In-limbo $450m housing complex gets green light

Nearly four months after a court halted the construction of his $450-million apartment complex, developer Andrew Henry is breathing a sigh of relief after receiving the green light to resume work at the Chancery Hall, St Andrew property.

However, he is not yet entirely out of the woods as further court challenge from residents looms.

Henry, though, has brushed aside the likely legal fights and is looking to press ahead with the development, adding that the setback resulted in losses in the region of $50 million.

On July 29, a Supreme Court judge ordered a halt to construction after giving three residents permission to apply for judicial review in a bid to quash permits granted by the Kingston and St Andrew Municipal Corporation (KSAMC) and the Natural Resources Conservation Authority (NRCA).

However, the cease work order was lifted this month after the high court accepted that the residents had failed to file the relevant documents within the stipulated time.

Henry, a director at VASS Properties and Logistics Limited, which is responsible for the development, said some work resumed two weeks ago.

He told The Gleaner that the delay forced a cancellation of the processing of far-advanced loan applications, noting that he will now have to restart the process, which will take some time.

The developer lamented that interest rates have jumped from 8.5 to between 11 and 12. 5 per cent and the cost of materials has also skyrocketed.

Additionally, Henry said that he has not been able to rehire all of the 50 workers who were displaced because of the court order.

“The only way we can recover is to raise the price of the units if we can, and that is doubtful, bearing in mind our competitors, so we are now trying to figure out how to cut costs,” he said.

In the judgment, which was handed down on December 2, Henry said: “The stay has had serious psychological effects on the directors of VASS, who have been adversely affected by the cessation of construction and the ensuing financial losses.”

Residents Sonia Smith, Donovan McKenzie, and Jennifer Williams-Livingstone had challenged the state entities’ approval for the multifamily complex consisting of 12 units – eight one-bedroom town houses and four studio apartments.

The residents contended that those decisions were irrational and illegal.

They argued 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 also claimed 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.

Consequently, they sought permission to apply for leave for judicial review. The judge, who gave permission on July 29, said they had 14 days within which to make the application.

They filed on August 15.

But in September, Henry filed a notice of application asking the court to declare that the leave to apply for judicial review of NRCA and KSAMC’s permits as well as the order staying the NRCA’s permit and the cease work order all lapsed after the residents failed to meet the deadline to file their application.

Henry also sought permission to be joined in the matter as an interested party.

The judge, who found that the residents had not filed in time, also rejected a second attempt by the residents to apply for permission to seek for judicial review.

Attorney-at-law Gavin Goffe, who is representing the residents, had argued that the documents were filed in time and that time must be computed from the date of the filing of the formal order.

Goffe further posited that time cannot run from the date of the order when the affected party is unaware, as this could lead to a party being completely shut out because of an error of the court.

The judge, however, stressed that the documents must be filed within 14 days of the order and the day on which the document is filed must not be counted. The judge ruled that the deadline was August 12.

“It does not involve the liberty of anyone, neither is it a criminal cause or matter. Consequently, the respondents/applicants cannot renew the application for leave to file a claim for judicial review nor does this court have the power to grant any of the amendments sought,” said the judge who heard the case brought by the developers.

However, Goffe, a partner in the firm Myers, Fletcher & Gordon, has indicated that he will be appealing the court’s refusal to grant them permission to apply for leave for judicial review.

“We had a different interpretation of the deadline to file, and so when we did not file within the deadline based on our interpretation, we had two options, we could either appeal the interpretation of the deadline or we could refile, and we chose to refile,” he said.

Henry is undaunted by the prospect of an appeal.

“We are confident that it can’t go [any]where. They are just trying to save face, but it’s just that it is going to cost us money. It will be very curious if a judge grants leave to go to judicial review based on the fact that they filed late,” he said.

tanesha.mundle@gleanerjm.com