The RIU Controversy: First Real Test of Golding Regime

The current controversy regarding the RIU Hotel in Montego Bay and the construction of a fourth floor in defiance of previous rulings by the National Environment and Planning Agency, St James Parish Council and the Civil Aviation Authority brings into sharp focus issues of enforcement and political will in Jamaica. Indeed, this issue stands to prove the mettle of the Golding regime, regarding their stance on illegitimate construction activity, as the current circumstances which would place the fourth floor in the flight path of planes using the Sangster International Airport in Montego Bay, a significant issue of public safety, would necessitate the demolition of the offending floor. However, the Government of Jamaica has had a less than sterling track record in dealing with issues of this type in previous years, usually opting for negotiated settlements with errant developers after the public hue and cry wanes. In other words, enforcement issues in Jamaica are usually utilized as points of leverage for a negotiated settlement with offending developers, which points to a lack of political will to preserve the integrity of the approval process.

There are many public examples of this flawed strategy in Seymour Lands and New Kingston where demolition of illegal construction was required but nothing done. The most glaring has been the partially completed construction at the corner of Trinidad Terrace and St Lucia Avenue which was literally built on the sidewalk and exceeded the number of floors approved. This would have necessitated some demolition activity but has been tied up in the courts for nearly a decade, with no resolution in sight. In the meantime, the building has become a public nuisance and a haven for all types of untoward activity. Similarly, there was much public bleating by the KSAC about an illegal fourth floor on an apartment complex on Braemar Avenue in Seymour Lands, which they publicly claimed should have been demolished; however there are now 2 additional four storey complexes on the same street all duly approved by them and other state regulatory bodies.

However, this issue also points to the need for a complete overhaul of the approval process and the need for an island wide probe. Indeed the Government of Jamaica is incapable of assuring anyone that surreptitious and potentially harmful approvals are not being granted in other local authority jurisdictions. Whereas in the instant case in St James, the Parish Council did not reportedly grant approval for the fourth floor of the hotel complex, the issue points to a flawed process whereby the signature of a single officer and access to the Seal would be all that is required for formal approval to be granted. This points to a system that would be highly susceptible to corruption and to the extent that similar systems obtain in other Parish Councils, should be addressed with urgency.

The Government of Jamaica needs to act decisively in this matter. For too long have developers in Jamaica sought to engage in untoward practices and escaping with mere slaps on the wrists. This has led to an explosion in unsafe building practices, breaches of the approvals process and in light of poor enforcement mechanisms, facilitated a virtual free for all. Indeed, it has been argued that most new hotel constructions on the North Coast are in breach of established setback distances from the high-water mark and boast questionable sewerage facilities with little or no remedial action being taken. Hence this issue regarding the RIU in St James, will define whether the new Government is committed to the principles of sustainable development or whether they are willing to sacrifice public safety on the altar of political expediency.

Forensic Audit Into Approval Process Needed

There is need for a comprehensive investigation, inclusive of full forensic audit into the building approval and enforcement processes in Jamaica. This being the inescapable conclusion, after the latest misstep which has been uncovered regarding a major hotel construction site in St James where reportedly but inexplicably a previously unauthorized fourth floor construction plan received surreptitious approval by way of a senior staff member of the local authority, but without the formal knowledge and approval of the St James Parish Council and the National Environment and Planning Agency (NEPA). Further, the amended construction plans were reportedly found in the Parish Council files, duly signed, stamped and allegedly back-dated, where they may well have remained buried, if the issues at hand did not involve a glaring issue of public safety.

Whereas, Mayor Charles Sinclair has ordered an immediate investigation into the most recent development, this may well be deemed to be insufficient, as there has been such a loss of legitimacy of both the Local Authorities (Parish Councils and KSAC) island wide and NEPA in terms of approvals and enforcement, that only an island wide probe ordered by Prime Minister Golding, will suffice at this time. Further given this alleged untoward development in St James and the long standing and deep rooted suspicions regarding the approval process, the State is incapable of providing credible assurances that similar occurrences do not or have not obtained in other parishes.

Indeed, examples of questionable approvals and poor enforcement has spanned decades and affects all parishes. In the case of the Golden Triangle and the residential sections of New Kingston, there are several examples of construction projects being given approval to construct for example studio apartments, only to have them later converted to one and two bedroom apartments. There has been illegal construction of basements and the state stipulations about setbacks, reserved green space and plot ratios remain largely academic. However in each case there would have to be a multi-agency review of plans coupled with site inspections bolstered by Surveyors and Architects reports coupled with the interventions of other industry professionals, so it remains inconceivable that obvious breaches would remain undetected. Indeed, so pervasive has been this activity, that the Trafalgar Council has on the basis of the Planning and Development manual published in 2007 by NEPA, declared “Most New Construction in Golden Triangle is Illegal”.

This is equally evidenced in other parts of the Corporate Area, with multi-storey dwellings and commercial buildings being constructed with absolutely no setback from boundary lines and yet being only detected, conveniently, when construction was either completed or near completion. To make matters worse, several of those projects were constructed in the midst of busy thoroughfares, teaming with vehicular and pedestrian traffic on a daily basis, yet the regulatory bodies claimed to be oblivious, until it was functionally too late. Equally in terms of enforcement, several blatant breaches have been reported over periods of time spanning decades with minimal to no action being taken. While cognizance is taken of a lack of agency capacity, the inordinate delays in investigation and the failure to follow-up raises serious issues about the integrity of the process. A simple example of one of the more nonsensical incidents involves the sudden failure to locate the addresses of commercial buildings boasting large signage displays and operating on popular roadways in the midst of residential communities, by personnel from regulatory agencies to serve enforcement notices or investigate breaches.

Similarly, in terms of several new constructions on the North Coast of Jamaica, setback ratios are routinely breached and issues such as sewerage disposal are so ineptly dealt with that questions regarding the process of oversight must be raised. Again, the breaches are so glaring that it would be impossible for them not to be determined by the regulatory bodies.

This lends additional credence to the oft-quoted aphorism that “…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. In fact Lord Chief Justice Hewart in his ruling further advised that “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”. Whereas these comments form the basis for the precedence, under English Law, establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision, prudence would dictate that the Local Authorities, NEPA and the Town and Country Planning Authority among others be guided by its far reaching applicability and implications.

This, therefore raises the issue yet again, as to the role of the political directorate in the approval process particularly at the local level. Whereas in the instant case in St James, the Parish Council did not reportedly grant approval for the fourth floor of the hotel complex, there is a view that politicians at the local level across the island, have too much influence over the approval process and the prevailing ethos is such that it can actually foster corrupt activity, if persons are so minded. In this vein, Prime Minister Golding’s suggestion that a single entity be established to treat with building approvals may well be part of the solution, however in the interim, it seems only appropriate that a radical staff restructuring exercise be embarked upon involving employees associated with building approvals and enforcement in the regulatory bodies and that political personnel populating the critical planning committees be rotated off these bodies. Indeed, at the level of membership of the Town and Country Planning Authority and the Board of Directors at NEPA, it would seem appropriate that such appointments be limited to 12 month intervals, preserving the integrity of the process and again reducing even the perception of corruption. These entities all have substantial power and in the absence of functional oversight can become corrupted and hence the appropriate system controls must be instituted to preserve the integrity of the process.

