08.07.15

Legitimate Development 101

Often times in Jamaica, companies, developers, the general public and even lawyers are unaware of the various licenses and permits required to commence development operations. In light of this many developments operate in a manner tending towards breach rather than compliance with development and planning laws. Ultimately, it is in Jamaica's best interest that the planning regime is adhered to as the island faces many planning issues such as traffic congestion in major towns, poor drainage, limited housing solutions, undersized sewage solutions and inadequacy of commercial and industrial facilities for effluent/waste disposal. This article accordingly serves as an outline of the various permissions needed to legitimately commence a commercial, industrial or residential development in Jamaica.

The Permissions

To legally begin any development in Jamaica, three main types of permissions may be needed: Environmental Permission, Planning Permission and Building Permission. For this article, particular attention will be paid to Environmental Permission and Planning Permission.

Environmental Permission is needed when any proposed development may affect the environment, in particular those activities and developments listed in the Natural Resources (Prescribed Areas) (Prohibition of Categories of Enterprise, Construction & Development) Order, 1996 as amended.

Planning Permission is needed for any construction whatsoever. In the case of all developments, once Environmental Permission is needed, this must be received before Planning Permission can be granted. Planning Permission applications can generally be divided into those that propose a development which conforms with the relevant Development Orders covering the specific area, and those that do not conform with the Development Orders. A Development Order consists of land use zoning maps and policy statements and standards relating to land use activities. For example, the entire Jamaican coastline is covered by a Development Order. Over 70% of the Island is covered by various development orders.

The Authorities

The National Resources Conservation Authority (NRCA) is a body established by the Natural Resources Conservation Authority Act. From this Act, the NRCA has been entrusted with the power to protect the environment which includes, inter alia, taking steps to manage the physical environment and ensure the preservation, protection and proper use of natural resources. Amongst its many tools to implement these functions, the NRCA utilizes a system of permits and licensing which is fortified by its powers to give enforcement notices dealing with environment and public health breaches and to make cessation orders for unpermitted activities. The NRCA therefore deals with Environmental Permissions.

Planning Permission on the other hand falls under the Town and Country Planning Act creates three public bodies; the Town and Country Planning Authority (TCPA), the Local Authorities (also known as the Parish Councils) and the Government Town Planner. These bodies deal with Planning Permissions.

Once a proposed development does not conflict with a Development Order in place for the applicable area, the respective Parish Council will be the body to consider the application for Planning Permission, unless the TCPA determines that the application should be referred to the TCPA for consideration. Other Applications will be automatically referable to the TCPA by virtue of the application's non-conformity with a Development Order, as the TCPA is among those public bodies responsible for enforcing the planning laws of the country.

To tie it all together administratively, the NRCA together with the TCPA form the base of the Executive Agency known as the National Environment and Planning Agency (NEPA).

To permit or not to permit, what goes into the decision?

When an Authority receives an application for Environmental or Planning Permission as the case may be, the starting point is always for the Authority to consider the possible effect on the environment. If the development is likely to be injurious to public health or natural resources then permission will most likely be refused. As alluded to earlier, an overriding consideration for the decision making process is the conformity of the proposed development with the Development Orders promulgated for the given area. The Authorities in arriving at their decisions must take into account all material considerations including sound scientific or policy grounds for granting or refusing permission.

What is to be taken into account when coming to a decision is measured by an objective standard, specifically whether a reasonable government body, in charge of similar functions as the Authority is tasked with, would take a certain matter into consideration.

When making a decision it may also be necessary for the Authority to consult with other bodies. For example it is necessary for the NRCA to consult all agencies and government departments exercising functions in connection with the environment, such as the Ministry of Health, the Jamaica Bauxite Institute, the Parish Council etc.

Protecting interests on all ends

The law protects applicants from arbitrary or unreasonable decisions. An applicant who is dissatisfied with a decision made by an Authority may challenge it by way of judicial review. Therefore any refusal given must be in writing and must state the reasons for refusal, and these reasons should be able to withstand judicial scrutiny.

If the body did not take into account something it should have against an objective standard or if the body took into account something it shouldn't have, this may be grounds for the decision to be overturned. Similarly if the Court finds that no Authority similar to that making the decision and having such powers could have reasonably come to that decision in light of all the considerations, the decision may be quashed. Another interesting point to note is that a person who loses value on their property by virtue of their application being rejected may be eligible for compensation for this loss in certain circumstance under the Town and Country Planning Act.

The law also protects the public from violations of environmental and planning laws. The Town and Country Planning Authority has the power to issue Enforcement Notices to prevent and stop unauthorized developments and Stop Notices which stop unauthorized, hazardous or dangerous developments. Violators of these notices and offenders against planning and environmental laws may also be prosecuted.

To wrap it all up

The primary aim of the development laws, rules and regulations is to make Jamaica the place of choice to live, work, raise families and do business. The social and economic benefits from a healthy, productive and sustainable environment are shared by all. It is therefore the responsibility of all to comply with environmental and planning laws. However the only way we can reach this goal is by timely and effective enforcement of our environmental and planning laws. Those developers who seek to build without getting permission, or who build undersized or inadequate infrastructure should be refused permission and ought to be the subject to more intense scrutiny by our regulators.

Prospective developers are therefore encouraged you to get in contact with the regulators at NEPA, the KSAC and the Parish Councils so that they may be provided with the information necessary to ensure compliance with our development laws. Legitimate development benefits not just the investor but all of us who wish to see Jamaica become the place to live, work, raise our families and do business.