NEPA, KSAC….BOTH SIDES OF THE SAME COIN

How can the Government of Jamaica establish a radio station in the midst of a residential community and yet the agencies which are supposed to have oversight responsibility for illegal land uses and zoning breaches claim to be unaware more than 3 years after the fact? That’s the case with KOOL FM which the Government of Jamaica established on Braemar Avenue in the heart of the Golden Triangle one of the oldest residential neighbourhoods in St Andrew in flagrant violation of not only the zoning laws but the restrictive covenants governing the community. Further, the National Environment and Planning Agency, NEPA, and the Kingston and St Andrew Corporation, KSAC, gave approval for the construction of a four-storey apartment complex next door to the radio station. Ironically the four-storey building (itself a breach) continues to be overshadowed by the Transmission Tower of the radio station.

This comes on the heels of loud and persistent complaints from the citizens, which the agencies in question continue to seek to frustrate, while patronizingly claiming to be desirous of a process of on-going dialogue. However, in light of the recent revelation that the Government of Jamaica had previously issued a directive to NEPA to ignore all breaches committed by other Government agencies, the delays relating to enforcement and efforts to frustrate the citizenry by both NEPA and the KSAC are now explained. Indeed, the process has been totally compromised and has opened the floodgates of corruption which has been apparently extended beyond just Government agencies to friends or other connected persons.

Will the Bruce Golding led Government of Jamaica now have the courage the commission a forensic audit of the entire approval process as impacted by NEPA and the KSAC?

Developers Stung As NEPA Rejects Applications in Droves

Obviously stung by years of criticism about their role in regularizing and facilitating developments which have breached the approvals process, the National Environment and Planning Agency (NEPA) has now sought to heighten its enforcement activity and finally adopt a zero tolerance approach to the process. However, NEPA has also given itself considerable "wiggle room" in terms of the Government’s 90-day timeline for approvals by essentially discontinuing the processing of applications which are either incomplete or have not received timely responses from other stakeholder agencies in the approvals process. These applications are returned to applicants who have the right to re-submit if they so choose.

This has led to considerable disquiet as developers and even some State Agencies are complaining that their applications are being rejected in droves even under circumstances where they are not at fault. However, they are not gaining much sympathy from the citizen’s advocates and environmentalists who contend that it is better to err on the side of caution than to facilitate an opportunistic process whereby according to Jamaican Prime Minister Bruce Golding, applications for which there has been no response from NEPA within 90-days should be deemed approved and development commenced. To clarify these issues, NEPA has issued the following statement:

“The National Environment and Planning Agency (NEPA) is committed to processing applications within the shortest possible time and have been upgrading its processes to meet and even reduce the 90 days timeline. In implementing this initiative, the Agency has adjusted the timeline within which responses are to be submitted, whether from applicant(s) and/or other Agencies of Government.

There will be strict adherence to the guidelines and checklists for all applications which are submitted to NEPA as well as the local authorities. Applicants are required to comply with these guidelines in keeping with Jamaican laws. Failure to do so will result in immediate enforcement action. Absolutely no incomplete applications will be accepted.

Submission of Applications
As a regulatory Agency, NEPA is required by law to consult with other government agencies in reviewing all applications for development projects. Given this legal stipulation, NEPA will discontinue the processing of all those applications for which outstanding comments from other government agencies have not been forthcoming after a thirty day period. Additionally, applicants must submit all supporting documentation within thirty days of making an application. Failure to make the submission within this thirty day window will also result in the discontinuation of the processing of the application. The application will then be closed and returned to the applicant. The applicant is free to resubmit the application along with the supporting documentation and the attendant application fee, to resume the applications process. NEPA will advise such applicants accordingly.

Planning Permission and Environmental Clearance
Under government regulations planning permission cannot be granted to any developer without environmental clearance. Consequently, all planning applications also awaiting a decision for an environmental application will be placed on hold until a decision is made. Clients whose applications have been put on hold for this specific reason will be informed in writing.

Developments in Breach
NEPA will discontinue the processing of applications for any developments which are in breach. This includes, but is not limited to development projects on which construction has started without the relevant approval. The processing of the application will not resume until the developer is in compliance with NEPA guidelines. The applicant must state in writing to the Authority when and how breaches will be addressed. The correction or addressing of breaches begins with the payment of an administrative fee. The length of time taken to achieve compliance will determine whether or not applicants will have to re-apply. “

See Also
Jamaica: The 90-Day Approval Process Revealed

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.”

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.

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?

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

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

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

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

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