For too long have accusations been levelled about corruption and cronyism, regarding building approvals in Jamaica and its therefore timely for a full forensic audit to be conducted and a dispassionate determination of the truth made. In the event corruption and graft is discovered, those responsible would be expected to be punished to the fullest extent under the law.

Re-Engineer the Approval Process in Jamaica

“All I wish is for my children to be able to take a breath of fresh air in Jamaica by the time they are forty years of age!” For many Jamaicans, this has become their singular yet unselfish ideal, borne out of enlightened self-interest, given the environmental degradation being occasioned by the poor oversight responsibility exercised by the regulatory agencies coupled with a paucity of political will. Indeed for many, their dreams have been shattered by decades of economic malaise and a mounting casual disregard by the State for proper urban planning strategies, which are being sacrificed on an altar of expediency and short-termism. For example, in Seymour Lands and the residential sections of New Kingston, the current building boom while been marked by widespread breaches of the State’s regulatory framework for urban planning, also highlights the contempt with which sustainable environmental practices are treated. However, this contempt is also being replicated across the other urban centres in Jamaica. Some of the imperatives are highlighted below:

Legal Overhaul
Indeed, while there is heightened construction activity in Seymour Lands, there remains no enforceable mechanism to treat with Air Pollution emanating from construction sites and even for the appropriate disposal of construction waste. Whereas a protocol does exist for the Disposal of Construction Waste, it is breached with impunity and therefore has lost its legitimacy. As a result it is estimated that the air quality in the above community has deteriorated by some 30 – 40 percent, with the attendant increases in respiratory ailments among the citizenry. This points to the need for a protocol which is actually enforceable. Further, it is critical that the laws governing construction activity in general be reviewed. For instance, the Building Code which currently obtains in Jamaica was drafted in 1907. Similarly development in Kingston and St Andrew is supposed to be guided by a Development Order prepared in 1966, however in the current context there is seemingly a more laissez faire approach to development. Equally the principle of adverse possession and the Limitations of Action Act need to be revisited and placed in a modern context to facilitate orderly development and once and for all discourage antisocial activity inclusive of spontaneous settlement (squatting) on private lands. Current squatting laws only protects Crown Lands and therefore reflects a deficiency that should be addressed with urgency. Therefore in essence there is need for a comprehensive review of all laws governing development in Jamaica inclusive of the NRCA Act which should be amended to facilitate the compulsory consultation of the citizenry regarding any developments within their respective communities.

Densities and the Environment
Similarly, the matter of linking increased densities to access to a central sewer line would deceptively appear to indicate environmental consciousness on the part of the State. However, in the context of the parishes of Kingston and St Andrew, the Soapberry Waste Water Treatment Plant is now just being commissioned into service putting to an end a period of years when there were no functional treatment plants. Even so, according to KSAC Mayor Senator Desmond McKenzie only 35% of residencies in the Corporate Area are attached to the sewer system with the majority in the foreseeable future continuing to rely on more traditional waste disposal mechanisms. However, just being in relative close proximity to the sewer line (attached or not) in Seymour Lands and other areas increases the density from 30 to 50 habitable rooms per acre and attracts a 100% surcharge on water bills, whether or not there is a functional treatment plant. Further, this has not impacted the continued flow of 20 million gallons of waste water and 1.5 million gallons of solid waste into the Kingston Harbour daily and puts paid to any notion of environmental sensitivity on the part of the State.

Enforcement
Similarly, stipulations for plot ratios, setback ratios and the minimum green area space established by the National Environment and Planning Agency (NEPA) are equally frequently breached facilitating a sustainable development crisis in many urban centres in Jamaica. To compound this issue, there is a lack of capacity at the level of the local authority (in this case the KSAC) and NEPA to engage in a meaningful and sustainable enforcement and monitoring exercise. For example, the KSAC now boasts a complement of 6 Building officers up from 2 in 2006/7, to police all construction activities and enforcement issues across the parishes of Kingston and St Andrew. Further both agencies lack any financial incentive to embark on any meaningful enforcement exercise. Firstly both are at least partially funded by the Government of Jamaica and given budgetary constraints operate primarily in a parsimonious environment. Hence, in the main they are unable / unwilling to engage in any form of corrective legal activity. Further, even if they engage persons functioning in breach of the law and are successful in a court of law, any monetary award does not inure to the benefit of the regulatory body, to even cover legal costs but are turned over in their entirety to the Consolidated Fund of the State. This has led to a situation where the regulatory bodies are actively encouraging citizens to challenge developers in the courts to address breaches rather than seeking to fulfil their statutory obligations. This is clearly an untenable scenario.

Preserving Process Integrity
Also as part of the approval process, varying committees are established to review and adjudicate applications with the Prime Minister who has portfolio responsibility for Planning and Development being the final arbiter in the event of an appeal by a developer. The first area of concern must be the KSAC Building and Town Planning Committee, which boasts a significant number of politicians ( with no discernible relevant areas of expertise) coupled with a few technocrats determining the process. This is a dangerous practice and increased emphasis needs to placed on the technocrats with the involvement by the political directorate being minimal and such participation occurring on a rotating basis to avoid even a perception of corruption. There is also the need for a strengthened oversight process coupled with greater autonomy for the local authorities to seek redress through the courts. Similarly for both the Local Authority and NEPA, persons affiliated with enforcement activity should be rotated from time to time ( perhaps after every 6 – 12 months) so as to avoid undue familiarity between staff and developers and preserving the integrity of the process and again reducing even the perception of corruption. In this regard any breach by personnel must be dealt with harshly and swiftly under the Corruption Prevention Act and / or any other applicable law. Further, whereas there has been some capacity building, particularly at the level of the local authority, there are particular concerns regarding the quality of decisions being made. For example, in Seymour Lands and the residential sections of New Kingston, there is feverish construction activity with respect to high density developments but there has been no increase in water supplies, which leads to reduced water pressure or no water at times, yet there is no slowdown in the pace of approvals.

The Voice of the People
Finally, the process needs to facilitate the involvement of the community based organizations at every stage of the application and enforcement processes. This has been a particularly vexed issue for a protracted period, as the views of citizens in the main are given minimal to no weight in a process that often times affects their living environment, property values among other issues. In fact the system has become so compromised that for example, developers rarely seek to address matters relating to the Discharge or Modification of Restrictive Covenants prior to the commencement of construction as they are obliged to do but which would necessitate the involvement of the citizenry, but instead seek to regularize the process on a de facto basis. Even in the cases of breaches, the involvement of the citizens is minimal and response times so slow (some might argue deliberately) that by the time the respective regulatory body intervenes there is certain knowledge that nothing can or will be done. Not only has this led to a loss of legitimacy of the process but has led to an overall deterioration in the quality of life being experienced in residential communities as unscrupulous developers recognising the deficiencies have sought to engage in varying activities which in some cases threaten to ruin the character and ambiance of some residential communities. Hence whereas cognizance is taken of the desire of the State to streamline the approval process due care must be exercised that the requisite control mechanisms are established to finally inculcate the concept and functional tenets of sustainable development.

