Residents urge quick enforcement after Birdsucker Drive ruling

Ten Birdsucker Drive residents who challenged permits for an apartment complex are urging the Kingston and St Andrew Municipal Corporation to quickly implement enforcement orders upheld by the Court of Appeal over breaches of the development’s approvals.

“The residents expect that the KSAMC will now move swiftly and decisively to enforce the building laws, including demolition of units and internal walls which were built in violation of the permits," said Gavin Goffe, the lead attorney for the residents in the case against the KSAMC, the Natural Resources Conservation Authority (NRCA), and its enforcement arm, the National Environment and Planning Agency (NEPA).

Goffe, who is among the claimants, added: "Respect for residents' rights and interests and proper enforcement is all that the residents wanted and the Court has given us hope that this will now happen."

His comment follows the June 20 ruling that overturned a 2020 Supreme Court decision to invalidate the development's permits but upheld enforcement orders against WAMH Development Limited for breaches of its building approval.

The KSAMC has been ordered to enforce a stop notice it issued in October 2018, identifying unapproved changes to the development at 17 Birdsucker Drive, which was approved for a three-storey building with 12 one-bedroom units.

The court ruled that the KSAMC is under a legal obligation, not merely discretion, to take enforcement action under the Town and Country Planning Act.

“The fact that the construction is now complete does not prevent the KSAMC from taking enforcement measures,” wrote Justice Carol Edwards in the 136-page ruling.

The court found that the KSAMC and environmental regulators acted within their legal authority to issue permits to WAMH, saying the lower court judge was wrong to overturn the environmental permit and the building approval.

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 that based on the 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KSAMC stated that WAMH, whose application to approve the changes was halted pending the outcome of the case, has since withdrawn and reverted to the original approvals.

A KSAMC official said Monday that internal reviews will take place before any public comment on the appeal court's decision.

A request for comment on the outcome of the case has been sought from NEPA and the NRCA.

The court ordered the KSAMC to pay 30 per cent of the residents’ legal costs, though it rejected their bid to force the environmental regulators to meet with them before issuing permits.

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