Fri | Dec 15, 2017

Housing Ministry barred from building town houses in Cherry Gardens

Published:Friday | October 13, 2017 | 12:00 AMMcPherse Thompson
Pedestrians walk by the Supreme Court building in downtown Kingston.

The Ministry of Housing has been barred from constructing six town houses on land it owns in the upscale neighbourhood of Cherry Gardens in St Andrew.

The Court of Appeal, in a judgment written by Justice Patrick Brooks, ruled that the provisions of the Restrictive Covenants (Discharge and Modifications) Act passed in February 1960, but which the ministry suggested had lagged behind the changes in society and land usage, must still be observed.

According to the judgment handed down last Friday, attorney Camaleta Davidson, on behalf of the ministry, urged the Court of Appeal to prod the legislature to make changes to the near six-decade-old law to reflect modern realities.

Davidson's suggestion was included in submissions asking the appellate court to overturn a March 2012 ruling by the Supreme Court in which Justice Andrew Rattray denied the ministry's application to modify restrictive covenants affecting premises 2A Mark Way in Cherry Gardens.

Justice Rattray made that decision after Lancelot and Jean Raynor objected to the ministry's proposal to build six town houses on the property.

The Raynors live next door at 2 Mark Way and are among the beneficiaries of the restrictive covenants endorsed on the certificate of title for lot 2A.

According to the background outlined by Justice Brooks, the ministry acquired the title to lot 2A in March 2007. It hoped to build the town houses on the land, but several of the restrictive covenants endorsed on the registered title proved an obstacle to its plan.

Justice Brooks said that faced with those restrictions to its development plans, the ministry, "very responsibly - nothing less would be expected from such an agency of the State - before taking any steps to develop the premises, applied to have the relevant covenants modified in order to pave the way for what it wished to do. It filed its application in April 2008".

The Raynors filed their notice of objection in January 2009, asserting that they were entitled to the benefit of the restrictive covenants that are endorsed on the ministry's certificate of title.

They contended that the restrictive covenants were still relevant for protecting the character of the neighbourhood and that any development of the nature proposed by the ministry would injure their use and enjoyment of their own property.

Justice Brooks said the evidence revealed that there had been other developments of lands in Cherry Gardens. Dave Domville, in an affidavit filed in December 2009 on behalf of the ministry, identified seven properties on which multi-unit housing had been constructed.

With respect to several of those developments, Domville said the Supreme Court had authorised very similar modifications to the ones sought by the ministry. He said the ministry had secured the approval for the development at 2A from the relevant agencies, including the National Works Agency, National Environment and Planning Agency and National Water Commission.

Domville contended that the concerns of the Raynors, and other persons who had, at that time, filed objections, were unfounded.

Justice Brooks said it was the ministry's responsibility to satisfy Justice Rattray that the proposed construction of six town houses - the National Water Authority's comments suggested that eight units were being proposed - would not adversely affect the objecting parties.

But a Court of Appeal panel comprising Brooks, Justice Marva McDonald-Bishop and Justice Frank Williams said Justice Rattray's finding that the ministry had not produced the necessary proof cannot be faulted.

Justice Brooks said Domville's attempts at assuring the court that there would be no injury to the Raynors were not supported by any expert evidence.

Moreover, Justice Rattray himself had noted that Domville was not at all familiar with the area for the proposed development. He, therefore, rejected Domville's evidence in that regard.

Davidson was not reached for comment as to whether the ministry will be appealing the matter further.

Attorney Anthony Pearson represented the Raynors.

mcpherse.thompson@gleanerjm.com