Most New Construction in Golden Triangle is Illegal

Most of the new construction activity occurring in Seymour Lands (Golden Triangle ) and the residential sections of New Kingston, are in breach of the Jamaica’s Planning and Development guidelines. Based on the Planning and Development Manual developed by the National Environment and Planning Agency, NEPA, and ratified by the Cabinet of Jamaica in June 2007, there are breaches relating to plot ratios, setback distances and minimum green area space particularly for apartment and townhouse complexes. Indeed according to the guidelines which NEPA sources advise “are supposed to be rigidly adhered to”, plot ratios range from 33 1/3 percent to a maximum of 50 percent ( plot ratio defines the total floor area of buildings permitted to be erected on a site ) but in actuality persons are building out plots to as much as 85 – 90 percent, highlighting poor enforcement strategies by both NEPA and the Kingston and St Andrew Corporation (KSAC).

The Following site coverage standards apply in Jamaica:

	Maximum Permissible Plot ratio
Residential (Single Dwelling Homes)	50%
Residential (Townhouses)	33 1/3%
Residential (Apartments)	33 1/3%

Source: Planning and Development Manual, NEPA, June 2007

Indeed the purpose of the plot ratio is to prevent the adverse effects of over-development on the layout and amenity of buildings on the one hand and to ensure a proper sense of enclosure with buildings on their sites on the other hand. Further, in its guidelines for new residential buildings NEPA states that “new development or extension should not result in significant loss of daylight or overshadowing of any habitable or useable room within a neighbouring building”. Further, NEPA in its advisory on the development of multi-storey residential dwellings (apartments and Townhouses), in instances where densities range from 75 to 375 habitable rooms per hectare, stipulates that “any restrictions in titles, rights of way, access use or light will significantly affect design and layout. They should be checked and removed before construction begins”. It should be noted that NEPA proposed and then unilaterally adopted in 2006, the following density ratios for muti-family developments in Seymour Lands:

30 habitable rooms per acre / 74 habitable rooms per hectare – Minimum of ½ acre must be available

50 habitable rooms per acre / 125 habitable rooms per hectare where there is access to central sewerage

Further in the cases of townhouses, NEPA stipulates by way of its Planning and Development Manual 2007, that the minimum green area space within the net plot area is 45%. For Apartment Complexes, NEPA also stipulates that for “recreational areas for children and youth, the minimum size of which shall be the area of a half circle with a 6 metre radius (626 sq ft or 58 sq m)".

Setbacks for Apartments

Given the preponderance of muliti-story apartment dwellings in the Golden Triangle and the residential sections of New Kingston, it is instructive to note the following setback regulations for that category as stipulated by NEPA which further highlights the plethora of breaches in Seymour Lands and the residential sections of New Kingston:

The minimum distance between apartment buildings should be twice the height of the buildings measured on the side of the front (or back) elevation to a maximum of 21.0m (68.9 feet). The minimum distance between two end elevations of 2 apartment buildings should be 1.0m (3.3 feet) plus 0.3m (1 foot) for each additional storey or partial storey at ground level to a maximum of 4.0m (13.1 feet). This is not applicable if the end elevation has the only window of a habitable room. If so the distance should be a minimum of 7.5m (24.6 feet). Along either front or back elevation there should be a privacy zone of appropriate length.

The setback from the roadway will be guided by the height of the building and the width of the road but should not be less than 21.0m (68.9 feet) from the road centre line

Similarly in its site planning regulations for Apartment complexes NEPA stipulates:

No building or other permanent structure is to be erected within 12.0 metres (39.4 feet) of the centre line of a public road.

A minimum of 3 metres (9.8 feet) wide perimeter area should be contiguous to all side and rear property boundary lines adjacent to single-family zoned land. An additional 0.6 metre (2 feet)shall be added to this area for each storey beyond one of the buildings adjacent to such property lines.

A minimum of 2.5m (8.2 feet) wide perimeter area shall be contiguous to all side and rear property boundaries adjacent to such property lines.

A minimum of 2.5m (8.2 feet) wide perimeter area shall be contiguous to all side and rear property boundaries adjacent top other multi-family or non-residential zoned land

Height of Buildings

Similarly NEPA stipulates the following maximum allowable heights with respect to particular building developments

	Maximum Allowable Height	Maximum Density
Single Dwellings	2 storeys	n.a
Townhouses	2 storeys	30 hrpa
Apartments	3 - 4 storeys	50 hrpa

hrpa - habitable rooms per acre

These densities particularly in the case of apartment complexes is predicated on access to a central sewerage line. However even with the much proclaimed Soapberry Wastewater treatment plant only 35 percent of residencies in the Corporate Area are actually connected to the sewer and still according to KSAC Mayor Senator Desmond McKenzie some 20 million gallons of wastewater daily continues to pollute the Kingston Harbour coupled with a daily inflow of 1.5 m gallons of solid waste. This lends credence to the widely held view that the laying of sewerage pipes in communities such as Seymour Lands, is merely a ruse to substantially increase density ratios and is only peripherally driven by environmental concerns.

Hence the issues related to the construction boom in the Golden Triangle and the residential sections of New Kingston continue to point to a flawed enforcement mechanism. Buildings are being constructed on boundary walls, apartment complexes are being constructed with no green areas or recreational areas among other ills, plot ratios are ignored, setback ratios remain in the realm of academia and the minimum green area space stipulations continues to be treated as a utopian concept. Therefore the laws governing the construction industry in the main, as evidenced by activity in the Seymour Lands and the residential sections of New Kingston are being dismissed with impunity by unscrupulous developers and further compromised by a paucity of political will to effectively treat with the situation coupled with an absence of capacity within the regulatory agencies to manage the process.

An Open Letter to Prime Minister Golding

Dear Prime Minister,

While we are cognizant of the fact that the Jamaican government is now seized with the prospect of facilitating accelerated development and whereas such a policy thrust is welcomed. there are some concerns which we believe are worthy of your consideration prior to effecting any changes to the development process as currently obtains. Indeed we note that in the past two to three days an unprecedented assault has been launched against the the National Environment and Planning Agency (NEPA) and the Kingston and St Andrew Corporation (KSAC) by investors / developers citing their intent to commence multi-billion dollar investments and claiming that such investments are being stymied by the regulatory arm of the state apparatus.

