Real estate jitters

Four St Andrew homeowners have filed court action seeking to overturn new development rules for Kingston and St Andrew, causing jitters in the local real estate sector.

The case stems from the residents’ application for a judicial review of the building permit granted by the Kingston and St Andrew Municipal Corporation (KSAMC) to Kapland Building Solutions Limited for the construction of a multifamily apartment complex at 28 Sunnyfield Drive in Havendale, St Andrew.

On June 21, the Supreme Court granted Ryan Davis, Ramona Davis, Allison Birche, and Joan Russell permission to apply for judicial review of the permit. They applied on July 2, naming the KSAMC as the sole defendant.

A judicial review allows the court to assess whether the processes used by a public authority to make a decision are fair.

The residents of the predominantly middle-class community claim that the KSAMC did not consider their objections, as required by law, before granting the building permit on September 6, 2023. It is why they want the court to overturn the permit and declare, that based on the Building Act, they should first be consulted by the KSAMC.

The applicants are asking the court to declare that the 2023 confirmed development order for Kingston and St Andrew and the Pedro Cays was not properly approved and should be deemed “illegal, null, void and of no legal effect”.

A development order is a legal document used to guide development in the area to which it applies. It enables the authorities to regulate land use such as stipulating how many habitable rooms can be built on each a parcel of land. It falls under the Town and Country Planning Act (1957).

A provisional development order for Kingston and St Andrew was proposed in 2017, and confirmed in 2023, replacing the previously confirmed order of 1966.

The residents claim that changes made to the 2017 provisional order were not shared with them before being included in the confirmed rules. They want the new rules thrown out, or at least the amendments.

One of the claimants, Joan Russell, pointed to a May 12, 2024 article by registered architect and conservationist, Dr Patricia Green, which was published in this newspaper, to support the argument that residents were not consulted before changes were included in the confirmed order.

According to Green, in the commentary titled ‘Where do citizens appeal’, Havendale and Meadowbrook fell outside of any local planning area. In the 2017 provisional order the allowable density or number of habitable rooms per hectare was 75.

Under the 2023 confirmed development order, the density for Havendale and Meadowbrook “immediately changed” to 125 habitable rooms per hectare or 50 per acre, the expert wrote.

Residents were

not consulted

Russell, a 75-year-old retiree, claimed residents were not consulted on the change which is a breach of Town and Country Planning Act, which requires that a provisional development order be confirmed with or without modification after a period to facilitate objections.

“Any amendments to a confirmed development order would be required to follow the procedures prescribed in Section 8 of the [Town and Country Planning Act], which requires that gazetting and consultation be applied to those amendments prior to their confirmation, as is required for a provisional order, but this was not done,” Russell asserted.

Regarding Kapland’s proposed development, Russell said she and other residents filed an objection with the KSAMC on April 20, 2023, days after they said the developer posted a notice of its intention as part of the permit application process.

The objections were acknowledged, according to an email from a KSAMC official dated April 24, 2023.

“This objection doesn’t automatically prevent an approval of a building permit. However, your reasons for objecting will be evaluated against the proposal and the final decision will take into account the reasons,” said the email exhibited in the residents’ court filings.

But Russell said their objection has been “ignored” as the KSAMC held no hearing with the residents before permission was granted to Kapland.

Three of the residents in the court action were among the persons who objected.

Karl Palmer, one of the principals behind Kapland, declined to comment, noting that the matter was before the courts. Similarly, the KSAMC said it would not comment, noting as well that the matter is before the court.

Meanwhile, this is the latest development-related case that will bring further scrutiny to the state’s regulatory system for the approval of building and planning permits.

Triggered into action by increased agitation from residents of mainly middle and upper-income residential neighbourhoods, the courts in recent years have overturned building permits and slammed parish and planning authorities for failing to follow the law.

The situation is more acute in sought-after communities of the capital city Kingston, and St Andrew where residents in single-family dwellings feel threatened by the growing demand for housing and multifamily high-rise units.

Property rights

The residents in the Havendale case claim that their property rights are being infringed and are opposing Kapland’s application in the court for the restrictive covenants, or community rules on titles, to be changed to allow multifamily developments.

Dayton Wood, chairman of the Jamaica Developers’ Association, said the case should be closely watched because of the significant implications for the industry.

“The approval of the guidelines was something welcomed by the developers and we would hate for it to go back to no-man’s land,” said Wood on behalf of the association that represents real estate developers.

“Where the mischief is and where the confusion is not so much with the development order as the approvals for covenant modifications and building approvals being granted prior to the covenants being modified,” he added.

He said “potentially” hundreds of millions of dollars in real estate investments in the Kingston and St Andrew area could be impacted by the case.

In the meantime, the residents are being hailed by Dr Carol Archer, a professor of urban planning and public policy at the University of Technology, Jamaica, and who has served as a special advisor to the United Nations human settlements programme.

“I am excited about it because when we talk about sustainable development; when we talk about safe and exclusive cities, these are things that are at the hallmark of realising the principles of the sustainable development goals,” said Archer.

She said the Havendale matter is the first case she is aware of that directly challenges a new development order.

“The judicial system is for all of us. I feel my right has been infringed on, I take it to court. The developers they bring their evidence.”

Major economic driver

Real estate development is a major economic driver on the island. For 2023, the estimated value of building/planning applications received by municipal corporations was approximately $250 billion, the Planning Institute of Jamaica reported in its latest Economic and Social Survey Jamaica released last week. That represents a six per cent drop compared with 2022. The report said the value of approved applications was estimated at $166.5 billion, while those that were being processed were for an estimated $171.1 billion.

“The estimated value provides an estimation of the contribution of building constructions and subdivisions to the economic or investment profile of a parish,” it said.

Building and planning applications to municipal corporations decreased by 12.3 per cent to 5, 213 and were received in nine of the 10 development categories – residential, commercial, industrial, among others. Most of the applications (87.5 per cent) were for residential development, followed by 6.4 per cent for commercial development. St Catherine, with 781, received the largest number of applications followed by the Kingston and St Andrew Municipal Corporation which received 734 applications.

St Catherine received the majority of residential applications, representing 15.4 per cent of this category, although this was a decrease of 7.3 per cent when compared with 2022. The KSAMC received the largest share of commercial applications (18.3 per cent).

Most of the applications (78.5 per cent) were approved within 90 days, the ESSJ said, adding that except for Portmore, municipal corporations with large numbers of applications, such as the KSAMC and St Catherine, had 90-day approval rates that were below the national rate.

jovan.johnson@gleanerjm.com