BLAME ON NEPA

It was the Natural Resources Conservation Authority (NRCA) that botched the potential criminal prosecution of suspended National Water Commission (NWC) boss Mark Barnett and his wife for breaches of a permit for their St Andrew housing development, legal experts have asserted.

The NRCA has oversight responsibility for the regulatory body, the National Environment and Planning Agency (NEPA).

The Kingston and St Andrew Municipal Corporation (KSAMC), depending on when it became aware of the breaches, should also shoulder some of the blame for the failed prosecutions, two senior attorneys opined.

The assertions come amid wide public consternation over a legal opinion by Jamaica’s prosecutorial authority that allegations of irregularities made against Barnett and his wife, Annette, support the filing of criminal charges against them, but that the case is now statute-barred.

A case is statute-barred when the time frame stipulated in law expires before it is placed before the court.

The legal opinion by the Office of the Director of Public Prosecutions (ODPP) was made public yesterday by the Integrity Commission (IC), the country’s main anti-corruption body, which conducted an investigation into the allegations against the Barnetts and developer Phillip Smith.

The allegations stem from the construction of an apartment complex at 11 Charlemont Drive, in Hope Pastures, St Andrew.

The IC investigation confirmed that the NEPA issued building, planning, and environmental permits to the Barnetts on August 13, 2019, for the construction of two three-storey blocks consisting of 12 one-bedroom units.

They were granted a building permit by the KSAMC the following day.

However, the commission’s Director of Investigations, Kevon Stephenson, concluded, in a scathing 90-page report made public last October, that the development, now listed as completed, consists of six two-bedroom units and six three-bedroom units, “in breach of the permits issued”.

AWARE OF BREACHES IN 2020

According to evidence collected by investigators and reviewed by prosecutors, NEPA was aware of the breaches from late 2020.

“This entire scenario demonstrates a dereliction of duty in terms of the oversight entities,” prominent attorney Peter Champagnie opined during an interview with The Gleaner yesterday.

Citing Section 36 of the NRCA Act, Champagnie explained that the regulatory body has the power, where a breach is discovered, to give an authorised officer the go-ahead to file a complaint that would initiate a police investigation and ultimately, a criminal prosecution.

“So in short, it would appear to me that the NRCA would have been the proper entity to cause the investigation towards prosecution to be initiated,” he said.

The ODPP, in explaining its legal opinion, said Section 37 of the NRCA Act blocks the prosecution of any breach or any breaches under the legislation after the lapse of 12 months from the alleged breach and took a veiled shot at the regulatory body.

“The circumstances … noted in the report and investigation conducted by the Integrity Commission highlight the failure of the functionaries responsible to treat with and escalate the observed breaches of the NRCA,” the ODPP said.

Calls to NEPA’s chief executive officer, Peter Knight, yesterday went unanswered.

According to the evidence collected by the IC and reviewed by prosecutors, NEPA inspector Rhyan Henry observed, during his seventh visit to the project site on December 17, 2020, that the layout of the apartment complex had deviated from the drawings that had been approved, received, and date-stamped by the regulatory body on July 3, 2019.

Those breaches and others found by Henry during an earlier visit were outlined to the NWC president in a warning letter written on February 10, 2020, by Carlene Martin, acting manager of the enforcement branch at NEPA.

David Clarke, a senior building inspector at the KSAMC, conducted final inspections at the site seven days before Henry’s December visit and found that “all the requirements were in order”, the evidence shows.

Clarke explained, in a statement to the IC on November 29, 2022, that “the building structure was compliant with the approved building plans issued by the KSAMC for the property”.

“And that the number of rooms observed on the development was congruent with the number of rooms outlined in the approved building permit,” he said.

Eight months after the warning letter from Martin, another NEPA inspector, Jac-Wain Campbell, visited the project site and noted that one block contained six two-bedroom units, and a second block had six three-bedroom units.

Nearly three weeks later, Morjorn Wallock, director of NEPA’s legal and enforcement division, wrote to the Barnetts, requesting that they submit applications to the relevant authorities seeking an amendment “consequent on the project’s departure from what was approved”.

Annette Barnett acknowledged receiving Wallock’s letter on November 8, 2021, and requested a deadline of November 22 “to review and address the issues raised”, according to the evidence.

She acknowledged in February last year during an interview under oath with investigators at the IC that she had done nothing after her response to Wallock requesting additional time.

Champagnie suggested legislative changes that would give ordinary citizens who are aware of “flagrant violations” of housing permits the legal standing to initiate criminal prosecutions.

“It is clear to me that how the law is crafted concentrates the power to prosecute in a way that it’s hard to initiate a prosecution, especially if there is a time constraint,” he said.

livern.barrett@gleanerjm.com