Whereas concerns about the operations and efficacy of the two entities have been repeatedly raised, due care must be taken that the process is not hijacked and allowed to degenerate into an opportunistic exercise on which success is predicated on the bypassing of the requisite control mechanisms which would afford these and similar developments a degree of sustainability over the medium to long term. Further there are those which posit the view that 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. This presupposes 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 this exercise.

The KSAC now reportedly boasts a total of six (6) building officers who are responsible for enforcement and inspections for the parishes of Kingston and St Andrew and there are similar concerns about the existing capacity at NEPA which boasts island-wide responsibilities. Further in the communities of Seymour Lands, Trafalgar Park and the residential sections of New Kingston, (hitherto referred to as the Trafalgar Council communities) given their centralized location, are no more than 5 minutes away from well established and zoned commercial zones with numerous entertainment facilities precluding the need for the addition of those activities within the residential communities.

Prime Minister, over the past week The Trafalgar Council has had meetings with both NEPA and the KSAC and whereas a process of meaningful dialogue has commenced, the issues which confront us are not localized and in our opinion deserves your intervention as the Minister with portfolio responsibility for Planning and Development in Jamaica. Indeed, some the immediate challenges being faced by the citizens of the Trafalgar Council communities, are dust pollution, noise pollution and a flawed urban planning process which does not functionally afford the residents an opportunity for input. However, the difficulties described are already covered in most part by varying laws but there is almost no enforcement or such enforcement is so selective, as to be deemed arbitrary.

Specifically, the issues which confront the residents which fall under the jurisdiction of the Trafalgar Council are as follows:

Setback distances: The setback ratios (distance between the building and the property line) has been unilaterally altered to five (5) feet per floor which routinely leads to issues of overshadowing and overlooking adjoining properties coupled with loss of privacy particularly in the current circumstances where there are extraordinarily high plot-ratios (plot ratio defines the total floor area of buildings permitted to be erected on a site). Further in the absence of effective monitoring by the regulatory agencies, in several cases developers breach these guidelines, with very little recourse to affected parties. Indeed in several cases, the setback distances are so low and plot ratios so high that the construction sites cannot accommodate their own equipment, materials or waste on-site and therefore developers have resorted to use the sidewalks and roadways as their storage facility. There is also no mitigating strategy to treat with dust pollution emanating from these construction sites and hence there is an increase in respiratory ailments within the Seymour Lands and New Kingston communities in particular as there has been an appreciable deterioration in air quality;

Density Ratios: This has again been unilaterally altered by the regulatory authorities from 30 to 50 habitable rooms per acre in the vicinity of sewer mains. This has been a particularly egregious example of the abuse of state power, as the citizens of the Seymour Lands in particular rejected this notion when it was proposed at a public consultation by NEPA in 2006. However, the effect has been the preponderance of 4 storey apartment blocks which is not only out of step with the prevailing ambiance of the communities but make little to no provision for any green areas whatsoever. The matter has been further compounded by the fact that the Soapberry Treatment Plant is only now being commissioned, which means that the previous utterances about environmental concerns, justifying the laying of sewer pipes were a mere facade to facilitate increased densities. Indeed prior to Soapberry there was no functional treatment plant in Kingston and St Andrew for several years.

Poor Supporting Infrastructure: Whereas the regulatory bodies have approved these higher density developments in The Trafalgar Council communities, the supporting infrastructure has not been upgraded to accommodate these developments. Water supply has been a particular concern in this regard, as no new supplies have been brought into the Trafalgar Council Communities, despite a plethora of high density developments receiving state approvals over the past three (3) years. However according to data provided by the National Water Commission (NWC) and reported in the Economic and Social Survey (2008), water production for Kingston, St Andrew and St Thomas declined by 7.2 percent in 2006 and increased by a mere 2.7 percent in 2007. In the meantime, the number of connections in the above named parishes, increased by a whopping 14.9 percent in 2007 alone. This explains the low water pressure or in other cases the absence of water from the affected communities, a situation which worsens with the addition of each new development. Similarly, the roads are deteriorating considerably under the increased traffic flows and atrocious rehabilitative work facilitated by the KSAC and the National Works Agency (NWA).

Poor Enforcement Mechanisms: The communities are buffeted by numerous breaches of the building codes coupled with breaches associated with improper property usage. There is the instance of a sensuous massage parlour being given State Approval and even though the error was acknowledged no remedial action has to date been taken. There are other instances where buildings are constructed on top of boundary walls or extended to adjoining boundary walls. However, when challenged the regulatory agencies advise that given budgetary constraints and the fact that even when they prevail in a court of law any financial award is turned over to the Consolidated Fund, there is no particular impetus to take legal action. In fact in recent times, the State regulatory agencies have increasingly been seeking to shift the responsibility to individual citizens to take remedial action. Similarly, where applicable, where there is need for Discharge and/or Modification of Restrictive Covenants, this is supposed to be determined prior to the commencement of construction, but in most cases this is done after the fact and with no reference to the owners of adjoining properties.

Creeping Commercialization: The fact, that the Trafalgar Council communities are in fact zoned for residential usage only, has not served to deter the scourge of creeping commercialization. With dead frontages and no human activity by night in some instances, this has led to increases in criminal activity and has forced the residents in the main to rely on private security firms to provide additional support to the Police Force. In other cases where business activity occurs primarily at night, there are routine problems associated with night noises and poor sanitary control coupled with loss of privacy and on street parking. In the days there is a considerable increase in traffic resulting from the commercial entities operations and a preponderance of on-street parking with resulting impact of impeding access to residences

Prime Minister, we therefore appeal to you as you prepare for what we are confident will be another thought provoking presentation in the Budget Debates, that due consideration be given to the issues raised here, which not only affect the named communities but are replicated across other urban centres. Jamaica prides itself as operating a modern democracy, but such modernity dictates that a well developed process of consultation between State and citizen must be observed and cannot be routinely ignored outside the electoral periods. It is therefore believed that with the citizens being included in the development process and their views being solicited and given weight to in the approval process, will lead to an enrichment of the process of development while by no means interfering with the timeliness of the decision making process. In that regard, we are cognizant of your expressed intent to enact a single piece of legislation that is applicable to all regulatory agencies in the process of development. However we would suggest that 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. Failure to accept the tenets of a modern democracy and continuing to relegate the role of the citizen to be a mere bystander in the process of development is to undermine the political process and foster social instability with its attendant ills.

NKCA Fetes Past Executives

Clockwise: Partially hidden Dr. Venice Bernard-Wright, President Sean Newman, Maxine Henry-Wilson MP, Leslie Kitchin, Olive Gayle, Thelma Fenty,Leslie Fenty and Trevor Samuels

The Hall of the Worthington Friends Church in New Kingston on Saturday afternoon was emblazoned with colour and enlivened with song as members of the New Kingston Citizens Association, NKCA, feted and honoured past executive members of their association. Expertly guided by Master of Ceremonies William Reeson, who is also the Vice President of the NKCA, the function was led in prayer by Pastor Wolfley of the Worthington Friends Church, followed by a brief address by the affable and hardworking President of NKCA Sean Newman, who sought to chronicle the periods during which the honorees had served but also used the opportunity to recognize the contributions of and observe a moment of silence for other long-serving members of the association including Mrs Amy Robertson and Dr Wyante Patterson who recently passed away. The honorees were regaled in song by the vivacious NKCA Public Relations Officer and event co-host Cherry Porter Jackson, Joan Folkes and Debbie Campbell.

