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Four St Andrew homeowners have taken to court to overturn new development rules in Kingston and St Andrew, causing unrest in the local real estate industry.
The case stemmed from an application by residents for judicial review of a building permit issued by the Kingston and St Andrew Municipal Corporation (KSAMC) to Kapland Building Solutions Limited for the construction of a multi-family apartment building at 28 Sunnyfield Avenue, Havendale, St Andrew.
On June 21, the Supreme Court granted Ryan Davis, Ramona Davis, Allison Birche and Joan Russell’s application for judicial review of the license. They filed the application on July 2 and named KSAMC as the sole defendant.
Judicial review allows the courts to assess whether the procedures used by public authorities to make decisions were fair.
Residents of this mainly middle-class neighborhood claim that KSAMC did not consider their objections, as required by law, before issuing the building permit on September 6, 2023. That is why they want the court to overturn the permit and declare that under the Building Act, KSAMC should have consulted them first.
The applicants asked the court to declare that the development orders confirmed in 2023 for Kingston, St. Andrew and Pedro Island were not formally approved and should be considered “illegal, invalid and of no legal effect.”
A development order is a legal document that directs development in the area to which it applies. It enables authorities to regulate land use, for example by stipulating how many habitable rooms can be built on each plot of land. It falls under the Town and Country Planning Act (1957).
An interim development order for Kingston and St Andrew was proposed in 2017 and confirmed in 2023, replacing an order confirmed in 1966.
Residents claim that changes to the 2017 interim order were not communicated to them before they were incorporated into the confirmation rules. They want the new rules repealed, or at least the amendments.
One of the claimants, Joan Russell, pointed to an article published in this newspaper on May 12, 2024, by registered architect and conservationist Dr. Patricia Green, as supporting the claim that residents were not consulted before the changes were included in the affirmed order.
Havendale and Meadowbrook do not fall within any local planning area, according to Green in his commentary titled “Where do citizens appeal?” In the 2017 interim order, the permitted density, or the number of habitable rooms per hectare, was 75.
Under a development order confirmed in 2023, the density in Havendale and Meadowbrook would “immediately change” to 125 habitable rooms per hectare or 50 habitable rooms per acre, the experts wrote.
Residents
Not consulted
Russell, a 75-year-old retiree, claimed the change was made without consultation with residents, in breach of the Town and Country Planning Act, which requires an interim development order to be confirmed after a period of time, whether or not it is amended, to allow for objections to be raised.
“Any amendments to a confirmed development order must follow the procedures set out in section 8 of the Town and Country Planning Act, which requires gazette and consultation to take place before those amendments are confirmed, as required by the interim order, but this has not been done,” Russell claimed.
Regarding Kaplan’s proposed development, Russell said she and other residents filed their objections with KSAMC on April 20, 2023, days after they said the developer issued its notice of intent during the permit application process.
According to an email sent by KSAMC officials on April 24, 2023, these objections have been acknowledged.
“This objection will not automatically prevent the approval of the building consent. However, your grounds of objection will be assessed against the proposal and will be considered in the final decision,” the email, shown in the residents’ court documents, reads.
But Russell said their objections were “ignored” because KSAMC did not hold a hearing with residents before granting Kaplan a permit.
Three residents named in the lawsuit were among the objectors.
Carl Palmer, one of the principals of Kaplan, declined to comment, noting that the matter was pending before the courts. Similarly, KSAMC said it would not comment, noting that the matter was pending before the courts.
It is the latest development-related case to result in further scrutiny of the state’s regulatory system for building and planning permit approvals.
In recent years, courts have overturned building permits following outcry from residents of middle- and upper-income housing estates and harshly criticized parishes and planning authorities for failing to follow the law.
The situation is even more acute in the capital’s popular communities of Kingston and St. Andrew, where residents of single-family homes feel threatened by growing demand for housing and multi-family high-rises.
property
Residents in the Havendale case claimed their property rights were being violated and opposed Kaplan’s court application to modify restrictive covenants, or property community rules, to allow multifamily development.
Jamaica Developers Association president Deighton Wood said the case should be watched closely as it will have a significant impact on the industry as a whole.
“Developers welcome the approval of these guidelines,” said Wood of the association representing property developers. “We don’t want this to become a no-man’s land again.”
He added: “The problem and the confusion is not with the development order but with the approval of the covenant modification and the building approval granted before the covenant modification.”
He said hundreds of millions of dollars in real estate investment in the Kingston and St Andrew areas could be affected by the case.
Meanwhile, the residents were praised by Dr. Carol Archer, Professor of Urban Planning and Public Policy at the University of Technology of Jamaica and Special Adviser to the United Nations Human Settlements Programme.
“I’m excited about this because when we talk about sustainable development, when we talk about safe and unique cities, these are hallmarks of achieving the principles of the Sustainable Development Goals,” Archer said.
She said the Havendale case was the first to directly challenge the new development order, to her knowledge.
“The justice system is there for all of us. I felt my rights were violated, so I took them to court. The developers produced evidence.”
Main economic drivers
Real estate development is a major economic driver for the island. In its latest Jamaica Economic and Social Survey, released last week, the Planning Institute of Jamaica reported that in 2023, municipal corporations received an estimated value of approximately $250 billion in building/planning applications. This is a 6% decrease compared to 2022. The report said the value of approved applications was estimated at $166.5 billion, while those being processed were estimated at $171.1 billion.
“The valuation estimates the contribution of building construction and zoning to the economic or investment status of a parish,” it said.
Building and planning applications to municipal corporations fell by 12.3 per cent to 5,213, covering nine of the 10 development categories, including residential, commercial, industrial and others. The majority of applications (87.5 per cent) were for residential developments, followed by commercial developments at 6.4 per cent. The City of St Catherine received the most applications, with 781 applications, followed by the Kingston and St Andrew Municipal Corporation, which received 734 applications.
St. Catherine received the most residential applications, accounting for 15.4% of such applications, but this was a 7.3% decrease compared to 2022. KSAMC received the largest share of commercial applications (18.3%).
The ESSJ said most applications (78.5 per cent) were approved within 90 days, adding that municipal corporations with a large number of applications, such as KSAMC and St Catherine, except Portmore, had approval rates within 90 days that were lower than the national average.
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