KSAMC urged to take action against developer and two of its staff

Durrant Pate/ Contributor

The Integrity Commission (IC) of Jamaica has issued a damning report on National Water Commission (NWC) President Mark Barnett and his wife, Annette Francis-Barnett, an attorney-at-law, hinting that legal action should be taken against them.

The IC is also recommending that the Kingston and St Andrew Municipal Corporation (KSAMC) take legal action against the couple; developer Philip Smith and two of its staff, Chief Engineering Officer Xavier Chevannes and Senior Building Officer David Clarke. The 90-page IC investigation report, which was tabled in Parliament yesterday, stems from the commission’s probe into building permit breaches for the development at 11 Charlemont Drive, Kingston 6.

Building, planning and environmental permits were granted to the Barnetts by the KSAMC and the National Environment and Planning Agency (NEPA) for the development of 12 one- bedroom units at the location. However, following the probe, the IC found that the referenced development consists of six 2-bedroom units and six 3-bedroom units, instead of 12 one-bedroom units only.

After consultations with the IC’s director of corruption, the Office of the Director of Public Prosecution (ODPP) was alerted to the noted breaches in relation to the prosecution of any viable offence as the chief prosecutor may determine.

Clear intent at contravention

The IC’s Director of Investigation Kevon A. Stephenson has concluded that “there was a clear intention on the part of Mark Barnett and Annette Francis Barnett to contravene the terms of the building and planning permit, which was issued by the KSAMC in June 20, 2019, at the time of the execution of the joint venture agreement between Mark Barnett and Annette Francis Barnett and Philip Smith (Developer) on November 25, 2020.”

He also concluded that “the joint venture agreement executed between Mark Barnett and Annette Francis Barnett and Philip Smith is indicative of a clear intention, on their part, to build in contravention of the terms and conditions of the permit granted by the KSAMC”.

The IC’s conclusion is premised on the inclusion of a clause in the referenced agreement which required the parties to construct the development in accordance with the approved building plan and permit issued by the KSAMC for the construction of 12 one-bedroom units, which is then contradicted by another clause, which indicated that the owners were to retain ownership of two 2-bedroom units and two 3-bedroom units.

Stephenson highlighted that the aforementioned clause calls into question the integrity of the parties involved by virtue of their contracting to construct a development that breached the terms and conditions of the permit and development approval issued by KSAMC and NEPA. As it relates to the foregoing egregious conduct, the IG concludes that “there is sufficient basis for the NWC to consider Mr Mark Barnett’s moral authority to lead that entity, and whether by virtue of his actions, the entity has been brought into disrepute.”

Barnetts breached Building Act

Likewise, the IC’s director of investigation finds that the conduct of Francis Barnett as a member of the legal profession is inconsistent with her duty to at all times maintain the honour and dignity of the profession. As such, the IC has declared that the Barnetts “breached Section 17 (1) of the Building Act, 2018, which provides that building work executed pursuant to a permit issued by a local authority is to be conducted in accordance with the building permit and the Building Act”.

As it regards to Philip Smith, the IC asserted that he “either conspired with, or aided and abetted Mark Barnett and Mrs Francis Barnett, in the commission of the foregoing breach of law and is thereby equally liable for said breach. The IC’s chief investigator’s conclusion is premised on the fact that by virtue of his role as developer, it is reasonable to infer that Mr Smith must have been cognisant of the terms and conditions of the permits granted by the relevant authorities.”

Role played by KSAMC staff

The IC found that “KSAMC Chief Engineering Officer Xavier Chevannes failed to execute his statutory functions as outlined in Section 10 of the Building Act, 2018, in relation to inspection and post permit monitoring activities.”

This is premised on the following bases: (a) The chief engineering officer failed to ensure that an inspection was conducted at each stage of construction; (b) The chief engineering officer failed to issue the requisite certificate of compliance at each stage of construction; and (c) The chief engineering officer failed to issue a certificate of occupancy upon completion of the project.

It has been established that Chevannes failure to execute his statutory functions was a clear dereliction of duty,” noting that this failure facilitated the breaches of the building permit by the Barnetts. In addition, Chevannes’ was cited for failing in relation to inspection and post permit monitoring activities.

This is premised on the following bases: (a) The chief engineering officer failed to ensure that an inspection was conducted at each stage of construction; (b) The chief engineering officer failed to issue the requisite certificate of compliance at each stage of construction; and (c) The chief engineering officer failed to issue a certificate of occupancy upon completion of the project.

Senior building officer, David Clarke, has been cited for his failure to identify and record the breaches of the permit issued by the KSAMC in relation to the development at 11 Charlemont Drive, in accordance with his job description and the stipulations of the Building Act. The IC has recommended to KSAMC Chief Executive Officer Robert Hill to institute disciplinary proceedings against Clarke.

This is premised on the fact Clarke’s failure directly led to the completion of the residential development at 11 Charlemont Drive in clear breach of the KSAMC’s building permit, considering that the municipal corporation relies on the integrity, thoroughness and accuracy with which building inspectors and senior building inspectors conduct inspections and seek to uphold the entity’s rules and regulations.