Property Matters – St Augustine Nurseries part two

The previous column detailed the ways in which this HDC project was being pursued in breach of existing land and housing policy. In this article I will go further, to specify the HDC’s statutory responsibilities, which it is legally bound to discharge. I will also examine the potential for a judicial review of the prospective decision to approve this project.

In addition to the land-use policy points made last week, the HDC is a statutory agency of the State, created by the HDC Act 2005. The HDC’s functions and duties are specified at S.13 (1) –

“…13. (1) Subject to this Act, it shall be the function and duty of the Corporation to—
(a) do all things necessary and convenient for or in connection with the provision of affordable shelter and associated community facilities for low- and middle-income persons…”

The law lists the low-income persons ahead of the middle income persons, which would conventionally denote a priority. The first item in a list taking precedence over the second and so on, but that is straight-line thinking and that is not where we are. Not at all.

HDC’s official responses to my queries stated that less than 22% of the 13,484 new homes allocated between 2003 and 2015 were given for rent. That is a scandalous misallocation of Public Money, given that 95% of the waiting-list comprises persons who cannot afford to buy a home, even on the most generous terms.

Last week, the PM announced plans for a $9 Billion investment in 10,000 new homes to be built in the coming months. That is a virtually unattainable target. Just remember that the original target in the 2002 housing policy was for 100,000 new homes in a decade, but in the 13-year period 2003-2015 only 11,788 new homes were completed. Yes, that’s right, the numbers do not match. HDC allocated 1,696 more homes than were completed in that period, but that is for another article.

This project is called ‘North Grove‘ and will comprise 12 seven-storey apartment buildings, to provide 504 new homes with 756 carparking spaces and additional facilities.

The tenure issue can be examined by asking HDC two questions –

1. The 10,000 new homes – How many of those are intended to be offered for sale and how many are to be offered for affordable rentals?
2. North Grove – How many of those 504 proposed new homes are intended to be offered for sale and how many are to be offered for affordable rentals?

The HDC’s land bank is a crucial aspect of this if we are to deal with the stated position –

“…it is very difficult to get land to do this type of housing on the East-West corridor…”

The HDC needs to now produce details of its land bank so that we can get past this kind of unfounded and misleading statement. The vacant HDC lands in East POS are ripe for development, but the ideological decision to promote home-ownership is eclipsing the facts.

The Consultation questions are real and disturbing since the Cabinet decision has already been taken to do this project. Apart from the timing of the meetings, one has to wonder what is actually being discussed, given that the relevant policies have been suppressed. As one collaborator asked, in relation to this point, last week – ‘So what exactly is supposed to inform the public consultation process?‘

If there are no policies available to the public for consideration what is the real level of interrogation achieved in these concocted consultations? The political banter might be amusing at some slight level, but just remember that both political parties are in support of this process of alienating our limited greenfield land to increase the number of home-owning families.

So, what are the next steps for this North Grove project? According to the reports, the Cabinet has approved the HDC proposals for the housing project, with the Commissioner of State Lands and the Environmental Management Authority (EMA) yet to give approvals. The Minister of Agriculture, Lands and Fisheries (MALF), Clarence Rambharat, has publicly stated that he –

“…believes there will be no issue in getting the necessary clearance for the change of land use although the land is “grade A soil,” because “it is already a dense residential area…”

I repeated that astonishing and unacceptable statement, for emphasis. Utter unresponsibility, with the very Minister with responsibility for land stating that he is sure there will be no issue getting approval to relinquish grade A lands. As the older generation would say – Is a straight case of ‘nearer to Church, further from God‘

The Commissioner of State Lands will have to decide on the proposed change in land use and that decision, together with the EMA’s, could be subject to judicial review, if the decision is to approve.

Judicial Review is a court process to vet administrative decisions to ensure reasonableness and compliance with the law. A reasonable decision is one which ignored irrelevant considerations and took proper account of the relevant elements. The Land Policy of 1992 and the 17th January 2017 JSC testimony from the chiefs at the MALF both state, as a first priority, the preservation of prime agricultural land. It is my view that a decision to alienate Grade A soil in this fashion, when alternative development sites are readily available, will be overturned by the Court if a proper challenge is made.

According to the Privy Council, in a case from T&T –

In Fishermen and Friends of the Sea v The Environment Management Authority and Another [2005] UKPC 32, Lord Walker at para 28, emphasizing the need for public consultations, indicated that –

“Public consultation and involvement in decisions on environmental issues are matters of high importance in a democracy.”

All the ingredients seem to be in place for an epic case.