The real estate market in Jamaica has been at best, stagnant in recent years. Slowly, however, there seems to be a slight resurgence in multifamily, as well as small commercial developments in and around the corporate area. Developers are again trying to get their hands on prime real estate for development with ambitious dreams of turning significant profits.

In conceptualizing, however, they often find that the application process as regards relevant permits and licences for development may prove to be one of a test of patience. A developer, who after careful consideration, consultation and millions of dollars later, often finds himself on the wrong side of the authorities when his application for permit/licence (whether environmental/building etcetera) is refused by the relevant authority or aspects of the permit granted are problematic as regards his future plans. With the kind of investments involved in these projects, it is not easy for such a developer to walk away from the project and just move on to the next one. The question then becomes, what can a developer do when faced with such a dilemma?

As these authorities are public bodies they are subject to review of their processes. There are also several pieces of legislation which provide for a process of appeal for a builder and/or developer who believes that the relevant authority has not exercised its powers as it ought. However, there is strict procedure which must be complied with before any appellate body can exercise the power they may have to review that authority’s decision.

This is not to say that it is every decision of the local authority which can be overturned or dispensed with. A developer who has submitted plans and other source documents which are in clear breach of the law or other developmental guidelines must face the fact that his appeal will not be entertained and that he may just have to go back to the drawing board. This is made clear in certain legislation, such as the Town & Country Planning Act (TCPA). Similarly, a developer who has already obtained a permit, but who despite the conditions of the permit, proceeds to build outside the scope of the permit, will find no favour from the appellate bodies.

When a decision is made by the relevant authority, appeals against those decisions are made in writing and directed to the Minister who is charged with responsibility and must be submitted within a certain time period (depending on the permit and the Act which governs that grant or refusal of that particular permit) of the date of the decision. The Minister, however, has a discretion to lengthen the time period, where it is evident to him/her that there are special circumstances which require an extension of time.

The Minister may thereafter call the parties for a hearing before him once one of the parties (that is, the developer or the authority) requests it. If not, he is able to make a ruling without having the parties before him. On hearing the appeal, the Minister can:-

1. Dismiss the appeal and confirm the decision of the Authority;

2. Allow the appeal and set aside the decision; or

3. Vary the decision.

Depending on the type of permit being appealed against and the particular Act, the Minister may have more powers. For example, for an appeal made under the TCPA, the Minister can go further and deal with the application as if it had been made to him in the first instance and therefore act as the Authority itself. An applicant who is aggrieved by the decision of the Minister under the TCPA can appeal his/her decision to the Court of Appeal. If dealing with an appeal under the NRCA, the Minister can allow the appeal and direct that the matter be determined afresh by the Authority. Under this Act, the Minister’s decision is final.

A prudent developer will ensure that the appeal process, as well as, the formulation of his/her grounds of appeal are directed by an Attorney-at-law who can properly advise on the viability of that appeal.

At the end of it all, it is the appreciation of the purpose and intent of the legislation and other guidelines for development which will save costs and time, as well as allow for development in the most economic and environmentally friendly manner. It is only where after consideration and adherence to the relevant laws and the guidelines for development have complied with but a developer believes that the decision of the authority is incorrect that one should need to resort to this process of appeal.

Ky-Ann Taylor is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Ky-Ann may be contacted via Ky-Ann.Taylor@mfg.com.jm or www.myersfletcher.com.