11.01.22

The Formula for Corruption in Construction

Gavin Goffe
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The Formula for Corruption in Construction

Robert Klitgaard, University Professor and author of the book, Controlling Corruption, said that corruption may be represented as following a formula: C = M + D – A, meaning corruption equals monopoly plus discretion minus accountability.  He said “…one will tend to find corruption when an organisation or person has monopoly power over a good or service, has the discretion to decide who will receive it and how much that person will get, and is not accountable.”  He could easily have been speaking about the Kingston and St. Andrew Municipal Corporation (KSAMC).

As the only local planning authority in Kingston and St. Andrew, the KSAMC has a virtual monopoly on building and planning permission in the corporate area.  Its discretion to issue permits ought to be exercised in accordance with Development Orders promulgated under the Town and Country Planning Act.  These Development Orders establish important rules concerning matters such as density, building heights, building setbacks from the boundaries, minimum amount of green space and much more.  Where a proposed development is not in conformity with the Development Order, the KSAMC is required by law to refer the application to the Town and Country Planning Authority (TCPA). In practice, however, the KSAMC only refers applications to the TCPA when the proposed development includes a change of use of the land, for example from a residential purpose to a commercial purpose.  For everything else, they claim to use their discretion.

The Development Order for Kingston, which has been in effect since 1966, does not apply to St. Andrew, is notoriously outdated and contains very few rules.  In 2017, the TCPA published a Provisional Development Order for Kingston and St. Andrew which is meant to replace the 1966 Development Order once it has been confirmed by the relevant Minister.  That Provisional Development Order significantly increased allowable densities in certain neighbourhoods, which has led to the recent surge in high-rise apartment buildings.  Until that 2017 Provisional Development Order is confirmed, its status is that of a “material consideration” which the KSAMC is required to take into account, but which, it says, it is not bound to follow. 

In the purported exercise of the KSAMC’s discretion, their planning officers tend to not follow the guidelines that protect the environment or residents’ privacy. In the case of Young et al v The KSAMC et al, the planning officer at the KSAMC informed the Council that the apartment building had satisfied the density and setback requirements, when in fact it had not.  It was NEPA who, long after KSAMC granted the permit, inspected and discovered that the density had been exceeded, that the building was too close to the boundary with the neighbours among other breaches.  In response, the planning officer said that those variations were acceptable to him because the density was less than 30% over the limit and it wasn’t the entire 4-storey building that was too close to the neighbours- it was just the building’s balconies.  

Another example of discretion coming into play is with the minimum lot sizes for multi-family developments. The 2017 Provisional Development Order says that in some neighbourhoods multi-family developments, such as apartment buildings, are not permitted on plots of land smaller than a half-acre unless compelling reasons exist.  Despite this, the KSAMC’s planning officers say they do not need to have compelling reasons, as stated in the 2017 Provisional Development Order, because that Development Order is not yet confirmed.  In other words, because the 2017 regulations are not confirmed, the planning officers at the KSAMC ascribe to themselves this unfettered discretion to decide which developer gets a ‘bligh’ and which gets ‘brawta’. What could possibly go wrong?

The final element in the formula is the lack of accountability.  The KSAMC is one of the least transparent, least responsive public bodies that you will ever have to deal with.  Complaints from neighbours are routinely ignored. Meetings are scheduled and then cancelled at the last minute with no effort to reschedule.  Requests for interviews by reporters are often declined, if acknowledged at all. Even applications for information and documents made pursuant to the Access to Information Act are either delayed by months or denied without a valid reason.  Indeed, the KSAMC has argued in court that the residents affected by these high-rise apartment buildings have no standing to challenge their permits. This, while complaining of insufficient staff and other resources to monitor the developments in question.

With one of the planning officers at the KSAMC now being investigated following a multi-million dollar “administrative error” made in favour of a developer, it is quite clear that KSAMC = M+D-A.

Gavin Goffe is a partner at Myers, Fletcher and Gordon, and is the Head of the firm's Litigation Department. He may be contacted at gavin.goffe@mfg.com.jm or through the firm's website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.