Demolition fight
Developers, residents lock horns over court order to knock down $100m complex
Published:Sunday | February 13, 2022 | 12:09 AM
In just over a month, arguments for why an apartment complex worth more than $100 million in the Golden Triangle neighbourhood of St Andrew should not be demolished will take centre stage in the Court of Appeal.
The March 22 showdown will pit six residents, who are insisting that the construction of the town houses and apartments at 18 Upper Montrose Road violates restrictive covenants, against developer Martin Lyn and his two children, Melissa and Martyn.
Restrictive covenants are legally binding stipulations on property titles to protect property values and maintain neighbourhood aesthetics. In this case, the Lyns are arguing that the single-family dwelling character of the area has changed to enable them to build two town houses and four apartments.
In January 2020, Supreme Court Judge Judith Pusey ordered the immediate destruction of the housing units, after determining that the Lyns had violated the covenants and had breached building approvals issued by the Kingston and St Andrew Municipal Corporation (KSAMC).
Pusey also ruled, to the satisfaction of the residents, that their neighbourhood was a single-family residential area and that the Lyns failed to convince the court that the character of the area had changed to facilitate the multifamily development.
The judge excoriated the developer for continuing with construction despite three things – the application to the court in 2017 to modify the restrictions, objections filed by the residents in July 2018 and the subsequent court injunction to stop the works until the matters were decided.
PAUSE ON DEMOLITION ACTION
On March 11, 2020, the Court of Appeal granted an order for the demolition action to be paused until the case brought by Lyn against Pusey’s decisions was determined.
Now the parties are in the final stages of preparation.
The Lyns are being represented by Hylton Powell, the firm of former Solicitor General and Queen’s Counsel Michael Hylton, and his partner and senior lawyer, Kevin Powell.
DunnCox, led by Emile Leiba, is representing the residents – Sarah Hsia, her husband Marvin Gordon, Henderson Downer, Marcos Handal, Una Witter, and Brenda Francis.
The case is being keenly watched as the authorities come under pressure to enforce the laws against rogue developers with residents getting increasingly litigious, all of which could threaten hundreds of millions of dollars in investments.
The Lyns are appealing the decision to refuse their application for modification of the restrictive covenants; that the residents are entitled to the benefits from maintaining single-family residences; and the demolition order.
They claim that Pusey’s findings of fact were contrary to the evidence; that she erred in law when she stated but failed to apply the proper test for establishing a development scheme; and that she incorrectly exercised her judgment in ordering the demolition.
According to the Lyns, in ordering the demolition, the judge placed the burden on them to show that there was a reason to refuse that form of remedy sought by the residents.
They said the residents should have been put in a position to show why such an order should be granted.
Pusey failed to give sufficient regard to the long-standing use of 18 Upper Montrose Road prior to the purchase of the property in April 2017, the other multifamily or commercial usages in the vicinity, among other factors, the Lyns have argued.
ALLEGATIONS
They also claim that Pusey wrongly placed weight on the developer allegedly carrying out construction after an injunction was imposed and that the father, an architect, was a witness in a previous case involving modification of restrictive covenants and was aware of the risks of going ahead without getting the changes.
The KSAMC approved the building permit but on the condition that the restrictive covenants be addressed. However, the authorities do not enforce that aspect, which requires developers affected to seek permission from the court to change restrictions to accommodate their plans.
However, the residents are insisting that the Court of Appeal should not disturb Pusey’s ruling, especially decisions arrived at as a result of her discretionary authority.
According to the Lyns, there was no evidence that the previous owner laid out the property in lots to be covered by the restrictive covenants, and further that the geographical area of the development scheme could not be ascertained with reasonable certainty.
The residents, however, say the judge was correct to find that the criteria of a defined area to which the restrictive covenants were proved, and that the original title and the ones that followed identified the property has part of Vale Royal subdivision.
Meanwhile, they say it is erroneous for the Lyns to argue that the burden should have been on them to show why demolition should be ordered.
According to the residents, they were entitled to the protection of their property rights, especially after the judge upheld the validity of the restrictive covenants and their applicability to the Lyns’ property.
“The respondents, having established that their property rights continued to be infringed, were prima facie entitled to the grant of the injunction sought,” noted one of the submissions to the Court of Appeal.
It added: “The legal burden was on the appellants (Lyns) to dissuade the court and show that the respondents (residents) should be left instead with a remedy in damages.”
And the residents say the claim by the Lyns that the judge was “heavily influenced” by continued construction even after the injunction was granted should be dismissed as it is “without merit”.
“To contend that in the exercise of her discretion the learned judge granted the injunctive relief largely (or heavily) because of construction after the interim injunction is not only incorrect, but disregards the preponderance of evidence which the learned judge appropriately weighed of the appellants’ conduct on the particular facts of wanton, extreme and blatant case,” the residents noted.
The judge had argued that not only did the developer continue with the construction after the court injunction, but had allowed the property to become occupied.
“They ploughed on, completed their development so as, to use the jargon, to ‘steal a march’ on the objectors and now want the court to rubber-stamp their effort because of the amount of funds expended,” Justice Pusey said.