Director of Public Prosecutions (DPP) Paula Llewellyn says that due to the technical nature of the provisions of the Building Act her office is unable to pursue criminal proceedings against embattled National Water Commission President Mark Barnett and his wife, attorney-at-law Annette Francis-Barnett, for breaching the law.

Llewellyn said that under the law it is entirely up to the local authority whether to initiate prosecution of the Barnetts.

The DPP, who was speaking to the Jamaica Observer on Thursday, was clarifying her ruling on the matter highlighted in an Integrity Commission (IC) Investigation Report which was submitted to her for review and a ruling.

The report, which was tabled in Parliament in October last year, concerned allegations of irregularities in the approval and post-permit monitoring processes in relation to the construction of a residential development by the Barnetts at 11 Charlemont Drive, Kingston 6.

The DPP ruled that the matter be referred to the Kingston and St Andrew Municipal Corporation (KSAMC) to conduct an administrative review in accordance with the provisions of the Building Act.

“Consequent upon the result of this administrative review, it would be a matter purely within the remit of the KSAMC to decide whether an invitation is to be issued to the Jamaica Constabulary Force (JCF) to conduct an investigation into possible breaches of the said Building Act,” Llewellyn said in her 12-page ruling dated January 10.

The DPP further explained to the Observer that, as it relates to the Building Act breaches, the reason her office could not go ahead and tell the police to lay charges “is because the way how the Act is structured, a heavy component is the whole issue of engineering and the building [codes]”.

“There is a scheme that addresses the penalties and the sanctions [that involves] their expertise to look back at the building, look back at the plans, look at the permits and the amended permits, look at everything, get…an engineer [to do a thorough assessment] and decide what they are going to do,” she said.

“Based on the scheme of the Building Act, although when one looks at it you can see clearly there were breaches, but because of the technical nature of the assessment that will be required, it would have to go back to KSAMC and their experts to decide whether the changes were of such that they could say to the police go ahead and investigate, we will give you all the documentary material and charge via the complainants or based on how things were done and their practices and procedures and what their experts are saying after they look at the plans, they could say then that we are going to opt instead for a fixed penalty,” she added.

The Building Act gives the municipality a wide enforcement regime which allows the issuance of fixed penalty notices under section 78.

According to the Act, where a local authority finds that a person has committed an offence in relation to its area of jurisdiction and to which this section applies, the local authority may give that person the prescribed notice in writing, offering the opportunity of the discharge of liability to conviction for that offence by payment to the local authority, within the period and in the manner specified in the notice, of the prescribed fixed penalty.

However, social policy researcher and analyst Carol Narcisse, in her reaction to the DPP’s ruling, said one cannot take issue with the judgment because the DPP is following the law.

She said that coming out of the ruling it is evident that the Building Act enables breaches.

“With how the Building Act is written, we are left now to depend upon the KSAMC to decide whether it will investigate, the said KSAMC whose inspector submitted false reports saying that the development was in compliance when it was not in compliance, the said KSAMC that like NRCA [Natural Resources Conservation Authority] failed to act per the legislation that they have when the breaches were brought to attention, in the case of the NRCA, by their inspector. So the law gives all the power to the KSAMC to deal with this matter and it is the KSAMC itself which is the derelict agency, failing repeatedly to discharge its duty under the Building Act,” she said.

“The DPP’s ruling also puts the matter in the court of the Parliament because the Parliament now has to look at the NRCA Act and it also has to relook at the Building Act and make the necessary amendments to close these loopholes,” she added.

The IC’s Director of Investigations Kevon Stephenson, in his report on the matter, had concluded that Barnett and his wife had breached the building, planning, and environmental permits issued by the KSAMC and the National Environment and Planning Agency (NEPA) for the construction of the development, consisting of 12 one-bedroom units at the upper St Andrew.

He said the fact that the development consists of six two-bedroom units and six three-bedroom units instead of 12 one-bedroom units demonstrated that there was a clear intention on the part of the Barnetts to contravene the terms of the building and planning permit.

He also recommended that the KSAMC take action against the Barnetts and the developer Phillip Smith for breaching the building permit.

In her ruling, the DPP stated that the nature of a criminal prosecution in these types of circumstances necessitates the involvement, direction, and unreserved cooperation of the local authority/KSAMC. “Documents such as the application for the permit, the permit issued consequent on that application, and all documents attached to the applications submitted to the KSAMC must be made available in a format that is evidentially viable in a criminal prosecution,” she said.

The DPP had also ruled that though the allegations support the laying of criminal charges against the Barnetts for breaching the environmental permit, which is an offence under the NRCA Act, there can be no prosecution as criminal action is now statute-barred, given that the initiation of prosecution is time-sensitive and it was not initiated within 12 months of the breach being identified.