Tue | Dec 11, 2018

NHT notches win in ongoing trespass case

Published:Friday | September 21, 2018 | 12:00 AM
The NHT headquarters at Park Boulevard, New Kingston.

The Court of Appeal has sided with the National Housing Trust, NHT, that it is obliged by law to ensure safety to life and property as the state agency appointed as undertaker of a flood-water control area in Creighton Hall, St Thomas.

The court's president, Justice Dennis Morrison, made the observation in staying permanent injunctions the Supreme Court had granted against the NHT, restraining the state agency from permitting the discharge or flow of water on to land owned by Treebros Holdings Limited, or entering and remaining on the land.

In January this year, Supreme Court Justice Carol Lawrence-Beswick awarded Treebros, an overseas company registered in Jamaica, damages for trespass, nuisance and negligence as well as costs on an indemnity basis.

The NHT was in the process of developing lands at Creighton Hall in 2012. To effectively build a drainage system for water coming from its property, the NHT entered negotiations with Treebros for an easement to implement a system on their property which would eventually take the storm water to the sea.

During the negotiations, the NHT put in place a drainage network on its own land and although there was no construction on Treebros's property, the water was now channelled on to its premises. The parties fell into dispute regarding, among other things, compensation to be paid, and Treebros demanded that the NHT stop the water from entering its property.

In a claim brought against the NHT in 2013, Treebros contended that storm water drained from the housing agency's development was directed on to its land without agreement, resulting in damage to the property.

Justice Lawrence-Beswick had also granted permanent injunctions restraining the NHT from entering or remaining on the Treebros property or discharging water there.

NHT appealed from that decision, asking the court to stay the two injunctions as well as order for costs pending the hearing of the appeal.

A single judge of the Court of Appeal heard and refused NHT's application in that regard in March this year. NHT then took the matter before a three-member panel to set aside or vary the single judge's order.

The main thrust of the NHT's argument was that the Flood Water Control Act defined Creighton Hall as a flood-water control area and that as the undertakers appointed under that law, it has the duty to enter Treebros's land to implement a drainage system to dispose of storm water.

Justice Morrison said the Act, as well as orders contained in the Jamaica Gazette promulgated in pursuance of that law, being subsidiary legislation and having been brought to the court's attention, cannot be ignored.

He said the subsidiary legislation allows the NHT as the appointed undertaker to enter the land and take such steps as the authorised flood-water control scheme allows.

"The court is required to give effect to the intention of Parliament," said Justice Morrison. "Unless the court rules that the legislation it has under consideration is unconstitutional, the court should not find itself to be in conflict with the legislature," he added.

"The NHT, similarly, does not have the authority to decide whether or not it will rely on the statute, where the statute requires it to carry out a duty. It is obliged by the statute to do what is required, by law, to ensure safety to life and property," Justice Morrison said.

In granting a stay of the injunction pending the hearing of the appeal, he said it was based on the premise that they seemed to be in conflict with the act and the subsidiary legislation affecting the control of flood water in the Creighton Hall area.

One of the lawyers representing the NHT, Marlon Gregory, said the Supreme Court's decision on the housing agency's liability for nuisance and negligence remained to be heard by the Court of Appeal on a date to be set.

The NHT had also appealed the court's decision to order costs on an indemnity basis, arguing that the conduct of the agency was not high-handed as stated by the judge, and also that such an award is not permissible under the law and procedure which applies in Jamaica.

mcpherse.thompson@gleanerjm.com