DIRECTOR of Public Prosecutions (DPP) Paula Llewellyn held no punches as she questioned the Kingston and St Andrew Municipal Corporation’s (KSAMC) handling of the suspected breaches of the Building Act by National Water Commission (NWC) head Mark Barnett and his wife Annette Francis-Barnett.

In a ruling handed down on Wednesday, in response to a report submitted to her by the Integrity Commission last October, the DPP said the KSAMC should conduct an administrative review in accordance with the provisions of the Building Act and decide if an invitation is to be issued to the police to conduct an investigation into possible breaches of the Act.

Llewellyn noted that KSAMC issued a permit to the Barnetts to build ‘two three-storey blocks consisting of 12 one-bedroom units each’ at the Charlemont Drive property.

“This permit was amended; however, there is no indication that the amendment related to, or increased the type of units stipulated in the initial permit. The amendment only modified the layout of the units in Block B and an expansion of the units in Block A by 60 square feet,” said the DPP.

However, the development by the Barnetts was done with two-bedroom units and three-bedroom units contrary to the building permits.

“An assessment of section 17 of the Building Act, against the available evidentiary material, shows that there is ample information from which a relevant authority may conclude that the permittees were in breach of the amended permit under the Building Act. This includes information from checks initially made by NEPA [National Environment and Planning Agency] where they formed the view, having seen the building works, that the units in the development being constructed were not in accordance with the permit issued by the KSAMC.”

In a particularly biting criticism of the KSAMC, the DPP pointed to information unearthed during the investigation concerning the seemingly discrepant views between the officer from the KSAMC and the officers from NEPA.

“The material suggests that the officer from NEPA observed and noted the breach on the 17th of December, 2020; however, seven days prior, on the 10th of December, 2020, Mr Clarke from the KSAMC visited the location and found that the building structure was compliant with the approved building plans issued by the KSAMC for the property located at 11 Charlemont Drive, Kingston 6 and that the number of rooms observed on the development was congruent with the number of rooms outlined in the approved building permit,” noted the DPP.

“The disparity in the relevant observations of these two significant agencies is quite concerning; NEPA, that is responsible for seeing to the environmental concerns of the country, and KSAMC, who has the responsibility of managing and maintaining high standards in the building code cannot be overlooked. As public officers, basic governance principles dictate that with great power there must also come great responsibility.

“The actions of public servants, in the performance of their functions, ought to be beyond reproach in order to instil confidence of the public in the local authority/KSAMC. It is imperative that the actions of the office of the chief engineering officer, including the senior building officer, be assessed by the KSAMC and [its] parent ministry,” said Llewellyn.

She pointed out that the issue of the treatment of breaches of the Building Act rests largely at the discretion of the KSAMC which has the authority to issue permits for building works but also the mandate to ensure compliance with the permit.

Llewellyn noted that the KSAMC has the discretion of imposing a fixed penalty on the developer or taking the matter to court.

“Section 78 [of the Building Act] would oblige the KSAMC to spearhead the investigative process and make a determination whether they will follow up on the fruits of the investigation such that they are further mobilised to initiate prosecution in what would be a viable case.

“If they take the view that they are not minded to issue a fixed penalty notice, they may then invite the JCF [Jamaica Constabulary Force] to assist them in the administration of their investigative functions and place the matter before the court so the ingredients of the offence can be proved to the requisite standard,” said the DPP.

She charged that based on the evidentiary material, it appears the KSAMC, including its chief engineering officer, did not make use of the extensive regulatory powers under the Building Act and argued that there is a need for an administrative review by the KSAMC and/or the Ministry of Local Government.

“It is rather alarming and quite surprising that in his statement Mr Xavier Chevannes, the chief engineering officer [of the KSAMC], said ‘upon completion of the construction, there was no certificate of completion issued’,” said the DPP.

“It would appear that he would have benefited from legal advice, as even the most cursory reading of the Act shows that the duties imposed on him and the local authority, were at that time provided for in the Building Act. Neither he nor his department issued any of the required certificates under relevant sections,” added the DPP.