In her role as guest speaker, Member of Parliament for South-East St Andrew, Mrs Maxine Henry-Wilson spoke on a theme of service to the community but also used the opportunity to update the audience on the plans for the $40 million to be allocated to the constituency from the newly established Constituency Development Fund, CDF, noting in particular that these funds were to be expended on development projects only and would not constitute any form of political handout. Indeed, the former education Minister while expressing some disappointment for the decline in the quantum of funds to be actually received under the CDF, expressed her unequivocal support for the principle governing its formation and not surprisingly announced that a substantial portion of the funds would be used to facilitate the strengthening of Early Childhood institutions in the constituency. Mrs Henry-Wilson also presented the honorees with their plaques and certificates of appreciation. Those honoured were:

Former Presidents:

Trevor Samuels
Olive Gayle
Leslie Kitchin
Haughton Bowen

and former Executive Members:

Leslie Fenty

Thelma Fenty
Cara Murray
Vernon Derby
Dr. Venice Bernard-Wright
Sybil Brandon
Ivy McKay

Mr Trevor Samuels moved the vote of thanks on behalf of his fellow honorees paying particular tribute to Ms Denise Williams who spearheaded the stunning transformation of the Church Hall and other hardworking members of the current Executive of the NKCA for their contributions to what was dubbed by all to be an unqualified success.

We are Ready Minister Tufton!

The following is a press statement which was issued by the Trafalgar Council on April 17, 2008

Agriculture Minister Dr Christopher Tufton, has received the backing of the Trafalgar Council for his initiatives to establish a residential fruit tree and an urban agriculture programme. In making his contribution to the 2008/9 Budget Debate, Dr Tufton also gave a commitment that “we will make Jamaica green again, and we are ready to partner with every Jamaican householder, in every community, and every district to achieve these objectives”. However, in lending their support to these initiatives and commitments by the Agriculture Minister, the Trafalgar Council is also concerned that the current development approval process adopted by both the KSAC and NEPA which allows setback distances of a mere five (5) feet per floor from the boundary line and a strategy of increasing the density ratios from 30 to 50 habitable rooms per acre where there is a central sewer line, is inimical to any environmental regeneration exercise in the Corporate Area.

Indeed, under Minister Tufton’s backyard gardening initiative, “participating residents will each be encouraged to devote a minimum of 30 square feet of yard space, to producing two to four crops per year”. However, as President of the New Kingston Citizens Association and Trafalgar Council executive member Sean Newman points out, “in most of the newly approved construction projects, the plot ratios are excessive leaving in some cases a clearance of less than 5 feet from the boundary lines and therefore providing absolutely no green space for the residents”. Hence, the Trafalgar Council is calling for a revisiting of the 5 feet per floor set back regulation as implemented by the KSAC and NEPA and would propose that there be a prescribed degree of coordination between the Ministry's initiative and these regulatory bodies to ensure programme optimization.

In this regard the Council notes that this issue yet again highlights the flawed process of oversight, by the Local Authority (KSAC) and NEPA, which have responsibility for enforcement but which have inexplicably continued to ignore the flagrant breaches which obtain in Seymour Lands (Golden Triangle), Trafalgar Park and the residential sections of New Kingston. 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 NEPA and the requisite assurances of a willingness to act on such breaches with dispatch, are critical to the collective interests of all. Indeed already there are projects in the community, where construction has been effected on top of adjoining boundary walls and yet others where the setback distances are so low that it overlooks and overshadows adjoining premises.

“We are ready, Minister Tufton” says Trafalgar Council Convenor Joseph Cox, “we are supportive of any initiative which preserves the environment and have expressed our concerns repeatedly about our communities being transformed literally into concrete jungles”. However, with the current development approval strategies employed by both the KSAC and NEPA the single critical issue remains, “Where do we plant these trees and crops?”

Jamaica: The 90-day Approval Process Revealed

Flawed Urban Planning?: Impact of the 5 ft. per floor setback distance (Click on pic. for closer view)

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 process from the developer to the regulators. But what are the processes to be completed during this 90 day interval? Significantly, these processes are outlined in Ministry Paper 7 which was tabled in 1999 and which provided detailed guidance on the monitoring framework necessary to ensure that the 90-day target was achieved. Implementation of Ministry Paper No. 7 has been deemed an integral part of the Development Approval Project within the Ministry of Industry, Investment and Commerce which has obviously been embraced by the new Golding regime.

Under the new dispensation it is apparent that the Office of the Prime Minister (OPM) has the overall "ownership" of the development approval process. Specifically, based on press reports OPM will be required to collect monitoring information on the development approval bodies' achievement of the 90 day approval processing target. The Planning and Development Division is the lead Department at OPM in this regard. The Town Planning Department must provide information to OPM regarding outstanding applications. In addition, the Town Planning Department will make recommendations on applications where one or more commenting agency fails to provide recommendations within the agreed time frame. The detailed breakdown of the 90-day target outlined in Ministry Paper No. 7, 1999 is shown in Table 1.

Table 1: Maximum Time Allocations Necessary to Achieve a 90-Day Assessment Process

KSAC/Parish Council/Local Planning Authority sends completed application to Town Planning Department. (part of NEPA) - 2 weeks (This period is not included in the 90-day calculation)

Town Planning Department receives completed application from Parish Council/KSAC/Local Planning Authority and sends application to critical commenting agencies - 2 weeks (The 90-day target commences from the time when a completed application is received by the Town Planning Department)

Commenting agencies assess application and make recommendation to Town Planning Department - 3 weeks

If applicable Town Planning Department takes application to the Subdivision Committee or takes a decision on the application - 2 weeks

Town Planning Department advises Parish Council/KSAC/Local Planning Authority of its recommendation and advises Ministry of Environment and Housing (now OPM) of outstanding applications - 1 week

KSAC/Parish Council/Local Planning Authority makes a determination on the application and advises the applicant - 4 weeks

Ministry Paper 7, 1999 & Author's updates

However this process obviously excludes any meaningful interaction with affected third parties, meaning neighbours and persons within the footprint of the development project. It also seemingly excludes the usage of Environmental Impact Assessments (EIA’s) and would make redundant the current 3-week time interval stipulated by NEPA for public notice to discuss the findings of EIA’s. Also, there is no stipulation that matters relating to the Discharge or Modification of Restrictive Covenants should be dealt with as a condition precedent for project approval. There is also an absence of a prescribed oversight procedure despite so much power being vested in the Town Planning Department as well as any provision for appeals by aggrieved parties.

