Overruled

Three state agencies have partially or fully won their appeal of a Supreme Court ruling that invalidated approvals for a $190-million apartment complex in St Andrew, with the court upholding enforcement orders for permit breaches.

The Court of Appeal, in a long-awaited judgment delivered on Friday, unanimously ruled that the lower court was wrong to quash the environmental permit granted by the Natural Resources Conservation Authority (NRCA) through its administrative arm, the National Environment and Planning Agency (NEPA).

The appellate judges also held that the building approval issued by the Kingston and St Andrew Municipal Corporation (KSAMC) to private developer WAMH Development Limited was valid. However, they upheld enforcement orders against the developer, albeit narrowing the terms imposed by Supreme Court Judge Georgiana Fraser in 2020.

The KSAMC has been ordered to “enforce compliance” with a stop notice it served on WAMH in October 2018.

The Court of Appeal ordered the KSAMC to pay 30 per cent of the residents’ legal fees. The agencies are to pay their own costs.

The genesis of the legal battle dates back to WAMH’s construction of an apartment complex at 17 Birdsucker Drive.

Ten residents and owners of properties near the development initiated judicial review proceedings in the Supreme Court in July 2018, alleging various breaches of applicable laws by the planning and environmental authorities. The development was 99 per cent complete by February 2019.

RESIDENTS’ CONCERNS

The residents also raised concerns spanning potential breaches of restrictive covenants, impacts on sewage systems, density issues, and non-compliance with legal requirements for entrances.

WAMH acquired the property in January 2018 from M & M Jamaica Limited, which had previously obtained an environmental permit and planning permission in 2016 for a two-storey residential development.

WAMH subsequently sought amended planning and building permission from the KSAMC for a three-storey building with 12 one-bedroom units, which was granted in December 2017.

Concerns escalated, particularly regarding whether M & M’s enforcement permit could be transferred to WAMH, and WAMH’s ongoing construction without a new one. NEPA issued a ‘Site Warning Notice’ and later a cessation order in May 2018, requiring WAMH to cease construction and apply for its own environmental permit.

WAMH’s applications for an environmental permit and wastewater treatment plant licences were approved by the NRCA board on May 15, 2018, and the licences granted on May 29, 2018.

In December 2020, the Supreme Court largely ruled in favour of the residents, granting orders invalidating the KSAMC’s building approval and NEPA’s environmental permit.

An order was also issued compelling the KSAMC “to take steps to halt all construction … that is in breach of any laws, regulations or orders over which they have jurisdiction”.

The state agencies and the KSAMC appealed, challenging several key findings of the lower court. These included whether the residents had legal standing to bring the lawsuit, whether the building approval was granted in breach of the NRCA Act and the Town and Country Planning Act due to the timing of the permits, and whether the approvals were illegal due to breaches of the 2017 Provisional Development Order.

The residents also appealed the decision not to grant orders against NEPA, arguing that they had a legitimate expectation to meet with the agency before the permit was granted.

The appeal was heard by Justices Frank Williams, Carol Edwards and Cresencia Brown Beckford in November and December 2021. The court apologised for the delay in handing down the 136-page decision, saying it was “long overdue”. It also cited the “length and complexity of the issues”, which it said had been “painstakingly examined”.

On the preliminary issue of the residents’ standing, the Court of Appeal affirmed the judge’s finding that the residents had “sufficient interest” to bring the claim, based on their proximity to the development and the potential material changes to their properties and community.

A central point of contention was the timing of the permits. The Supreme Court had ruled that the KSAMC acted outside its legal powers by granting building and planning approval before the environmental permit was issued to WAMH, calling it a “matter of substance and not merely convenience”.

It also found that WAMH’s development was at an advanced stage when the permit application was submitted, and the NRCA Act lacked provisions to permit the granting of an environmental permit after construction had started.

However, the Court of Appeal disagreed and reversed the finding.

“The ... finding that the NRCA and NEPA could not grant an environmental permit after the planning permit was wrong, as there was nothing in the NRCA [Act] to prevent them from doing so,” said Edwards, who wrote the opinion.

