KSAMC clamps down on popular gym, restaurant

A gym and restaurant at 7 Hillcrest Avenue in St Andrew are to be closed by July 31 in a case of illegal development brought by the Kingston and St Andrew Municipal Corporation (KSAMC) against the operators and property owner.

It is the latest court matter initiated by the KSAMC, which has been battered by widespread criticisms over its questionable enforcement of planning and building laws across the Corporate Area.

The KSAMC applied to the Supreme Court on March 18 for an injunction to halt the alleged illegal activities, with businessman and property owner Peter Azar and his two tenants, Dwight Stewart and Patrice White, named as defendants.

The KSAMC said it gave no permission for the operation of the “Our Place Restaurant, Lounge and Jerk Centre”, car wash and the Dynamic Lifestyle gym on the land and that the activities were “unlawful” and “in breach” of the Planning Act and the Town and Country Planning (Kingston) Development Order.

But a court battle may have been averted as during a hearing last Thursday, Azar, Stewart and White “gave undertakings to the court that the current unauthorised activities which are in contravention of the Town & Country Planning Act will/shall cease”, the KSAMC said in a statement to The Sunday Gleaner.

CLOSURE DATES

The operations of the gym must be ceased by May 31 and the restaurant closed by July 31.

“The KSAMC’s inspectors will also work to ensure that this order is complied with,” said Robert Hill, the municipality’s chief executive officer.

The two dates reflect the times when the leases to Stewart and White will expire, explained Azar, who insisted that he was just the property owner and was not involved in the unauthorised business operations.

His attorney, Conrad George, argued that the KSAMC would have had difficulties arguing for an injunction against his client because he was not involved in the alleged activities on the property and that the complaint was really against Stewart and White.

There is no attorney on record for the two tenants and, according to George, they had no representative at the court hearing.

“So, in the absence of the two respondents, we were able to agree that we are doing what we can and everything that is possible for the other two respondents to leave when their leases terminate and they’ve agreed to do so, in any event,” said George, a partner in the firm Hart Muirhead Fatta.

While saying he did not know whether Azar was aware of the intentions of the tenants when he leased the property, George said that bit of detail was “not relevant”, before asking “why is there so much interest in this? I mean, it’s a non-case as far as I can see”.

He was informed of the recent court rulings and increasing challenges brought by residents against developments, and the public pressure on local authorities like the KSAMC to enforce the country’s laws.

“I’m not speaking as a lawyer, here, I’m speaking merely as a private citizen,” said the senior attorney responding. “I have to say that I am amazed that people are now finally getting interested in breaches of planning regulations, when, for the last 40 years, planning regulations have been flouted left, right and centre, and nobody seems to have paid any mind.”

White said on Saturday that she was unaware of the case and needed to speak with her landlord. There was no update up to press time.

Stewart, meanwhile, said he could not speak on the matter as he was at a funeral.

In March, during the hearing of an appeal against an order for the demolition of an apartment complex at 18 Upper Montrose Road, St Andrew, then Acting Court of Appeal President Justice Marva McDonald-Bishop told the appellants that the courts will have to take a “serious position” on a “notorious” behaviour of some developers.

“I have a genuine concern. Why is it that this practice has developed to a point where it has crystallised into a serious custom in Jamaica?” said the judge of the habit of developers to start and even complete developments before getting court approval to change restrictive covenants.

Restrictive covenants are legally binding stipulations on property titles to protect property values and maintain neighbourhood aesthetics. A stipulation may be that only single-dwelling houses can be built in an area.

SERIOUS POSITION

“This is happening right across the country. So, there comes a time the courts will have to take a serious position on it. Because you’re talking about deterrence, not only personal, but general,” she said, addressing Queen’s Counsel Michael Hylton, who was arguing on behalf of Martyn Lyn and his two children, Melissa and Martyn, the family battling to save their $100-million property from demolition.

Hylton said lawyers have to take some responsibility for the practice.

“My profession must bear some of the blame. … Regardless of the outcome of this appeal, this case has been a shock to many people’s system and it would not surprise me if that practice changes,” he said.

