Rejection challenged
New Kgn parking lot plans face regulatory hurdles, company appeals to PM
Published:Sunday | February 18, 2024 | 7:11 AMJovan Johnson - Senior Staff Reporter
A company is seeking the intervention of Prime Minister Andrew Holness in its push to convert a New Kingston residential lot into a parking lot for a proposed multimillion-dollar business, hoping that he will overturn a state regulator’s “tainted” decision.
Hughmac Investments Limited, which is led by dentist Dr Andre Foote, says it will be appealing the decision of the Natural Resources Conservation Authority (NRCA) and the Town and Country Planning Authority (TCPA) to deny an application regarding the lot at 3 Lord Nelson Way in the Trafalgar Park area.
Under the NRCA Act, Hughmac can appeal to the responsible minister, who in this case is Holness, although, operationally, the point man could be Matthew Samuda, a minister without portfolio in the Ministry of Economic Growth and Job Creation.
The usual approach involves a committee of experts, including land use professionals, who hear the cases and then make a recommendation to the responsible minister.
Hughmac owns two adjacent parcels of land – one on 6 Garelli Avenue, which is approved for commercial activities, and the other, a residential lot at the back, which is 3 Lord Nelson Way.
The company plans to build a multistorey complex to provide office spaces on the Garelli Avenue property, but wants to use the Lord Nelson Way lot to accommodate 100 parking spaces, hence its application to the authorities for a change of status.
FIVE REASONS FOR REFUSAL
The state agencies, whose administrator is the National Environment and Planning Agency, handed down their decision on December 19, 2023. They listed five reasons for refusing the change of use application.
The TCPA and NRCA said the development represents “an undesirable type of use” within an established residential community and, if permitted, “would be prejudicial” to adjacent residential homes due to the noise and vehicular traffic it would bring.
They also argued that the proposal “is not in keeping with the planning objective of the area” under the 2023 confirmed development order for Kingston and St Andrew, that it “would likely prejudice the future development of the site and surrounding lands”, and that it “would be in conflict” with the zoning of the lands.
The authorities also considered complaints lodged by residents of Trafalgar Park.
But Hughmac is contending that the decision and reasons provided by the NRCA and TCPA are “irrational”, according to attorney-at-law Alton Morgan, who is representing the company.
He said there are about 15 grounds of appeal, with a central focus on the company’s view that “there would be no material change in the operational use of the [Lord Nelson Way lot]”.
“There appears to be an element of taint … . The decision is tainted,” he alleged in a Sunday Gleaner interview on January 22, noting that his use of the word ‘taint’ is in line with the Wednesbury Rule, a legal term that describes an unreasonable and irrational act by an entity.
According to him, the decision of the planning and environmental watchdogs included “an element of disregard of facts”.
“If you refuse to allow the thing on the basis of noise and what the person wants to use the thing for – parking; do cars parking generate noise? No … they generate sound,” the lawyer argued.
He also said the concerns about the volume of traffic were unfounded because “the proposed change didn’t involve any change in the volume of traffic because the land would be accessible only from Garelli Avenue”.
Morgan said the boundary on Lord Nelson Way “will be closed” and any access will be “only in the event of an emergency”.
The lawyer said the appeal will be directed to Holness in his capacity as the minister in charge of the NRCA Act, though he may delegate the matter to Samuda.
‘NOT AN OBJECTIVE BASIS’
The lawyer acknowledged that residents may be concerned that the rezoning of the Lord Nelson Way property could open the gates for other commercial interests to encroach on the residential area character of the neighbourhood.
But he said such a view is “not an objective basis” on which to consider applications for change of use.
“One of the problems we are experiencing is a perception in residential communities that they have a right to prevent developments which they regard as intrusive, whether it is so or not. … I realise they are not well informed about the law,” Morgan said.
He added: “There is an unfortunate feature of the educated middle class … being like the pigs from Animal Farm, that ‘hey, we’re more equal than others’. I [have practised] law for 50 years and I understand how people think. And, therefore, when there is development to take place in a community, you don’t get an objective analysis of it.”
Morgan said he was not being rude or condescending with his comparison.
If Hughmac does not get the decision overturned after exhausting all avenues of appeal, Morgan said redress will be sought under the Town and Country Planning Act, which allows persons to seek compensation if a decision prevents them from using their property “for a reasonable purpose”.
Hughmac was granted approval in 2019 to build a five-storey building for professional office spaces.
The Trafalgar Park Citizens Association, which represents homeowners on Lord Nelson Way, has welcomed the TCPA/NRCA's decision as protective of the residential character of the upper income neighbourhood.
"The developers want to use the property as parking area for a proposed office development on Garelli Avenue. Very soon the remainder of the community will become commercialised. The Trafalgar Park Citizens Association rejects any proposed change of use of the property and is committed to protecting one of the last remaining residential communities in the city of Kingston," the group told The Sunday Gleaner in a statement yesterday.
‘HEIGHTENED LEVEL OF MISTRUST’
The complex issue demonstrates the “heightened level of mistrust” residents have of the country’s handling of development issues, argued Professor Carol Archer, an urban planner and professor at The University of Technology, Jamaica.
But she said the TCPA’s decision suggests a “reasonable” consideration of the development order to protect the rules that govern the residential character of the Lord Nelson Way area.
“I’m using the word ‘reasonable’ because I’ve not had the opportunity to study the issue in its entirety, but on the surface, … in terms of its objections, those are reasonable given the issues of density, traffic flow, citizens’ engagement,” the expert said.
Professor Archer said other ways of resolving the matter would include the company revisiting its designs for the multistorey building to reduce its density and, therefore, the number of parking spaces needed.