for North-East St Andrew, Delroy Chuck has thrown his support behind Prime Minister Bruce Golding in the PM’s call for higher density living in the Kingston Metropolitan Area. Speaking on "Perkins Online", on Wednesday, March 5, 2008, with talk show host Wilmot Perkins, Mr Chuck cited examples in North America, which he claimed supported this development strategy being promoted by the Golding regime of mixed use for selected residential communities. Indeed the Speaker of the House identified this strategy as being critical to the investment process and bemoaned the time delays in obtaining building approvals.

However, detractors to this strategy point to the British model, which is more akin to Jamaica’s development strategy, where there are designated residential zones and commercial activity is focused around the Main Street’s located just outside the residential neighbourhood and in other places zoned for commercial activity. Whereas from time to time there may be some applications for change of use, the character of the residential communities remain largely unaffected and in particular circumstances moves are afoot to return those properties to purely residential use. Indeed, the single largest commercial zone in Jamaica, Downtown Kingston is largely unoccupied because of a crime concerns. However, because of a lack of effective oversight by the state regulators, there is encroachment from the commercial entities in the residential areas "uptown", creating an artificial demand for the units and driving prices upwards.

Whereas Speaker Chuck, did acknowledge the difficulties involved in treating with the issues in Downtown Kingston, he was far more interested in the rezoning of residential communities, stopping just short of PM Golding’s recent declaration that anyone living on three-quarters of an acre of land in Jamaica is living in “luxury”. Indeed, so strident was Mr Chuck's presentation that it begs the question, "To what extent does his perspective reflect the views of the largely residential Kingston 8 constituency he represents?

Indeed, detractors to this perspective, continue to point to a paucity of political will in confronting the real challenges to the housing crisis in Jamaica and hence this renewed focus on what is thought to be the point of least resistance, the residential communities. Increased investment flows will occur in circumstances where there is order, but this wildcat approach to development, that is being adopted, where not even enough time is to allowed for Environmental Impact Assessments, is deemed to be neither in the interest of the investor nor resident.

Oh for a breath of fresh air!!

The air quality in the Golden Triangle is compromised. That is not a statement which lies in the realm of conjecture, but rather could more accurately be classified as a truism. The problem is attributable, to the plethora of construction sites in the community, with little or no mitigation practices, regarding the ensuing dust pollution. Hence, any resident within the broad area, will advise, that their houses and furniture are covered in dust and the air is thick with all manner of pollutants. This, is of course compounded by night, when a few of the commercial establishments within the community decide to burn their daily waste. All this in full view of the regulatory bodies of NEPA and the KSAC.

Any cursory review of the academic literature, will reveal that dust generated by various construction site activities, can indeed make a significant contribution to local air pollution. Indeed, the high levels of dust in Seymour Lands, in conjunction with other outdoor pollutants, are responsible for an increase in the number of respiratory illnesses affecting the citizenry, particularly the elderly and small children at this time. Further, it is accepted that whereas inhaled particles may aggravate asthma and bronchitis, very small particles may cause cancer. It is also worthy of note, that dust also increases the rate of corrosion and therefore continued exposure to a dust nuisance is likely to cost substantial sums of money in terms of additional healthcare costs, as well as higher home maintenance bills. Hence, quality of life is compromised without adequate mitigation measures, which should seek to prevent or at least minimize the levels of air pollution emanating from these construction activities.

Mitigation Measures should include:

1. The use of water sprays to dampen exposed working areas that can generate dust;;
2. The enclosure and routine dampening of fine particle materials on site;
3. The utilization of wheel washing facilities to be used by all vehicles leaving the site;
4. That absolutely no construction materials are stored outside the site perimeter;
5. That absolutely no construction waste be stored outside the site perimeter and that all requirements for construction waste disposal be adhered to; and
6. At the conclusion of the works, all bare surfaces to be effectively landscaped as soon as possible.

