Patricia Green | Are residential developments a nine-headed Hydra?

In Greek mythology, Hydra was a gigantic, nine-headed, water-serpent monster with one of these heads being immortal. Herakles [Hercules], the most legendary hero, was sent to destroy Hydra. When he decapitated one head, two more sprang up. Hence, he enlisted the help of his nephew, Iolaus. They cauterised the wounds to prevent any regeneration of the heads then buried the immortal head under a huge rock. Interestingly, the Hydra victory was declared unlawful because it was alleged that Herakles won it with assistance.

On January 31, 2020, The Gleaner reported ‘Judge orders Golden Triangle town houses demolished,’ where town houses and apartments constructed at a cost of more than $100 million in the upscale Golden Triangle area of St Andrew must be immediately demolished. In 2020, the court recognised, first, that the developer proceeded to complete construction without the requisite covenant modification to subdivide the property from more than one residence into multifamily dwellings. Secondly, that the developer had compromised the minimum distance that must be between the dwelling and boundaries and the road.

On April 2, The Gleaner had a story titled, ‘$100m Golden Triangle developer escapes “rude awakening” after demolition order overturned.’ This judicial ruling was in favour of the land developer keeping the development.

Of interest is the opening statement of this latest Supreme Court Civil Appeal, taken March 22 and 31, that seems to have admonished the land developer because it reads: “... the case that has given rise to this appeal is an example of the disturbing and unacceptable feature of the construction industry in Jamaica, where land developers commence construction on lands, encumbered by restrictive covenants, before obtaining an order from the court for modification or discharge of the covenants, as they are obliged to do ...”.

This judicial statement now begs the questions if there are more ‘disturbing and unacceptable feature(s) of the construction industry in Jamaica’. What else is being ignored by land developers before they commence construction? A developer may be someone from afar or the neighbour next door.

LEGAL FRAMEWORKS

The construction-development industry is governed by a set of legal frameworks with policy guidelines for operational procedures. Some of these regulations include the 1958 Town and Country Planning Act (TCPA); the 1960 Restrictive Covenants (Discharge and Modification) Act; the 1996 Natural Resource and Conservation Authority (NRCA) Permits and Licences Regulation; the 2017 National Environment and Planning Agency (NEPA) Provisional Development Order (PDO) for Kingston, St Andrew, and the Pedro Cays, noting that although the prime minister announced on March 16 that the PDO is confirmed, the details of this are still to be made public; and the 2018 Building Act.

Like those in the Golden Triangle neighbourhood, other citizens have sought legal redress. The court has issued various judicial rulings. However, it seems that other disturbing and unacceptable features persist across neighbourhoods.

Citizens have been expressing their concerns in the Kingston and St Andrew Area (KSA) to the responsible authorities. These include the Kingston and St Andrew Municipal Corporation (KSAMC) and NEPA, which seem unable to redress the issues after meetings with and correspondence to these entities. Additionally, citizens have made appeals and representations in Parliament through its Infrastructure Committee. It has become evident that as soon as one issue has been identified and articulated in a neighbourhood, others appear to be multiplying without relief, bringing additional burdens.

COMMON CONCERNS

What are some common concerns manifesting as snake heads in land development across neighbourhoods?

Professional Design Teams: Some developments over 300 square metres are being designed without a professional team. The Building Act, in conjunction with the Jamaica Bureau of Standards, stipulates this requirement, yet it persists unabated.

Setbacks: All developments have mandatory setback requirements stipulated by the NEPA and illustrated explicitly inside the PDO. Citizens are now residing with developments encroaching on their boundaries. In some cases, fences with shared ownership are incorporated into development features. A boundary breach manifests at setting-out and/or during construction, yet it persists unabated.

Development Outline Approval: All land-development projects above 300 square metres should be submitted to the local authority such as the KSAMC. It then is obliged to seek comments from regulatory entities such as the NEPA, the National Works Agency, the National Water Commission, and the Ministry of Health. On receipt of these responses, the KSAMC should issue an outline approval with comments to the land developer. Attached to this process should be an application tracking number. Comments and design drawings should all be uploaded so that citizens may follow the development-approval process on the governmental AMANDA system. This number generally is undisclosed to citizens, yet it persists unabated.

Building Approval: The Municipal Corporations such as the KSAMC under the Building Act should only issue a ‘building approval’ versus a ‘development approval’. When municipalities issue development approvals outside of guidelines from the ‘Development Outline Approval’ process, these have the potential to become ad hoc. The use of Clause 11 of the colonial TCPA appears questionable when it states ‘local planning authority’ that represented ‘Jamaica’ versus ‘UK’ instead of the contemporary municipal corporations, yet it persists unabated.

NRCA Permit: Inside neighbourhoods with the dual development approval systems taking place, there also seems to be a dual environmental permit system for guidelines on sewerage, etc. The NRCA falls under the authority of the NEPA, yet both issue separate tracking numbers for the same land development. If the NRCA permit is for a KSAMC development approval, then this seems to be monitored by the KSAMC outside any consultative process, yet it persists unabated.

Access to Information (ATI): Under the Building Act, citizens are to be updated on all land developments in their neighbourhoods. This should include submitted development drawings that should have been uploaded to AMANDA. Instead, citizens making inquiry for development drawings are told by the KSAMC, in contravention, to use the ATI Act, yet it persists unabated.

Density and Height: The NEPA seems to suggest that they evaluate land development in accordance with the 2017 PDO. On the other hand, the KSAMC has publicly announced that it operates outside of this because that is provisional. Instead, it uses the discretionary Town and Country Planning (Kingston) Development Order 1966. Citizens are befuddled over density and height approval within their neighbourhoods, making the land-development process appear confusing ...yet it persists unabated.

Development Dust, Noise, Sidewalks: Conditions of building approval stipulate operational procedures to protect neighbourhoods from nuisances such as dust, noise, hampered vehicle and pedestrian movement on sidewalks and roadways, extended working hours, etc. Operational information is often hidden from citizens, yet it persist unabated.

Nine: What would this ‘head’ be? Could it be the ‘immortal’? Would it persist unabated?

- Patricia Green, PhD, a registered architect and conservationist, is an independent scholar and advocate for the built and natural environment. Send feedback to patgreen2008@gmail.com.