Whereas the impatience of the Government of Jamaica to facilitate increased investment is quite understandable due care must be exercised that long established industry and national safeguards are not sacrificed on the altar of expediency. Already some unilateral decisions have been made by the State, regarding set-back distances and density ratios, the legality of which are likely to be challenged in the courts. Further there is need for continued and expanded dialogue with the citizenry in the process of development as is dictated in any modern democracy. Failure to adhere to the basic tenets of good governance, would only lead to a continued process of disconnect between the State and the citizenry and undermine the requisite partnerships that are deemed critical to the development process.

Zero Tolerance Indeed!

The Chairman of the Kingston and St Andrew Corporation, KSAC, Mayor Desmond McKenzie announced with great fanfare earlier this year a “zero-tolerance” approach to persons who chose to store their construction material and waste on the roadways and sidewalks of the Corporate Area. However, the usually proactive Mayor has been inexplicably silent on this issue, despite a plethora of complaints to the local authority (KSAC). Indeed the problem in the community of Seymour Lands has become so acute that the air quality has been estimated to have deteriorated by at least 40 percent in the vicinity of some of the projects, as no attempt is being made by control the dust nuisance by the multiple, active construction sites and in several cases construction material is stored in the roadway and on the sidewalks.

Indeed the sidewalks and roadways are being specifically used to store sewerage pipes, concrete blocks, marl, sand, gravel and all manner of construction waste material. The roads have been severely damaged in some instances but inaction by the local authority has been the strategy employed. Indeed, the worst example of this has been Argyle Road and Musgrave Avenue in Seymour Lands; however the frequent complaints by the citizenry are routinely ignored by the representatives of the local authority. Ironically the local authority remains part of the building approval mechanism which allows persons to construct new building with setback distances of 5 feet per floor from the property boundary, which apparently is not being policed either and in some instances, the distance is so narrow that the heavy-duty equipment required on those sites cannot successfully enter and function on the premises and are routinely parked on the sidewalks and in the roadways impeding access.

This has proven to be a particularly vexed issue with residents of not only Seymour Lands but also those residing in the residential sections of New Kingston where in some instances building construction occurs on top of the perimeter walls dividing properties and foundations for multi-story buildings are excavated (leaving a 40 ft hole in the ground) and then abandoned. All this within the full view of the Councillor for the Trafalgar Division and Deputy Chairman of the KSAC’s Building Committee, Waderoy Clarke, who routinely traverses the very streets on which the breaches are being committed but takes no remedial action.

Whereas the mayor continues to enjoy the confidence of the citizenry, it is critical that he intervenes urgently in the management of the local authority as unscrupulous developers continue to dismiss the edicts of the KSAC, perpetuating a chaotic approach to development. Continued failure to do so will only result in a further loss of legitimacy for the local authority and give credence to a notion of ineffectual governance. The notion of zero tolerance is usually a welcome strategy particularly in the maintenance of law and order. However, with respect to its usage by the KSAC, it has now become a mere buzzword which usually points to a carefully orchestrated sound bite or equally catchy headline, but in actuality heralds a protracted period of inactivity and lassitude.

Jamaica’s 90-day Approval Process: “It’s Clearly Unclear”

“It’s Clearly Unclear”. When that malapropism was first coined In Jamaica a few years ago, its architect was the subject of much public derision. However, nowadays there seems to be no more appropriate phrasing to characterize this notion of the proposed 90-day development approval process. Indeed over the past few months, there have been conflicting comments regarding this process from the National Environment and Planning Agency (NEPA) and the Minister of Water and Housing Dr Horace Chang. However given the recent streamlining process of placing NEPA under the Office of the Prime Minister as well as the National Land Agency, there is clearly a renewed effort at facilitating this process.

This is in fact in keeping with 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 there continues to 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. This as it is generally accepted globally, that an EIA usually takes 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, with NEPA intoning that “Only projects that need no environmental impact assessment (EIA) will be assessed and approved in 90 days or less”, the first sign of the uncoordinated strategy was revealed. This was compounded by Dr Horace Chang unequivocally stating that "We want to make the planning approval process, especially for residential areas, within 90 days’. However, the issue degenerated into absolute confusion when Prime Minister Bruce Golding opined, that Jamaica cannot remain underdeveloped solely to preserve the environment. Indeed, Mr Golding has been recently buoyed by the fact that for the period October 1 to November 23, 2007, the controversial National Environment and Planning Agency, “completed the approvals for 78 percent of the applications received proving that efficiencies can be achieved”. However by the Prime Minister’s own admission in Jamaica “very often there is no correlation between what is approved and what is built.” This therefore begs the question, regarding what exactly is to be accelerated during this proposed 90-day time interval? “It’s clearly unclear.’

When one word can save the World

As Jamaicans brace themselves for a substantial increase in Motor Vehicle license fees, it raises the issue of how easily the process of governance can be facilitated, particularly when there is the political will to do so. The Government of Jamaica, is adamant that it will give additional financial autonomy to the local authorities (parish councils) and therefore in the Estimates of Expenditure, 2008/9, is projecting an increase in motor vehicle license fees of 85.9 percent relative to 2007/8. Similarly, a 70.4 percent increase is projected for property tax receipts, however in that case, it is expected that increased compliance will be the policy thrust. All this has been facilitated by the simple stroke of a pen and needless to say without prior consultation with the citizenry. Indeed, the average citizen in residential neighbourhoods, can only dream of a time when their concerns would be treated with such dispatch. In fact, one of the oft repeated criticisms leveled at the State bureaucracy in Jamaica, is its adherence to a strategy more appropriately geared to a feudal society and which is marked by its singular lack of consultation with the citizenry.

The Prime Minister’s has already put in train a strategy geared to the development of a single piece of legislation that is applicable to all regulatory agencies in the process of development. However, is there any provision being made for the input of the citizen? Already Section 9(5) of the Natural Resources and Conservation Authority (NRCA) Act, says that the NRCA (a part of the National Environment and Planning Agency, 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, which has placed that agency routinely at variance with the citizenry. 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, part of the process of Local Government Reform dictates the need for an increased process of consultation but with the exception of a few cases that has not been the case. In Kingston and St Andrew, there are an estimated 760 Citizens Based Organizations (CBO’s) and an active Parish Development Committee (PDC), but the levels of consultation and involvement in the development dialogue by these citizens groups are severely limited. Indeed, there is no involvement of the citizenry in the establishment of budgets and the process of public consultation is more reflective of the local authority lending a patronizing ear to an aggrieved citizen or group of citizens rather than adhering to any prescribed process of consultation.