In the absence of rigid enforcement of these mitigation measures, the quality of life in the Golden Triangle and the wider Kingston Metropolitan Area, will continue to decline as the city continues to be covered in a sea of pollutants.

BREACH OF PUBLIC TRUST : NO CONFIDENCE IN NEPA – poll says

The controversial National Environment and Planning Agency, NEPA, has received an overwhelming vote of no confidence from the readers of the Trafalgar Council Blog. Indeed in a poll conducted over 6 days, 71 percent of persons polled, indicated that the regulatory agency no longer enjoyed their confidence, versus 28 percent who expressed a degree of comfort. The remaining one percent expressed no views on the matter. Readers were responding to the question “ After being bombarded with criticism from Morant Point to Negril Point, does the National Environment and Planning Agency (NEPA), continue to enjoy your confidence as a planning body?”

Since its inception on February 13, 2008, the Trafalgar Council Blog has conducted two polls among its growing readership base to derive a sense of public sentiment on some of the current issues at hand which can impact, negatively or positively on residential communities. Whereas these polls are not deemed to be scientific, in so far as it only polls those readers who choose to participate, it can be indicative of the public divide on some issues.

In the first poll the results were as follows:

Where urban planning is concerned, do you believe that the citizenry should have a greater say?

Yes - 78 %
No - 8 %
Don’t care - 13 %

However, the second poll was more specific in nature as it sought to assess the impact of concerns already being debated in the media about the activities of NEPA. This was deemed particularly significant, regarding the expressed concerns of several citizens associations and environmental associations, coupled with the substantial degree of controversy surrounding the approval granted for the development of a cemetery at Burnt Ground, Hanover. The results have been an overwhelming vote of note confidence in NEPA and continues to highlight the growing degree of public disaffection with the regulatory agency. This being particularly poignant at this time, as Prime Minister Bruce Golding, continues to propose the formation of a single regulatory body to address building approvals, in a time period not exceeding 90 days. According to the Golding strategy, if the regulatory body does not give a definitive answer in this 90 day timeline, the developer should then proceed as if approval had been granted.

This has been particularly worrisome in residential communities, which are under threat from creeping commercialization and flawed urban planning strategies, which continue to compromise property values. The Golding proposal, also remains ominously silent on the level of public consultation under the new dispensation, already a sore point between residents and NEPA. Part of the buffer mechanism at present, has been the intervention of the local authorities (Parish Councils), which, though lacking capacity (in terms of staffing and equipment), continue to play an important role in the regulatory process. However with the Golding one stop approach, it is apparent that the role of the Parish Council, would be minimised or obliterated from the building regulatory mechanism and persons fear that they will be left to the whimsical dictates of a strengthened NEPA.

Indeed for the Golding strategy to be successful, Environmental Impact Assessments (EIAs) for example, would have to be completed after detailed scientific and socio-economic investigation and equally detailed consultation with the citizenry, a process that currently takes up to 1 - 2 years, in less than 90 days. This begs the question “Is the Government willing to compromise scientific rigour and environmental imperatives on the altar of short term political expediency?”

Whereas, there are few who would not sympathize with the Prime Minister’s impatience for development, such development must be sustainable and due consideration given to the input of the citizenry, coupled with realistic and honest assessments, regarding the medium to long term impact of these proposed developments. In the early to mid-nineties, several financial entities embarked on a building and investment programme, which, while looking impressive on balance sheets, left many with an acute cash flow dilemma and were ultimately deemed reckless and in due course led to their closure. Caution must therefore be exercised, that in this due haste to push building projects, that history doesn’t repeat itself, leading to the decimation of the Jamaican Economy.