She said Section 9(3) of the NRCA Act, which addresses applying for a permit before construction begins, is “directory as to the time at which the permit must be applied for…”. She likened the situation to a motorist who can be prosecuted for driving without a licence but may still be allowed to comply with the law afterwards.

“Can we then say, because the car was first driven without these legal requirements, the situation cannot be remedied, and the individual in breach brought into compliance? I think not.”

COURT DISAGREED WITH FINDING

Regarding the 2017 Provisional Development Order, the Court of Appeal disagreed with the finding that the KSAMC acted unreasonably in granting the building permit without referring WAMH’s application to the Town and Country Planning Authority.

The Supreme Court judge fell into “serious error” by relying on the provisional order to declare breaches, rather than the confirmed 1966 order, which is “the only order recognised by the relevant legislation as the development order”. She said there was no evidence of a breach of that confirmed order, which was applicable at the time. A new one was confirmed in 2023.

“The [residents] failed to place before the learned judge any evidence which pointed to the KSAMC making a decision which it was not lawfully entitled to make either on the grounds of illegality, procedural impropriety, irrationality or unreasonableness,” she concluded, adding that their attorney, Gavin Goffe, also conceded that there was no breach of the 1966 order.

The KSAMC’s attorney, Rose Bennett Cooper, conceded that WAMH’s plan regarding habitable rooms did exceed the requirements in the 2017 Provisional Order, but she argued that that order did not take precedence over the confirmed order.

The Court of Appeal also said the judge’s finding that there was no evidence of a KSAMC inspection was “against the weight of the evidence”.

The top court also pushed back against the lower court’s criticism of WAMH’s move to quickly complete construction despite residents’ objections, a view that the judge used to claim Wayne Marsh, one of WAMH’s principals, did not come to court with ‘clean hands’.

Edwards said she was not sure the assessment by Fraser, who is now an acting appeal court judge, was “entirely fair” to Marsh, noting that WAMH held valid permits from authorised state agencies and faced a time crunch based on the expiration of one of the permits.

“There was no legal or moral obligation on WAMH to defer construction because the respondents were raising objections to the various entities, in circumstances where those agencies had placed no stop order on the construction,” Edwards said.

Edwards also dismissed the residents’ claim that two-bedroom units had been built as “speculative” and further, that neither the judge nor the residents visited the site.

ENFORCEMENT ACTION

On the matter of enforcement action, the Court of Appeal said that by the time of the trial, the KSAMC was aware that WAMH had breached its building permit, which triggered a legal duty, not a discretion, to take enforcement action.

“The fact that the construction is now complete does not prevent the KSAMC from taking enforcement measures under Section 23 of the TCPA [Town and Country Planning Act],” Edwards said, noting that the issue of whether too much time may have passed to take such action was not part of the appeal.

The October 2018 enforcement notice listed several changes that violated the permit, including the conversion of two studio units and two water tanks in the basement level into two one-bedroom units.

The appeal court said, based on basement changes, WAMH made two additional one–bedroom units above the 12 for which it had permission. The KSAMC stated that WAMH, whose application to approve the changes was halted pending the outcome of the case, has since withdrawn and reverted to the original approvals.

The residents lost their counter-appeal, as the appeal court agreed with the Supreme Court that they had no legitimate expectation to be consulted by NRCA. It also noted that their objections were considered by the NRCA and “neither NEPA nor the NRCA had any obligation to consult with citizens before granting a permit, therefore, they were under no obligation to consult or meet,” said Edwards, adding that a decision by then NEPA CEO Peter Knight to meet with them cannot bind the NRCA board.

Attorney Sidia Smith also represented the KSAMC. Attorney Goffe was also one of the 10 residents in the case.

The NRCA and NEPA were represented by Faith Hall and Jevaughnia Clarke, from the Attorney General’s Chambers.

jovan.johnson@gleanerjm.com

 

(EDITOR'S NOTE: A previous version of this article stated that the judgment cleared the way for sales of units in the development. That was not accurate. The units were sold out before the judgment was handed down.