The Cost of Doing Business – Making an Appeal

Savvy business owners and investors should always be seeking legitimate ways to reduce the cost of doing business, as doing so will increase competitiveness and drive profits.

One of the costs of doing business in today’s highly regulated society is the cost of obtaining, and also staying in compliance with, the necessary governmental permissions required to set up and operate a business in accordance with the law. Examples of these permissions include planning and building approval, and environmental permits and licences.

While most costs are part and parcel of the process, and thus largely unavoidable, there are some compliance-related expenses that can be reduced.

The unavoidable costs include paying an application fee, retaining an architect, engineer, or environmental professional to shepherd you safely and efficiently through the bureaucracy, and ultimately paying the fee for the consent when it is approved.

Given the length of time which can elapse between when the application is deposited and when the good news is received that the application has been approved, you may be forgiven if you are overwhelmed by a feeling of joy, so much so that when the permit is finally in hand you think that is it — a job well done – and you proceed with your project without closely scrutinizing the approval paperwork.

However, care must be taken to properly peruse the approval, as most approvals will have a set of conditions attached, compliance with which will come at a cost. More importantly, non-compliance with these conditions can come with even greater risks and costs. These conditions will be either general in nature (those which are standard for an activity of a certain type), or specific in nature (those which are crafted to address the particular processes of your enterprise or the location of your project). Some of these conditions of approval, despite the best intentions on the part of the regulator, may simply not be relevant to your planned activity, while other conditions you will be properly stuck with. Regardless, it is not unsurprising for there to be some element that is unnecessarily onerous, such as a high frequency of providing compliance reports to the regulator.

Having identified the offending condition, compliance with which will require incurring costs, the question therefore arises as to how to avoid or alleviate such burdens. The first course of redress is so simple that it is often overlooked: that is, to make a request to the regulator for an amendment to be made. Any reasonable regulator should consider such a request.

Assuming that the regulator has not been convinced by the request made for an amendment, the next step is to properly lodge a formal appeal with the relevant body set up by law. Careful consideration therefore needs to be given to the statute under which the grant (or refusal) was made as this statute will specify to whom the appeal should be made. Quite often, the appeal is made to the relevant portfolio Minister or a statutory tribunal.

In making an appeal it is critical to note the date of the decision (or the date that the decision was published in the Jamaica Gazette) as appeals are time sensitive and the ability to appeal can be lost if there is delay.

The appeal is in the form of a hearing and the task is yours to advocate for your interests before the tribunal (or Minister), with expected resistance from the regulator who is present, that the conditions should be discharged or varied. Effective legal representation should be sought when making the appeal, as quite often the decision handed down is final and it is only in limited circumstances that it may be modified by a court through judicial review.

While the costs of obtaining the permission in the first place and the costs of staying in compliance may be high, one way to tackle the cost of doing business is to ensure that the only conditions you are left to comply with are the ones that are actually relevant to your business. It should also be kept front and centre that there is one cost that no business wants to have to incur, and that is the cost of non-compliance, as the sanctions can include suspending or rescinding the approval, monetary fines, and in some cases incarceration.

This article is for general information purposes only and does not constitute legal advice.

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