Environmental Regulatory Authority Green Paper

Transcription

GREEN PAPER NO.
THE ESTABLISHMENT OF AN ENVIRONMENTAL REGULATORY AUTHORITY (ERA)
Consistent with the Government of Jamaica policy commitment to improve the Planning
and Environmental Framework, this Green Paper is being tabled in the House.
The Cabinet Office through its Public Sector Modernization Division, under the guidance
of Professor Anthony Clayton of the University of the West Indies, spearheaded the
development of a Concept Paper for the establishment of an Environmental Regulatory
Authority (ERA). The ERA will effectively address environmental, social and economical issues
that will contribute to sustainable development and national growth.
A series of consultations with public and private sector stakeholders served to inform
the recommendations contained in the Green Paper. It is expected that this Green Paper will
generate enthusiastic and constructive dialogue from the wider public.
Bruce Golding, MP
Prime Minister
November 26, 2010
E-mail Comments to: lorna.perkins@cabinet.gov.jm
Environmental Regulatory Authority
Establishment of an
Green Paper
Public Sector Modernisation Division, Office of the Cabinet
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Contents
Glossary…..…………………………………………………………………………………....3
1 Executive Summary ………………………………………………………………….………4
2 Preamble .................................................................................................................................. 8
3 The current position ................................................................................................................. 9
3.2 The National Environmental and Planning Agency (NEPA) ............................................. 10
3.3 NEPA’s complex environment: legislation, plans, policies and agencies .......................... 12
3.4 NEPA’s caseload ................................................................................................................ 14
3.5 Enforcement problems ........................................................................................................ 17
3.6 Failing to plan is planning to fail ........................................................................................ 18
3.7 The case for reform in Jamaica ........................................................................................... 23
4 The National Spatial Plan ...................................................................................................... 25
4.1 The basis for integrated planning........................................................................................ 25
4.2 A fully modernized planning system .................................................................................. 28
4.3 Responding to changing priorities ...................................................................................... 30
5 The Environmental Regulatory Authority ............................................................................. 31
5.1 Viable and non-viable combinations of functions and roles............................................... 31
5.2 The roles and responsibilities of the lead agencies ............................................................. 35
5.3 OPM - Strategy and Policy ................................................................................................. 35
5.4 NEPA - Planning and permitting ........................................................................................ 36
5.5 NEPA – Advisory, Outreach and Training ......................................................................... 38
5.6 ERA - Monitoring and enforcement ................................................................................... 40
5.7 Cross-cutting regulatory functions...................................................................................... 41
5.8 The objectives of the ERA .................................................................................................. 42
5.9 Specific subject matters to be placed under the ERA ......................................................... 44
5.10 Legal Implications ............................................................................................................ 44
5.11 Institutional and Reporting Arrangements ........................................................................ 45
5.12 Management structure....................................................................................................... 45
5.13 Specialist skills ................................................................................................................. 46
5.14 Organizational reviews ..................................................................................................... 47
5.15 Financial considerations ................................................................................................... 47
5.16 Implementation plan ......................................................................................................... 48
6 Conclusions and Recommendations ...................................................................................... 50
6.1 Full integration .................................................................................................................... 51
Appendix 2 - ERA .................................................................................................................... 62
Appendix 3 – Finances ............................................................................................................. 63
Appendix 4 – Implementation strategy..................................................................................... 65
Appendix 5 – Steering Committee............................................................................................ 67
Appendix 6 - References........................................................................................................... 68
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Glossary
National Environment and Planning Agency – NEPA
Environmental Regulatory Authority – ERA
National Resources Conservation Authority (NRCA)
Town Planning Department (TPD)
Land Development and Utilization Commission (LDUC)
Town and Country Planning Authority (TCPA)
Regulatory Impact Assessment (RIA)
Technical Review Committee (TRC)
Internal Review Committee (IRC)
Wildlife Protection Act (WLPA)
Island Special Constabulary Force (ISCF)
National Water Commission (NWC)
Office of Disaster Preparedness & Emergency Management (ODPEM)
Regional Spatial Strategy (RSS)
Local Development Scheme (LDC)
Strategic Environmental Assessment (SEA)
Environmental Management Division (EMD)
Small and Medium Enterprises (SME)
Memorandum of Understanding (MoU)
Office of Utilities Regulation (OUR)
Jamaica National Environmental Action Plan (JANEAP)
Urban Development Corporation (UDC)
Water Resources Authority (WRA)
Rural Physical Planning Division (RPPD)
Local Planning Authorities (LPA)
Jamaica Information Service (JIS)
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1 Executive Summary
Some significant problems in the current arrangements for planning and environmental
regulation in Jamaica are impeding investment and development, whilst also failing to give
the environment adequate protection. There have been past attempts to solve these
problems, but most of these left the more dysfunctional elements of the previous system
intact, as they have resulted in an accretion of legislation, rather than a replacement of
outdated laws, and an overlay of additional regulations on top of an out-of-date planning
system.
This paper outlines three key reforms aimed at removing the underlying causes of these
long-running failures and provide by giving Jamaica with a modern, fully integrated
planning and regulatory system. This will deliver multiple goals: robust protection for
sensitive or vulnerable sites, clear delineation of no-built zones, prompt approval for
developments in non-sensitive sites, a more transparent and low-risk environment for
developers, and a more focused and efficient use of government resources.
The three key steps recommended in this report are as follows:
1. To establish an Environmental Regulatory Authority, and to transfer NEPA‟s
responsibility for environmental monitoring and enforcement to this new agency.
2. To develop a National Spatial Plan, to include „no-build‟ zones and to give NEPA
the primary responsibility for developing, maintaining and updating this plan.
3. To give NEPA the lead role in helping to solve environmental problems, via
education, outreach, advisory assistance and training workshops.
1) The Environmental Regulatory Authority (ERA) will have primary responsibility for
environmental policing, compliance monitoring and enforcement. It will monitor and protect
Jamaica‟s natural environment and biodiversity, and protect public health from
environmental pollution. It will regulate both the private and public sector with regard to
all projects with significant environmental implications. It will be independent and impartial.
Accordingly, it will:
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
Establish and maintain consistent standards for the management and regulation of
the environment in accordance with international best practice in these areas.

