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

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.

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).