The Jamaican Homeowner No Longer a Silent Partner

For decades now, various citizens groups have been engaged in verbal conflict with the Government of Jamaica. This protracted debate, is centralized around the citizens’ right to participate in the decision making process, particularly when the issues at hand could be perceived to be inimical to the citizens’ interests. In most cases, the issue involves a lack of public consultation or a flawed process of consultation and the casual indifference with which concerns are treated by the regulatory agencies. The experiences of the residents and/or owners of property in the Golden Triangle and the residential sections of New Kingston are no different, with the state authorities, from time to time lending only a patronizing ear and then proceeding to dismiss the expressed concerns, as many would an errant child and proceed apace. This has also been reflected in the current controversy regarding the Burnt Ground cemetery in Hanover and the stance adopted up to this point by the State. Though this matter has been tested before the Courts, some of the state entities continue to operate as if there are no guidelines governing their activities and that they are a law unto themselves. However as Justice Bryan Sykes noted in the matter of Northern Jamaica Conservation Trust et al v NEPA et al (2005) -

“…in Jamaica, the Constitution is but one of the sources of this rights conscious age. In formulating the matter in this way, the aim is not a demand for perfection in human affairs but rather about ensuring that the executive behaves lawfully. No one has argued nor indeed could argue that the executive has the right to breach the law (even if the law is “merely” procedural) when making a decision it is authorised to make. This way of looking at the matter benefits the citizen or stranger who will know that he is not subject to whimsical and irrational decisions. This is not encroaching on the domain of the executive. It is about ensuring that executive power is used in accordance with the law. It enhances the rule of law and does not derogate from it which in turn can only enhance the quality of life of the citizenry. This is one of the natural outcomes of a constitutional democracy built on the rule of law”.

Indeed, for most of the concerns being expressed by the Jamaican citizen over time, in terms of urban planning and development issues, the law has been very clear and the precedents exist to guide the process. For example on the matter of public consultation, for which most communities continue to agitate, the legal standards are clear as demonstrated in the case of R v Brent London Borough Council where it was held that -

“It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken”: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168.

Further the law is also clear on matters involving promises made by public bodies exercising a statutory function such as NEPA. Indeed, as has been experienced by the citizens of Seymour Lands in particular, regarding the Public Consultation that was held on August 21, 2006 and the subsequent dialogue involving a joint select panel, from both the citizens and NEPA, where particular promises were made by the NEPA representatives and subsequently reneged upon, after good faith negotiations. Specifically, the residents’ views were solicited at the Public Consultation and they expressly and unanimously rejected the higher density ratios and setback distances being proposed by NEPA. However those density ratios and setback distances are currently being provided to developers as guidelines, though there has been no alteration in the position of the citizens.

Indeed, implicit in the notion of a Public Consultation, is a reasonable expectation that the solicited views of the participants, are deemed critical to the proposals at hand and not an exercise in sophistry, geared towards the legitimization of a pre-determined position, albeit retroactively. This is particularly germane in matters where the long term impact can be deemed to be inimical to the citizens’ interests. Further if there was any significant change in circumstances which would have legitimized this stance, the principles of good governance and the legal standard outlined above, would necessitate that the residents be advised by NEPA of such circumstances. However no such consultation has been held. In this regard Justice Sykes notes in his ruling on Northern Jamaica Conservation Trust et al v NEPA et al (2005) that -

“The Court of Appeal in the UK has held that where a public body exercising a statutory function had made a promise and that such promise induced a legitimate expectation of a benefit that was substantive, any frustration of that expectation would be an abuse of power unless there was an overriding interest justifying the departure from what was expected”.

Therefore, since the legal standards exist; they should be used to guide the mode of operation by the State regulatory agencies, so that the current disparaging stance regarding the rights of the citizenry in having a say in the development process, can be addressed once and for all. Jamaica is a nation of laws and for the democracy to survive all parties are duty bound to show due deference to the law and not adopt anti-social postures which could ultimately undermine the principles upon which the Constitution is founded.


Disclaimer: The article above is not intended to constitute legal advice and therefore persons are encouraged to consult with an Attorney-at-Law before acting upon any of the legal issues outlined above.