McDonald-Bishop responded: “Yes, and the court must look at it seriously and the legal profession must carry out its responsibility. But sometimes they (developers) reach the lawyers after. … The court has to take judicial notice of certain things that’s so notorious.”

In 2020, the Supreme Court denied a request to modify the restrictive covenants and also ruled that the apartment complex was in breach of building permits.

The Lyns’ appeal, premised on the view that the judge incorrectly exercised her discretion in ordering the demolition and that she failed to apply the proper test for establishing a development scheme, was heard on March 22. The judges reserved their decision.

In the Hillcrest case, the KSAMC said its investigation was triggered by a complaint in November 2020 about a gym on the property.

In an affidavit, Director of Planning Andrine McLaren said the property is located in an area for residential use with Hillcrest Avenue developing into a mixed-use region that included residential, institutional, light commercial and office use.

She said although there have been some changes, persons who want to use the land for things for which it was not zoned must apply for planning permission and none of that was done for the businesses run by Azar’s tenants.

At least two restaurants, a financial institution, and an embassy are located on Hillcrest Avenue.

After receiving the complaint, the KSAMC conducted two inspections, and on the second visit, a planning officer observed a fitness/martial arts class in operation. Nothing was seen on the first visit.

A second complaint was submitted in February 2021, this time about the operation of a car wash and jerk centre on the property.

An inspection revealed that the property consisted of a single-storey building that has been modified to accommodate a gym and two smaller structures at the back, one of which serves as a kitchen and the other as a storage. There is also a gazebo and open-dining area.

The KSAMC said the gym was named Dynamic Lifestyle Gym and operated by Patrice White, while the restaurant, Our Place, is run by Dwight Stewart.

Stewart was reportedly advised by the KSAMC inspector to apply to the municipality for a change of use of the land from residential purposes to commercial activities.

McLaren said she wrote to the tenants and Azar to advise them that the bar and gym were being operated in contravention of the Planning Act and that they should “cease the unauthorised use/development on the land” and that if they failed to do so, an enforcement notice would be served.

COMPLAINTS

Residents also wrote the KSAMC indicating their unwillingness to accommodate the activities in the area. They also complained about the smell of food and smoke from the restaurant and noise from the car wash equipment and patrons.

McLaren said that she sent follow-up letters to the defendants on April 13, 2021 and later received a letter dated April 15, 2021 from Stewart, who advised that he intended to apply for a change of use and requested an extension of time to June 30, 2021 for the activities to cease. The extension was granted.

In the letter, a copy of which was seen by The Sunday Gleaner, Stewart said he was “oblivious” that there was a breach “since this said premises had been operating for years as a bar and restaurant”.

“I most graciously ask for your leniency in continuance of our operation as we have already invested so much in the property during this challenging economic period,” Stewart said.

However, the KSAMC claimed that neither Stewart nor White applied for permission and that it continued to receive complaints from residents of Hillcrest Avenue and Clieveden Avenue about the activities.

In December 2021, McLaren said she conducted an inspection and found that the restaurant was still in operation. The gym has remained in use.

According to the senior planning official, despite several letters written to them, the defendants “failed, neglected or refused to cease the carrying out of unauthorised activities on the land”.

McLaren said that before the claim was filed in court, she searched the databases storing applications for planning permission and found only one enquiry that related to business process outsourcing offices.

There was no record of an application for permission in relation to the current activities on the property, the municipality said.

The KSAMC said on February 16, 2022, a sign was observed being erected at the front of the premises advertising the restaurant Our Place, for which no permission was given. A cease work notice was subsequently issued.

“In light of the defendants’, their agents’ or servants’ wanton disregard of the warning letters served on them in respect of the unauthorised development on the land, the claimant considers it necessary and/or expedient to apply to this honourable court for an injunction to restrain the breach of the Planning Act,” McLaren said in her affidavit.

If the court is satisfied that the terms of the settlement were met when the matter comes up again in October 2022, the KSAMC is likely to indicate that it has no interest in pursuing the case.

jovan.johnson@gleanerjm.com