Corruption allegations cloud KSAMC over Birdsucker strata approval ‘error’

Corruption allegations have been levelled against the Kingston and St Andrew Municipal Corporation (KSAMC) after it admitted that an “administrative error” led to the approval of strata plans for 14 apartment units at a controversial Birdsucker, St Andrew, development that had permits for 12.

The admission came from Xavier Chevannes, chief engineer of the corporation, in its appeal of a December 2020 Supreme Court ruling that the KSAMC and the National Environment and Planning Agency (NEPA) broke the law in granting permits for the construction of the complex by WAMH Development Limited.

According to Chevannes’ affidavit, the KSAMC realised its “error” after reviewing documents filed on November 30, 2021 by Tony Patel, broadcast journalist and one of 10 residents in the area who successfully challenged the building and environmental permits by the authorities in the Supreme Court.

The KSAMC was now taking advice on how to fix the error, the senior official said in his affidavit dated December 15, two days before the parties made final submissions in the appeal case.

The KSAMC did not explain how the error was made and who was responsible. The approved drawings have also never been presented before the courts.

The residents have contended that KSAMC CEO Robert Hill’s signature on a document from a municipal official “appears identical to the signature giving approval to the developer’s strata plan, suggesting that he was the one who committed the purported error”.

Meanwhile, in his affidavit, Patel said Gavin Goffe, another of the residents who is also an attorney in the case, obtained a copy of the strata plan and the titles on November 27, 2021.

The plan was registered on April 15, 2019, a few months after the trial of the case in the Supreme Court, Patel said. Copies of the plan and the certificates of titles were also filed.

Patel argued that units labelled “Strata Lot 1” and “Strata Lot 2” in the basement, as noted on the plan, were the two studio apartments that Chevannes referred to in an affidavit in 2018.

LOUNGE AND GYM

He pointed out that Chevannes stated that in October 2018, following a stop order, the developer submitted an application to amend the permit with the two studio units being strata office lounge and a gym.

But the strata plan registered at the National Land Agency makes no reference to a lounge and a gym, Patel said, adding that the two units have their own titles and that both lots were sold in July 2020 for $21.5 million and $19.5 million, respectively.

The plan bears the stamp of the KSAMC’s building department with the date September 10, 2018.

According to Patel, without the KSAMC’s approval, it would not have been possible for the developer to have obtained titles for 14 units.

“Evidence and submissions in the court below denying the existence of these additional units and/or purporting that they took enforcement action to prevent these additional units from being constructed were false and misleading,” he said.

Patel also said the stamp date was “proof” that by that time, the KSAMC was aware that the developer was constructing 14 apartment units, including two studios on the basement level while maintaining that the municipality did not know of any breach of its building permit.

Chevannes countered, however, that in his affidavit of October 2018, he did indicate that breaches were observed, including that there were 14 units being constructed.

“I further indicated that after a cease-work notice was served on the developer, the developer submitted an application which included units 1 and 2 being used as a strata office, lounge and gym,” he said, noting that enforcement activities continued during and after the Supreme Court trial.

He pointed to emails WAMH sent in January and February 2019 to the KSAMC seeking updates on an application to amend the building plans for the 17 Birdsucker Drive development.

The KSAMC delayed processing that application because of the court matter and WAMH ultimately withdrew its application and reverted to the December 2017 approved drawings of 12 one-bedroom apartments, with no studio units, Chevannes said.

“At no time did the KSAMC grant planning permission or building approval for 14 apartment units,” he said.

‘SOMETHING CORRUPT HAPPENED’

WAMH’s letter of withdrawal was dated April 4, 2019 and addressed to Robert Hill, the then town clerk who is now the chief executive officer of the KSAMC.

But the residents are insisting that “obviously, something happened at KSAMC between February 18, 2019 and April 4, 2019 that caused the developer to withdraw the amended application without making any corrections to the building”.

“The inescapable inference is that something corrupt happened,” they claimed.

Goffe, who is from the firm, Myers, Fletcher & Gordon, was unsuccessful in convincing the three-member panel of appeal judges on Friday to admit Patel’s evidence.

Justice Frank Williams did not give specific reasons for why he and Justices Carol Edwards and Cresencia Brown Beckford ruled against the application, although it may come in the final decision.

However, minutes earlier, Justice Edwards wanted to know how the strata plan issue could have impacted the claim the residents brought in the Supreme Court.

“You have now brought us what you say is a smoking gun …[but] your traverse into their (KSAMC) conduct and possible corruption, and all that, seems to me to be asking this court to try a totally different case,” Justice Edwards said.

Goffe told the judge that her perception that the issues were unrelated was based upon a “misappreciation of the findings of fact and the issues in the court below”.

As he sought to further explain, Justice Edwards intervened, asking the lawyer: “Misappreciation by whom?”

“By the court (Court of Appeal), I believe, of the issues before the judge below and the evidence before the judge below and the judge’s findings,” Goffe said before being cut off again by a seemingly annoyed Justice Edwards.

“Since it is we have no time for you to school the court so that we can have a real reappreciation of the proper case below, I think you should conclude on the questions that you say you are replying on,” she said.

Goffe told her that he had finished dealing with those questions and asked if she wanted him to address her question on how the issue with the strata approvals would have impacted the case in the Supreme Court.

“No, no. Quite all right. I don’t want to misinterpret or misconstrue…,” she replied, her voice trailing off in inaudibility

In its submissions against admitting the new evidence, the KSAMC argued that while it erred, the residents had presented a “mountain of errors” and that claims that it acted corruptly were “baseless”.

“The evidence that the respondents now seek to put before this court suggests that this fresh evidence, this new fact, this new event, is a statement of the conduct of the KSAMC throughout the proceedings, is patently wrong, flawed,” said Rose Bennett-Cooper of the firm Bennett Cooper Smith that is representing the KSAMC.

“The allegations of corruption are entirely misconceived,” insisted Bennett-Cooper, who earlier pointed out that one of the residents relied on Goffe’s report that the plans the lawyer saw at the KSAMC had 12 apartments approved.

“We are confident in relying on the 10th respondent’s (Goffe) evidence, even if he is not confident in relying on the evidence of the KSAMC,” she said.

Bennett-Cooper also reminded the court that the KSAMC has the power to enforce corrections to land-based development up to 10 years after the completion of the project.

Goffe has argued that the KSAMC’s permit had 12 units but the approved drawings contained 14 units.

FAILED TO FOLLOW PROCEDURES

In her Supreme Court judgment, Justice Georgiana 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.

NEPA, the administrator of the Natural Resources and Conservation Authority (NRCA), 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. The NRCA is appealing that ruling.

The judge was also very critical of WAMH, which she ruled was “dishonest” and “blatantly disregarded the provisions of the law, exceeding the scope of the planning and building permit and hastening to complete the construction well ahead of schedule”.

“The construction at 17 Birdsucker Drive is not supported by any legal authorisation,” Justice Fraser said.

The KSAMC, NEPA and the NRCA are claiming that the judge exceeded her powers and also that she did not properly apply the relevant laws.

WAMH, whose principals are Wayne Marsh and Andrew Henry, reportedly spent approximately $190 million to acquire the land and building material. They bought the property in 2018 from M&M Jamaica Limited.

The three-storey complex, comprising 12 one-bedroom units, was 99 per cent complete up to the start of the trial in February 2019.

The Court of Appeal has reserved its judgment and it is not clear when it will be handed down.

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