Illegal! Court slaps KSAMC, NEPA for authorising Birdsucker development

Jovan Johnson/Senior Staff Reporter

A multimillion-dollar three-storey apartment on Birdsucker Drive in upper St Andrew was illegally approved and constructed, the Supreme Court has ruled, opening the door for demolition considerations.  

Justice Georgiana Fraser Thursday overturned the building and environmental approvals for the development, declaring that the Kingston and St Andrew Municipal Corporation (KSAMC) and the National Environment and Planning Agency (NEPA) broke the law in granting them.  

“The construction at 17 Birdsucker Drive is not supported by any legal authorisation,” read a section of the 84-page judgment which is a major victory for residents of the upscale neighbourhood who took the matter to court in 2018.  

However, the ruling throws the status of the development in doubt even as the court acknowledged that granting the orders sought by the residents could result in “substantial financial hardship” for the developers, WAMH Development Limited.  

Some $190 million spent to acquire the land and building material; deposits from purchasers, sales agreements and a loan of “substantial amount” are among the issues at stake for WAMH, whose principals are Wayne Marsh and Andrew Henry.  

The development was 99 per cent complete up to the start of the trial in February 2019.  

The judge argued, however, that for the court to exercise its discretion in considering hardship, “the party must come with clean hands”. 

Justice Fraser wasn’t convinced that WAMH, whose development is made up of 12 one-bedroom units, deserved to benefit from that consideration owing to its “dishonesty … and lack of regard for orders made by relevant authorities”.  

“The claimants have satisfied me that the permits granted by the defendants herein are ultra vires and susceptible to judicial review,” the judge said.   

Fraser said the KSAMC breached its statutory duties and failed to follow procedures outlined in the Town and Country Planning Act by, among other things, giving building approval before an environment permit was granted.  

The municipal authority also had no jurisdiction to give building approval despite several breaches of the 2017 provisional development order for Kingston and St Andrew.  

Those breaches included granting permission to WAMH to build a multifamily dwelling on a 0.38-acre property which was less than the minimum half-acre stipulated by the order.  

The KSAMC was also cited for allowing the construction of habitable rooms in violation of density requirements.  

NEPA, the administrator of the Natural Resources and Conservation Authority, exceeded its jurisdiction as it had no power to grant an environmental permit retrospectively, the judge also found.  

WAMH got planning approval in December 2017 and an environmental permit in May 2018, after the building process was “well under way”, the judgment read.  

WAMH applied for the environmental permit on May 2, 2018 after NEPA issued a warning notice and cessation order.  

“I have found that the environmental permit granted to WAMH in this case is null and void,” Fraser said.  

On June 27, 2016, the premises previous owners, M&M Jamaica Limited, received approval to build a one-storey multifamily development of 12 studio apartments.  

M&M also received an environmental permit, which was not transferrable.  

The property was transferred to WAMH on January 16, 2018, whose building application the KSAMC treated as an amendment to M&M’s.  

Today’s ruling comes more than a year after the completion of hearings in February 2019.  

“Kingstonians who have suffered from high-rise apartment buildings being constructed next to them in breach of planning laws and regulations now have a clear path to stop these developments and to hold the KSAMC accountable for having allowed them to be constructed,” said Gavin Goffe, an attorney and partner at Myers, Fletcher & Gordon, the firm which represented the 10 residents.  

The KSAMC's planning officer, Shawn Martin, had argued that the corporation followed the building approval procedure while NEPA and NRCA insisted their permits were legal. 

The developers, meanwhile, argued that  KSMAC's permission was not subjected to the Town and Country Planning Act and that there was no requirement to obtain environmental permits prior to obtaining building approval. 

During a routine check of the property in October 2018, then KSAMC acting Chief Engineering Officer Xavier Chevannes said that it was discovered that WAHM was building contrary to the approvals and permissions granted. 

A stop order was served but residents contended that work continued anyway.  

Court Orders: 

1. An order of certiorari to quash the 1st defendant's approval to construct a three-storey multifamily development consisting of twelve one-bedroom units at 17 Birdsucker Drive, Kingston 8, in the parish of Saint Andrew. 

2. An order of certiorari to quash the 2nd defendant's grant of an environmental permit to WAMH Development Limited in connection with a proposed three-storey multifamily development consisting of twelve one-bedroom units at 17 Birdsucker Drive, Kingston 8, in the parish of Saint Andrew. 

3. An order of mandamus to compel the 1st defendant to take steps to halt all construction at 17 Birdsucker Drive, Kingston 8, in the parish of Saint Andrew that is in breach of any laws, regulations or orders over which they have jurisdiction.  

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