RIU Controversy: Building Approvals Merely Indicative Not Binding

“Although RIU maintains that these revised plans were submitted to the Parish Council and approved, the sequence of events cannot be accurately reconstructed.” That’s the response of the RIU Hotel Group to the growing controversy regarding the construction of an “illegal” fourth floor at their property in St James, in defiance of previous rulings by the National Environment and Planning Agency (NEPA), St James Parish Council (Local Authority) and the Civil Aviation Authority. However in a now characteristic strategy adopted by local authorities island wide, “RIU will resubmit the revised plans to the Parish Council who will forward copies to NEPA and the other relevant agencies to have the three buildings with four storeys approved.” In other words, though breaches have occurred in terms of the number of floors constructed, the local authority and other regulatory bodies are now willing to engage in a re-assessment exercise which could lead to the retroactive approval of these “revised plans”, which had inexplicably been stamped and approved by an official of the Local Authority. Indeed for there to be any re-consideration by the regulatory agencies, would also seek to suggest a degree of flippancy and arbitrariness in the original determination, in so far as no new material fact has been brought to bear pointing to an initial error, nevertheless reconsideration of a blatant breach is now a viable option

This issue raises a number of questions which have particular relevance to the communities of Seymour Lands, Trafalgar Park and the residential section of New Kingston, given that they routinely face similar challenges coupled with the fact that in the main all Local Authorities are similarly organized:

Has the Local Authority sought to perform a forensic audit into all approvals which were signed and thereby granted by the same senior official implicated in the RIU controversy and in that vein what assurances, if any, can be provided that other projects have not been similarly compromised?

Are building approvals granted by the Regulatory Bodies inclusive of the Local Authorities merely indicative or are they meant be binding upon a developer?

What are the effective versus notional processes of oversight within the Local Authority to ensure that the integrity of the approvals process is maintained?

Does the local authority have the legal standing to be the sole arbiter in the approvals process when substantial amendments to building plans are approved and if not what are the functional systems replete with internal checks and balances to ensure that other regulatory agencies namely the National Environment and Planning Agency and the Town and Country Planning Authority are duly consulted?

The fact that the controversial “fourth floor” has reached the stage where it has already been primed for painting, how is it that the breach is only now being detected by the Regulatory Agencies and what are the implications for the inspection and verification processes regarding the quality of work done in this and other projects falling under the jurisdiction of the local authority?

What percentage of breaches eventually uncovered by the Local Authority lead to negotiated settlements with the developers versus demolition of the sections found to be in breach and if negotiated settlements have been principal strategy utilized, what additional strategies are being employed to preserve the integrity of the approvals process?

The fact that the Local Authority and the other regulatory agencies are even willing to reconsider at this stage their previous decision to allow only three storey buildings at the RIU site, undermines the approvals process. Indeed, it suggests that building approvals granted by these agencies are merely indicative and not binding and highlights an absence of political will to enforce the rules. Whereas this explains the plethora of questionable building projects in Seymour Lands and the residential sections of New Kingston, this public fumble by the regulatory agencies will only succeed in providing additional impetus to unscrupulous developers who subscribe to the notion that “the law is not a shackle that enslaves but merely a tool of social engineering.”

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.

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.

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?”

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.

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?