The construction of a $450-million apartment complex in Chancery Hall, St Andrew, has been halted on the orders of a Supreme Court judge who has given a first-round victory to residents who want regulatory approval permits overturned.
Justice Kirk Anderson issued the order on July 29 when he granted leave to three residents to apply for judicial review to quash permits granted by the Kingston and St Andrew Municipal Corporation (KSAMC) and the Natural Resources Conservation Authority (NRCA) to VASS Properties and Logistics Limited.
The judge ruled that all environmental, planning, and building permits granted to VASS be stayed with immediate effect. He also ordered that within 14 days of his decision, all construction work on the multifamily development was to cease.
The first hearing of the claim for judicial review is set for February 3, 2023.
While lamenting the financial losses he is projected to incur over the delayed project, which had a 15-month turnaround, Andrew Henry says he is not bitter towards the residents.
“They’re my neighbours. I hold them no grudge because they are doing something that they believe is right for them,” the VASS director said.
“The Government – not only this one, but previous governments – needs to make this thing final. Developers would know what to do,” he added, referring to the 2017 Provisional Development Order for Kingston and St Andrew and Pedro Cays.
That order proposes guidelines for land use, but it has not legally replaced the 1966 order. Courts, however, have found the provisional order persuasive.
“It’s a governance problem. Because if the minister signs it, then we wouldn’t have these squabbles,” argued Henry.
Prime Minister Andrew Holness told Parliament in March that he had asked the various agencies working on the order to ensure that it addresses industry concerns “so it can be finalised and confirmed by midyear”.
Henry said the order to cease construction work will take effect on August 15.
The residents are being represented by attorney-at-law Gavin Goffe of Myers, Fletcher & Gordon.
Justice Anderson said good governance would demand that at the very least, the Town and Country Planning Authority should explain why the 2017 provisional development order has not been confirmed.
The judge also said it appeared that the KSAMC has not been following the rulings given by the Supreme Court that the 2017 order is to be considered in approving developments.
He said he hoped that the KSAMC would not disregard the rulings unless, or until, they have been set aside.
VASS got permits to build a multifamily complex consisting of 12 units – comprising eight one-bedroom town houses and four studio apartments.
The NRCA granted the environmental permit on November 16, 2021, and the KSAMC green-lighted the building and planning applications on December 15, 2021.
However, residents Sonia Smith, Donovan McKenzie, and Jennifer Williams-Livingstone are contending that those decisions are irrational and illegal.
They are arguing that the public bodies failed to give due consideration to the Town and Country Planning (Kingston and St Andrew and the Pedro Cays) Provisional Development Order, which prohibits multifamily developments on plots smaller than one acre.
They are also claiming that the proposed development will exceed the maximum density (habitable rooms per acre) under the Provisional Development Order of 2017 by more than 100 per cent.
Although not final, the provisional development order allows for 30 habitable rooms per acre. The Chancery Close property is 2,518 square metres (0.62 acres).
One of the grounds is that the KSMAC acted illegally and in breach of the Town and Country Planning Authority Act by failing to refer to the planning authority the application which does not conform to the developmental order for the area.
The residents are also contending that the NRCA is tainted by bias or a conflict of interest as its deputy chairman is also the developer’s architect.
The applicants say they are directly affected by the agencies’ decisions.
In his affidavit, KSAMC City Engineer Xavier Chevannes denied the residents’ assertion that the 2017 provisional order was relevant to the assessment of VASS’s application.
He said the approval was granted in accordance with all relevant and applicable building laws and regulations.
Chevannes noted that the application was received on August 20, 2021, and that checks by officials revealed that a notice of the same date advising of the developer’s intention was posted on a shipping container at the proposed location.
Chevannes confirmed receiving a letter from residents in September 2021 outlining concerns about the development, the density issues, and the impact for the character of their community.
Up to April 28, 2022, one of the three blocks was under construction and had reached ground level, according to the chief engineer.
The KSAMC’s director of planning, Andrine McLaren, said the KSAMC consulted with the Jamaica Fire Brigade and the NRCA before granting approval for the proposed development.
The residents’ lawyer said Local Government Minister Desmond McKenzie, the Town and Country Planning Authority, and Mayor of Kingston Delroy Williams “must explain why so many permits for apartment buildings are being issued in circumstances where the regulations, the residents, and court rulings are all being ignored”.
KSAMC CEO Robert Hill declined to comment, noting that the matter is still before the courts.
The two names on VASS’s NRCA application were siblings Shauntelle Henry and Stephon Henry, two of four directors of the family company. Their father, Andrew, and another child, Vanessa, are the other two directors.
All four are the listed shareholders of the company with its registered office at First Street in Whitfield Town, Kingston.
The Chancery Close case is the most recent development issue reaching the courts, which have expressed frustration with how public bodies, including the KSAMC and NRCA, have been carrying out their duties.
A series of rulings over the last year prompted the Government to announce a review of policies involved in the approval of commercial and housing developments.