Editorial | Halt Wild West-style developments

The glaring failure of Jamaica’s planning regulators to embrace their responsibilities to communities makes it important that Pearnel Charles Jr, the new minister for housing and urban renewal, reminds them to whom they owe their primary obligation – regular taxpayers.

Minister Charles must, at the same time, follow up by taking to Parliament legislation requiring developers to first get courts, where necessary, to amend restrictive covenants before they can begin construction.

The need for ministerial intervention has become increasingly apparent in the face of a spate of contentious issues of developments proceeding without these amendments, but its necessity is now clearer given the abject abandonment of responsibility – and of ordinary people – by the Kingston and St Andrew Municipal Corporation (KSAMC) and the National Environment and Planning Agency (NEPA) in remarks last week to this newspaper.

The two institutions are critical in approving real estate developments – the KSAMC in its role as the local planning authority for the capital, and NEPA as the coordinating agency for anything to do with the environment relating to development projects. As such, they were involved in the approval of the multistorey, multifamily building at 9 Evans Avenue, St Andrew, on whose construction the KSAMC last week placed a temporary stop order “because the developer unilaterally modified the unit layout”.

These things sometimes happen and developers amend the error. In this case, though, the KSAMC’s directive came after questions by The Sunday Gleaner about a wider range of concerns of the residents of the Acadia district of St Andrew, a community primarily of low-rise bungalows or large lots. Among the cause of disquiet from the residents is that the development will change the character of their neighbourhood.

A restrictive covenant, in its narrowest legal sense, is an agreement between the seller and purchaser of property, recited on the title, that binds the purchaser, and future owners, to maintain the land to a specified use, including, sometimes, what kind of buildings may be placed on it. It’s common in subdivisions where homeowners are keen to preserve the character of their neighbourhood.

Such covenants may be changed by either the Town and Country Planning Authority – which sets the standards for local planning authorities like the KSAMC – or some other person with interest in the matter, convincing a judge “that the character of the property or the neighbourhood, or other circumstances of the case which the judge may think material, that the restriction ought to be deemed obsolete”. This may include the judge’s belief that continuing the covenant “would impede the reasonable use of the land for public or private purposes without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of such restriction”.

However, Section 3(d) of the Restrictive Covenants (Discharge and Modification) Act makes it clear that the court must be satisfied that “the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction”.

This, when it involves whole communities, or significant portions thereof, is not, in this newspaper’s view, purely a private matter to be left solely to civil courts. Public policy issues are also at stake.

Indeed, it is in the interest of the State to ensure that there are orderly, well-managed communities, allowing for a congruence of public and private interests. It is part of the context of Jamaica’s adherence to the United Nations Sustainable Development Goals, including the creation of sustainable cities and communities. Significantly, the Town and Country Planning Authority is among the parties in the law who may have an interest in changing restrictive covenants. That underlines the public policy interests in the matter.

EXPENSIVE BATTLE

It would be unfathomable to this newspaper that the Government would embark on any development in an area of restrictive covenant without first petitioning the court to have the restriction amended, preferably in the context of an updated development order.

Against this backdrop, we are aghast at the seemingly blasé attitude of NEPA and the KSAMC, and presumably the other municipal bodies in their roles as local planning authorities, towards whether planning applicants clear the hurdle of restrictive covenants before beginning construction.

“A restrictive covenant being a right vis-à-vis private parties is not a planning criterion,” the KSAMC told this newspaper, with respect to the fact that the 9 Evans Avenue development is well into its construction without that issue being resolved. The municipality claims that to withhold development approval would open the agency to legal challengers.

NEPA has the same argument of the issue being “a contractual matter between neighbours”. Which fails to address public policy concerns and the fact that often the people who are affected can’t afford to wage expensive court battles against powerful developers. If only from the public policy perspective, the Town and Country Planning Authority and NEPA have an obligation to challenge in court those projects on which construction begin before covenant issues are addressed.

This newspaper understands that changing circumstances, including economics and demographics, will mean that how communities are structured will sometimes require change. But it can’t be on the basis of a Wild West, first-to-the-draw approach. Mr Charles must see to that.