By FARRAH JOHNSON
Tribune Staff Reporter
SEVERAL of the homes occupied by the shanty town residents involved in a judicial review centred on the demolition of their communities were not constructed in compliance with the law and do not meet the standards outlined in the Building Regulations Act, according to Crown Attorney Kayla Green-Smith.
Mrs Smith made the comments as she continued her submissions before Supreme Court Justice Cheryl Grant-Thompson, defending the government’s plans to destroy the unregulated communities throughout the country.
During Friday’s proceedings, she contended the affidavits of former chief building control officer Craig Delancy “refuted” the evidence produced by the applicants which she argued did not give the judge a fair impression of the state of the structures in the communities.
Mrs Green-Smith noted that the court documents filed on Mr Delancy’s behalf highlighted several discrepancies in one of the affidavits filed by Callenders & Co on behalf of the 177 residents and shanty town occupants involved in the case.
“At paragraph 28 of the affidavit of Wislande Geffrard filed on August 10, 2019, it is stated that the sample of facts set out in her affidavit would give the court what she believed to be a fair impression of the circumstances of many of the individual residents in the shanty towns,” Mr Delancy’s affidavit read.
“I do not agree with this statement and in fact, the said affidavit is not accurate and does not give a fair impression to the court of the circumstances of the buildings themselves. In fact, the affidavit is skewed with regard to the buildings and their code worthiness”.
Mrs Smith said Mr Delancy spoke about a couple residing in Cowpen Road who claimed that they applied for a permit for their 700-square foot home, despite the fact that a search of the Building Control Division of the Ministry of Works revealed no evidence of them making an application for a permit in 2012 “or at any time going forward”.
“Since the division has no record of the permit application of (the individuals) and they have not produced this said building plan, or a permit, or a copy of a permit issued by the division, they are in violation of the BRA rules and code,” he explained.
Mr Delancy also said Ms Geffrard’s affidavit listed several building elements that gave the impression that the pair’s dwelling house was code worthy. Still, he stated the building they resided in had not been inspected.
“At paragraph 34.1 of the Geffrard affidavit, (another man) from Lazaretto Road stated that he started building his home and was served a warning notice advising him that he was in violation of the BRA and (needed) to come into the ministry,” the court documents continued. “(The man) said he had a low-cost plan done by Eddy Major, intimating that even the plans were drawn by Eddy Major who is not a draftsman or an architect.
“...I note that paragraph 65-67 of the exhibit of Geffrard shows a receipt of a low-cost home plan that has been stamped in the name Eddy Major indicating that it was purchased for the use of Eddy Major. However, there is no evidence of a valid permit being issued to either Eddy Major, or (the man) as the set of exhibit plans do not show a permit number stamped on the plans.”
Mr Delancy continued that while a building plan may have been purchased, the division had no record of a permit being issued to the man to construct his Lazaretto Road home. He also said that no routine inspections had been done to his building during construction which causes the structure to be in violation of the BRA.
“Paragraph 35 of the Geffrard affidavit refers to a (woman’s) building located at Bedrock Court off of Bacardi Road. The occupant claims that the plans were stamped and approved by the Department of Environmental Health Services and there is a utility agreement with the Water & Sewerage Corporation and Bahamas Power and Light. (While) the records of the division indicate that a valid permit was issued on December 18, 2002...there are no records of approved building inspections by the inspectors of the division and no evidence of an occupancy certificate having been issued by this department”.
Mr Delancy said he also reviewed the information provided for another lady who had a building in Bedrock West with “particular interest”. He said the evidence suggested the woman had a voter’s card that was issued to her by the government and had been living in Bedrock West with her family since 1990. However, he said that when he examined the address on the voter’s card, he discovered it listed a residence in the Baillou Hill Road area.
“I have come to the conclusion that (the woman’s) claim to be residing in Bedrock West since 1990 is a total fabrication as one’s voter’s card reflects the individual’s true address,” he stated. “Further there is no record in the division that the building (she) resides in was permitted or in receipt of an occupancy certificate”.
In view of these facts Mrs Green-Smith stated: “The evidence that the applicant’s claim gives this honourable court a fair impression of the condition of these houses in the various shanty towns has clearly, in our humble submissions, been refuted by the affidavit evidence of Craig Delancy which clearly shows that in most instances these houses were not built in accordance with the law.”
One of the arguments of the applicants raised the point of legitimate expectation. In their written submissions, they argued that the government’s initiative was unlawful as they applied a rigid policy with no exception as to how the discretion would be exercised.
In response to this argument, Mrs Green-Smith said even if there was some statement the applicants could rely on to have some level of expectation, “given the overriding principle or issues regarding public health and safety”, that expectation could be “frustrated”.
She also said the respondents had a “statutory duty” to enforce the law.
“At paragraph 83 of our submissions we note the second affidavit filed by Mr Delancy listed numerous violations to the rules and codes of the Building Regulations Act and submitted that the assessment of the buildings in shanty towns showed that the materials used for most of the constructions constructed did not meet the standard as outlined therein.
“In order to (support) a claim for legitimate expectation, the applicants must show that there was a clear statement, but we say in this particular case, the principle or the doctrine of legitimate expectation cannot be invoked as it would obviously interfere with a public body’s statutory duty”.
Addressing another argument, Mrs Green-Smith said the issue of consultation was always at the centre of the respondents’ plans “given the nature of the process”. She said this fact was especially evident with the establishment of the Shanty Town Action Task Force.
“In June of 2018, the initial notices were saying to the residents – and this had nothing to do with the enforcement (because) we did not reach to the point of enforcement at that point – come bring in your documents, allow us to see if you have the requisite documents (to see) whether or not the documents were in compliance with the law.
“And so, all of that would have been a part of the consultation process (and) at that point, no houses were broken down. The members and residents in those communities had an opportunity through the various radio announcements, to the notices that were issued to come in.”
Mrs Green-Smith also said the task force sent out many letters inviting various groups and organisations to meet to discuss the situation of unregulated housing developments in the shanty towns.
She said correspondence was sent to a representative of the Haitian Embassy, the president of the Haitian-Bahamian Association and Fred Smith, QC, among others.
In response, Mr Smith said when the letter was sent to him, he told Labour Minister Dion Foulkes to “remove him from the inclusion” of the shanty town committee, because he did not want to be involved in an “eradication agenda” that was a part of the government’s “ongoing inhuman ethnic cleansing” of people of Haitian descent.
During the proceedings, Justice Grant-Thompson also asked Mrs Green-Smith to respond to Mr Smith’s assertions that the actions taken by the government were "deliberately aimed at a nationality of persons", as opposed to concerns about the social, economic and sanitary issues that plagued their communities.
In response, Mrs Green-Smith stated: “This particular project is addressing the shanty town community...but certainly the work of the building control officer and his statutory duty to enforce the law of the Bahamas does not rest only within the Haitian community. It extends to the entire Bahamas...and so the approach here is a holistic one where we’re enforcing the law on one hand, elevating the living standards of these persons throughout the Bahamas, and in particular the shanty town communities.”
Before the matter was adjourned to May 25, Mr Smith pleaded with the government to cease demolitions in Abaco until the judicial review had been adjudicated on.
“Once again I can only invite the respondents to respect the process before the court and to not continue with any demolitions while the matter is before the court,” he said. “Your honour is actively deliberating on an application and out of respect for the court I would invite them to please stop the demolitions in Abaco in the meantime”.