Jamaica's Residential Districts Under Threat

Myopic leadership and self-serving populist pandering seem to be watchwords governing urban planning in Jamaica. This in the wake of comments attributed to Prime Minister Bruce Golding and Jamaica Institute of Architects President, Louise McLeod, at the International Symposium of Caribbean Modernist Architecture, held at the Jamaica Conference Centre in downtown Kingston on February 29,2008.

According to the Jamaica Observer online publication "Observations", Mr Golding asked, “How many people can we reasonably accommodate in the city of Kingston?” and then proceeded to opine that one family living on a three-quarter acre of land was a “luxury”, heralding yet another epiphany on his proverbial journey on the road to Damascus. “Are we going to have to opt for significant increases in our densities, in order to create some open space between these sites of high density living, creating the open space that will provide the lungs for the Corporate Area to breathe?” reportedly continues Golding. For her part, McLeod reportedly claims “I’m in agreement because Kingston has no green space for people to enjoy and meet. We need to change the pattern for development.” Both however failed to acknowledge the failure of the state, urban planners and architects to be guided by the various citizens groups and other bodies who have been pointing to their flawed urban planning strategies for decades. Further, no attempt was made to rationalize the notion of increasing densities and lowering setback ratios to 5-feet per floor to this new "concept" of increased open space.

However, it seems to have escaped the Prime Minister and the Jamaica Institute of Architects, that what has truly compounded the housing crisis in Jamaica is the failure of the state to stop the creeping commercialization into the residential communities, depleting the quantum of available housing stock, thereby creating an artificial but greater demand for housing and forcing prices upward. Indeed, the greatest irony in Jamaica today, is that the state is now being perceived as seeking to commercialize several residential communities while only paying lip service to the issues confronting the crime infested commercial districts. This leads to the obvious question of what are the strategies and effective timelines, which will see the rejuvenation of Downtown Kingston, previously recognized as the hub of commercial activity in the Corporate Area of Kingston and St Andrew?

To abuse the power of the State with ridiculously high density ratios and setback distances, that seek in effect, to force an aging population out of the comfort of their homes is unconscionable and indeed constitutes a breach of the citizens’ constitutional rights. To seek to increase densities, in urban communities without any corresponding plan to treat with the basic infrastructure, bespeaks a fundamental incomprehension of the issues which continue to undermine the sustainable development of Jamaica. What of the plans to create new towns along the corridor of Highway 2000, which was posited to address some of these issues that are being alluded to? Indeed as it was outlined at inception, persons would be able to live in these new developments and work in the Corporate Area if they so desired and commute quickly via the Highway. Wasn’t the Urban Development Corporation (UDC) part of that planning exercise, and if so what is this new remit all about? Further, what is the point of a plan to rehabilitate the rail system in Jamaica, if not to treat with some of the issues associated with urban concentration? Finally what of the citizens, do we have any say or did we abrogate our democratic rights to the State?

Jamaica is at a crossroads at this juncture in its development. As the State continues to facilitate creeping commercialization, thereby creating artificial demand and hence driving up housing prices and rentals, the issue remains which segment of the population is truly being targeted by this new strategy? Not the elderly, as the issue for those persons on a fixed income, whose homes are finally mortgage free is not to move into a high rise apartment complex and be paying monthly maintenance fees for the rest of their lives. Surely not the young graduates and regular Jamaican workers, whose inability to afford the astronomically high rents and associated mortgage payments in the Corporate Area are well known. For those who fall outside of those parameters the question remains where will this stop? Is it that we are so bereft of ideas that the only solution to Jamaica’s housing problems are to savage the city’s few remaining residential districts by transforming them into urban ghettos with poor supporting infrastructure? All this because of a paucity of political will to treat effectively with the lawless behaviour of a connected few and their penchant for creeping commercialization and the persistent use of a strategy of targeting the points of perceived least resistance.