Persons are elected to represent constituencies or political divisions in Parliament or at the Local Authority, but after such elections, most, if not all votes cast by these individuals, are reflective of their respective party positions rather than of any process of consultation with their constituents. In Jamaica’s annual Budget Debates, itself a misnomer, the respective Government Minister’s merely rise and announce measures to be implemented during a particular fiscal year, after a process of discussion between parliamentary colleagues, which precludes the involvement of the citizenry. Jamaica prides itself as operating a modern democracy, but such modernity dictates that a well developed process of consultation between State and citizen must be observed and cannot be routinely ignored outside the electoral periods. Failure to accept the tenets of a modern democracy and continuing to relegate the role of the citizen to be a mere bystander in the process of development is to undermine the political process and foster social instability with its attendant ills.

The Noise Abatement Act: Justice on the Horizon?

The newly appointed Commissioner of Police Rear Admiral Hardley Lewin’s expressed intention to spearhead a crackdown on abuses of the Noise Abatement Act has been largely met with muted optimism liberally doused with flagrant skepticism. This after years of a now jaded public being buffeted by pious platitudes and equally unfulfilled promises from previous leaders of the security forces. Whereas the current response may well be patently unfair to the Commissioner, one of principal difficulties that his office faces is the perception of a less than arms length connection between members of the police force and several of the entertainment events, which have been operating with casual disregard for the tenets of the Noise Abatement Act. Indeed, it is a matter of public record, that in several reported cases, police personnel are either part of the entertainment Promoter’s inner-circle or at least provide off-duty security services at the venue.

This gives currency to the oft-quoted aphorism that “…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. In fact Lord Chief Justice Hewart in his judgement, further advised that “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”. Whereas these comments form the basis for the precedence, under English Law, establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision, prudence would dictate that the Jamaica Constabulary Force is guided by its far reaching applicability and implications.

Indeed whereas the Commissioner’s statement that "The matter of night noise is distressing not to just me personally, but to those people who have to suffer underneath it and we have to put a stop to it”, bring temporary solace to the “true believers”, it has to be followed up by meaningful initiatives with demonstrable successes, for the majority view to be swayed. Indeed, cognizance must be taken of the fact that persons which have been afflicted by Night Noises for a number of years have been further frustrated by the inability / unwillingness of the JCF to enforce the Noise Abatement Act (1997). In an apparent recognition of this, Rear Admiral Lewin continues “Clearly, we have to do a lot more than we have been doing now and change the way we have been doing it, and we are going to use means available to us."

While this stance is laudable, the Commissioner is also required to ensure that his subordinates enforce the tenets of the Noise Abatement Act impartially and in fact needs to spearhead an investigation geared towards the minimization of “moonlighting” by members of the Force, at these entertainment venues. Further, since several street dance operators are also guilty of illegally abstracting electricity to power their sound equipment, the implications for law enforcement are clear. Also, a far more judicious approach to the granting of permits by the police needs to be applied, as some of the more recent decisions are questionable e.g. approval for J’ouvert celebrations beginning at 2 am and seeking to route the Road March of the Jamaica Carnival through residential communities, in conjunction with the National Work Agency. Whereas in the case of the latter, good sense eventually prevailed, that is the sort of scenario which creates a loss of legitimacy for the Police Force. In the same vein, the Commissioner needs to review the oft-repeated “excuse” about jurisdictional encroachment, which seemingly precludes police officers not assigned to particular police divisions from intervening in instances of flagrant breaches of the Noise Abatement Act, in the face of inaction from those within the area. Similarly, the Police needs to be far more proactive in the process of granting of Spirit Licenses and other attendant licenses particularly to establishments which are repeat offenders under the Noise Abatement Act. Whereas the ultimate solution of developing designated entertainment areas in the midst of the commercial zones and far away from residential areas is outside the purview of the JCF, there is still tremendous room for improvement under the current dispensation.

Indeed, under the Noise Abatement Act it is an offence for a person to sing or play any noisy instrument at any time of the day or night so that the sound can be heard beyond a distance of 100 metres (328.1 feet) and can be reasonably capable of causing annoyance to persons in the vicinity. Similarly, the law also prescribes that any noise beyond 2am on weekends will be presumed to be a nuisance and deemed to be in breach of the law and be similarly actionable. Hence, strict enforcement of the tenets of the Law, may well be the only way to re-engage an already dubious citizenry, that has been chastened by the duplicitous behaviour of law enforcement, in treating with the issue of noise abatement, over a protracted period of time.

See Also
Commish Turns Attention to Night Noises

What Price for Development in Jamaica

It is indeed ironic, that the Jamaican society is now seized with the notion of facilitating accelerating development, but the strategy is opportunistic at best. in so far as it ignores all requisite control mechanisms, which would afford these developments a degree of sustainability over the medium to long term. Indeed, some the immediate challenges being faced by the citizenry are dust pollution, noise pollution and flawed urban planning compounded by an increasingly aloof and arrogant state mechanism. However, the difficulties described are already covered in most part by varying laws but there is almost no enforcement or such enforcement is so selective, as to be deemed arbitrary.

This has led to a loss of legitimacy for the state apparatus, which is supposed to police the named categories. For example, with the boom in construction activity in Seymour Lands (Golden Triangle) there is no effective dust pollution control mechanism. Hence, the air quality in the community has deteriorated substantially over the past few years and despite persistent appeals to the regulatory agencies, nothing is done. Similarly, the Chairman of the Kingston and St Andrew Corporation (KSAC) and Mayor, Senator Desmond McKenzie, indicated earlier this year that a zero tolerance approach would be taken regarding the storage of construction materials on the sidewalks and roadways. No action has been taken. Indeed at one particular construction site in the Golden Triangle, the contractor has from inception not only stored his material on the sidewalks near to the project but routinely stored excess materials on the sidewalks of nearby roads. However, in this regard the KSAC inexplicably remains impotent.

Similarly, the residents of Seymour Lands, Trafalgar Park and the residential sections of New Kingston are all affected by night noises and the failure of the police to enforce the Noise Abatement Act. While the new Commissioner of Police Rear Admiral Hardley Lewin, has expressed an intention to treat with breaches, the fact that approval was recently given to J’ouvert celebrants to commence their road march and party activities at 2 am, militates against any particular expectations that the status quo will change. However, in the interim, in some of the high priced gated communities, persons are only allowed to sleep at the absolute discretion of the party promoters and club operators as to when they chose to terminate their nocturnal activities.

Equally, residents in the Kensington Avenue area in New Kingston have been afflicted by helicopter landings and departures from the nearby Mutual Life Centre. Though appeals have been made to the Civil Aviation Authority (to effect a change to the approved flight plans so as to minimize impact) nothing has been done. This situation is such though that roofing tiles in some of the apartment complexes have been falling out, given the vibrations from the low-flying helicopter.

Further, the State apparatus has given approval for the operations of at least one sensuous massage parlour and that particular activity is expanding considerably in the named communities above. Repeated complaints have been made to the relevant authorities and mistakes acknowledged, yet absolutely no remedial action has been taken. There has no been no activity seeking to prevent the operations of the newer facilities either.

