Surveyor grilled over narrow access road for Holness-linked apt complex

A land surveyor used by the defence has testified that it’s not typical for a multi-family apartment complex, like the one owned by Juliet Holness's company, to be approved with a narrow three-metre-wide access road.

The comment came Wednesday from Timothy Thwaites, a commissioned surveyor, who Charlene Ashley engaged in October 2022. He was being cross-examined in the trial of the lawsuit brought by JAJ Development and Holdings against Ashley. JAJ is suing Ashley for allegedly failing to provide a splintered title to the land at Leas Flat, St Andrew, where its $800-million incomplete apartment complex is being built.

"...the lot in the subdivision that is being sold is specifically for multifamily, strata development set out in the agreement, is a three-metre wide road the norm for such a development?" asked Rose Bennett-Cooper, the company’s attorney. Holness is a developer and senior lawmaker.

"No," Thwaites replied. "The development did not only contemplate, in any documentation, the land that would be comprised in lot two... the road presented on the plan was contemplating access to lot two and did not appear to be contemplating access for the entire development."

The width of the road is one of the major points in the trial and Thwaites in his November 2022 expert report concluded that an eight-metre-wide road could not be accommodated for JAJ's property without causing alterations to Ashley's lot and its present gateway. He also concluded that sections of Ashley's property were included in JAJ's plans.

JAJ argued that the subdivision plan approved in 2011 showed an eight-metre-wide access road, which Ashley was required to deliver as part of the October 2012 sales agreement. JAJ bought the property from Ashley. JAJ's portion is lot two while Ashley lives on lot one.

Ashley has countered by arguing that delivering a title with an eight-metre-wide road would require demolishing her current gateway, violating a condition of the sales agreement that any easement from her lot should not alter her existing gateway or any concrete structures.

JAJ rejected a splinter title provided by Ashley in December 2022, saying it included a road only three metres wide, five metres short of the agreed width, and below the Kingston and St Andrew Municipal Corporation’s (KSAMC) minimum requirement of 6.2 metres. Ashley, a marketing consultant, has counter-sued for alleged trespass, claiming JAJ delayed providing necessary drawings until 2020, which affected her ability to resolve subdivision issues and deliver the title.

Bennett-Cooper’s question about the width of the access road followed a series of enquiries from presiding judge, Justice David Batts, who asked Thwaites about the width of a typical road for such multi-family developments.

Thwaites told the judge that while the subdivision plan approved a road wider than six metres, the title he received had a road with a width of only three metres. Batts then asked for the width of the average motor vehicle, to which Thwaites said, "I would estimate that to be maybe a metre and a half, two metres."

The judge then asked whether it was normal for an access road intended to serve a multi-family development to be three metres wide.

"No. A road to service an entire development would not be normally a dimension of three metres wide. The road as presented, if we look specifically at the subdivision of the lot and not the entire development, would serve the function of providing access to lot two and not be considering overall access to the entire proposed development. The process of subdivision and development are exclusive from each other," Thwaites explained.

Earlier, Bennett-Cooper extensively questioned Thwaites on statements in his November 2022 expert report, in which he noted that the 2011 subdivision plan provided "substantial information" at the time of the building drawings in March 2013, "to guide as to where the agreed and expected internal boundary lines of the subdivision would be, for them to have been taken into consideration in the overall layout of the proposed development".

Thwaites stated in his report that while a pre-checked boundary plan would be the final determinant of boundary location, "it would be reasonable to expect that these would not have deviated materially from those presented on the approved subdivision plan."

When asked by Bennett-Cooper whether JAJ had the right to rely on the approved subdivision plan, Thwaites responded, "I think reliance on a document which in itself is a proposal, a concept, to have such specific expectations would be beyond the ability of this plan to ensure".

He added that the title Ashley provided with a three-metre-wide access road was also not a significant deviation.

In response to further questioning, Thwaites said the sales agreement made "no immediate extension to the specific detail of the means of access that would be provided".

He added, "A means of access, we agree, would be necessary but the subject of the agreement for sale in this specific case was lot two, not the road."

Bennett-Cooper, however, countered that the subdivision plan in the agreement "depicted a particular width of a road" and JAJ was entitled to expect that road to be delivered as agreed.

Under earlier cross-examination, Thwaites admitted he had not received certain documents, such as JAJ's amended drawings approved in 2021 and the KSAMC’s conditions for the subdivision approval. Bennett-Cooper pointed out that his lack of access to these documents limited his ability to help the court resolve key issues, including access road width, parking spaces, density, and habitable rooms.

"Having not seen any drawings beyond 2013, you would not be able to speak to any access road beyond that date ...and similarly you would not be able to give an opinion on parking spaces as approved beyond 2013... and similarly you would not be able to assist this court with an opinion on any issue of density or habitable rooms as approved beyond 2013... and certainly, you would not be able to assist this court with whether or not lot one is calculated in any manner, whatsoever in the total area of land which falls into the claimant’s development land?" she asked.

Thwaites said 'no' to each question, clarifying that the documents he received to do his assessment did not go beyond 2013. He later acknowledged that some documents he received contained information beyond 2013.

Meanwhile, Thwaites had also indicated that he could not speak on when the alleged excavation and destruction of concrete structures took place.

As the grilling ended, Thwaites agreed with Bennett-Cooper that the access road, lot one, and lot two are exclusive of each other on the approved subdivision plan.

"So, the road is not a part of lot one?" she asked.

"That’s correct," Thwaites responded.

Bennett-Cooper ended her questioning by referencing the sales agreement’s stipulation that Ashley provide an easement for JAJ from lot one to the main road, as long as her existing gateway or concrete structures are not altered. She asked Thwaites whether "special condition 20 makes no reference to 'road'," to which he replied, "It does not."

At the start of cross-examination in January, she asked Thwaites whether he knew the legal definition of an 'easement'. He said 'yes'.

Meanwhile, Batts rejected an application by Ashley’s attorney, John Clarke, for the court to visit the land. The judge said visiting the property after most of the evidence had been presented could prejudice the case. The trial, which began in May 2023, continues today with JAJ due to call back its own expert to respond to Thwaites' evidence.

jovan.johnson@gleanerjm.com