Similarly, density ratios and setback distances have been unilaterally altered which ensures that any new multi-storey dwelling automatically will overshadow and overlook its immediate neighbours, creating a loss of value among other ills. Further, in all cases there is no provision made for additional water to be piped into the communities yet additional developments are approved routinely. Developers are also required to post signage regarding their proposed developments. In most cases this is completely ignored, as is the fact that the restrictive covenants in the majority of cases need to be modified or discharged prior to construction. These activities occur routinely after the fact.

Hence for Jamaica’s development to be sustained there is need for the introduction and enforcement of order. The KSAC, NEPA and the Police have all failed in the effective discharge of their duties so far. There is therefore an urgent need for a new approach to development to be adopted, as the current mechanisms which pits citizen against developer and the state is not tenable and will only serve to undermine true progress and stymie sustainable development. The law may well be a tool of social engineering, but failure to adhere to its tenets will lead to the unraveling of the very fabric of the Jamaican society.

The Fear Factor and the Jamaican Parish Council

Minister of State with responsibility for Local Government Robert “Bobby” Montague has been reported by the Gleaner as stating that “the parish council as an institution has the capacity and the capability to man and police the new (building) code”. However, at the Kingston and St Andrew Corporation (KSAC), the largest of the local authorities (parish councils), there is a Planning Department with reportedly 6 building officers (up from 2 inspectors / enforcement officers in 2006) for the parishes of Kingston and St Andrew. These officers are charged with the responsibility to inspect all building sites requiring KSAC approval, investigate and follow-up on all complaints about illegal land uses and spearhead any legal action required. Ironically the KSAC advises that where successful legal action has been undertaken any financial award must be transferred in its entirety to the consolidated fund with the local authority being responsible for any legal fees incurred. This has led to sub-optimal performances and has resulted in a continued loss of legitimacy for the Local Authority.

Further, as highlighted by the Chairman of the Association of Local Government Authorities (ALGA) Mayor Milton Brown in a recent Gleaner Editors Forum, in response to a question regarding the breakdown in enforcement of development breaches, there is a “fear factor” that was of real concern in that regard. This has led to situations where enforcement notices are issued but never served as inexplicably the addresses for the premises or the owners of said premises can now longer be found. Indeed, in the case of their enforcement counterpart in the Corporate Area, the National Environment and Planning Agency, NEPA, homeowners are advised that in the event of a breach of use, for an enforcement notice to be served, both the owner and the tenant, if applicable, must be on the premises in dispute at the same time of service. Of course this scenario also opens the possibility for corrupt practices to take root and due care must be exercised that this does not occur or is stymied when it does.

Indeed in a statement dated March 12 2008, The Trafalgar Council noted its concerns “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”. Further, The Council noted 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”.

A new building code is critical as the country continues to be guided in law by the Building Code of 1902. However, when faced with a scenario where in the case of the KSAC, the size of their Building Committee is larger than the quantum of building officers employed to police the most populous sections of the country, there is cause for alarm. Similarly in St Catherine, with a population in excess of 400,000 persons there are a mere 5 building officers, which is equally preposterous. Therefore in the final analysis, it must be concluded that the Local Authorities do not have the capacity or the capability to supervise the new building code, whenever it is actually enacted. Indeed, they have failed to effectively police current building breaches and there are no new discernible strategies which would facilitate renewed optimism.

See Also

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

Commish Turns Attention to Night Noises

After decades of complaints, the citizens of many urban centres in Jamaica are now boasting new hope regarding the vexed issue of night noises. This renewed hope is founded on the reported assurances provided by newly appointed Commissioner of Police Rear Admiral Hardley Lewin that he will be receiving recommendations by Friday April 4, 2008, with a view to dealing with the issue of night noise and the enforcement of the Noise Abatement Act. Speaking on Monday, March 31 2008, at the Jamaica Constabulary Force (JCF) monthly press conference, the Commissioner is reported in the Gleaner as saying that "The matter of night noise is distressing not to just me personally, but to those people who have to suffer underneath it and we have to put a stop to it…..Clearly, we have to do a lot more than we have been doing now and change the way we have been doing it, and we are going to use means available to us." The Commissioner also indicated that the recommendations would look at the permitting and the policing of night events.

This is particularly comforting for the residents of Seymour Lands, Trafalgar Park and the residential sections of New Kingston which have been afflicted by Night Noises for a number of years and been further frustrated by the inability / unwillingness of the JCF to enforce the Night Noises Act (1997). A classic example of the casual disregard that the law has been treated with is the annual J’ouvert celebrations, inclusive of a road march, which commences at or about 2 am. However Section 3 of the Noise Abatement Act 1997 also colloquially referred to as the Night Noises Act, states that no person shall, on any private premises or in any public place at any time of day or night-

(a) sing, or sound or play upon any musical or noisy instrument; or
(b) operate, or permit or cause to be operated, any loudspeaker, microphone or any other device for the amplification of sound;

in such a manner that the sound is audible beyond a distance of one hundred metres (328.1 feet) from the source of such sound and is reasonably capable of causing annoyance to persons in the vicinity so, however, that where during the period specified in subsection (4) such sound is audible beyond that distance in the vicinity of any dwelling house, hospital, nursing home, infirmary, hotel or guest house, such sound shall be presumed to cause annoyance to persons in that vicinity.

Subsection (4) of the Noise Abatement Act specifically refers to that time interval between:

(a) 2 0’clock and 6 o’clock in the morning on a Saturday or Sunday; and
(b) Midnight on a Sunday, Monday, Tuesday, Wednesday or Thursday and 6 o'clock in the following morning.

Hence, if these celebrations had indeed received the requisite permits prescribed under the law from the Police, such permits would have been granted in contravention of the Noise Abatement Act (1997). Therefore for the Commissioner’s new thrust to tackle night noises to have the requisite effect, cognizance must be taken of the actual tenets of the law and control mechanisms instituted so that the JCF itself is not held to be complicit in the facilitation of any potential breaches.

Whereas, due deference must be given to the citizen’s right to entertainment, there is need for order in the pursuit of such enjoyment and it is in that regard that the Commissioner’s interventions must be viewed. The residents, particularly in residential sections of New Kingston, are being buffeted by frequent street dances and by Stage Presentations at Mas Camp on Oxford Road and other places of entertainment with no attempt being made to modulate the sound, much to their discomfort. Not to be outdone the residents of Seymour Lands and Trafalgar Park are equally affected by Night Noises.

In fairness, the personnel at the New Kingston Police Post led by ASP Cameron has exhibited intolerance to the flagrant breaches of the Noise Abatement Law in that particular area but it is clear that there is an insufficiency of personnel to treat with this matter, as well as matters of jurisdictional encroachment, which tend to stymie the efforts. Order is a necessary condition for the development of any society and therefore citizens in affected communities are looking to the JCF yet again, in hope that this initiative to treat with night noises will be successful.

See Also
Know the Law: The Noise Abatement Act