Monitor the performance of both public and private sector organizations to ensure
compliance with these standards.

Respond to complaints regarding environmental breaches perpetrated by
individuals, developers, other firms or state agencies.

Impose sanctions as appropriate. The ERA will have the authority to deploy a range
of measures, including prosecution, charges for remediation/restoration and, when
appropriate, punitive fines for individuals or organizations that deliberately, or
through gross negligence, cause serious environmental damage.
2) NEPA would be given the responsibility for developing and maintaining a new National
Spatial Plan. A national spatial plan reflects the developmental goals for the nation, and
translates this vision into a set of clear guidelines for action at both national and local level.
The plan establishes clear priorities, identifies areas in which particular types of land use
would be encouraged and others prohibited (e.g. - „no-build‟ zones), and guides the
development of transport routes, residential accommodation and industrial development,
conservation of the built and natural environment, and so on. Each individual application
can then be compared against the plan; applications that meet the criteria set out in the
plan can be immediately approved, so that it is only necessary to undertake a more
detailed review of those applications that do not meet one or more of the criteria in the
plan. This greatly simplifies and streamlines the entire planning approval process. Another
very significant benefit is that all Ministries, government agencies and local governments
use the same spatial plan, which ensures that their projects and programmes no longer
conflict with each other. Finally, this system establishes a clear and logical planning
hierarchy, as local authorities would have a clear role in controlling the mix of housing,
industry, retail, schools, clinics, recreation parks and so on, working within the broad
parameters of the national spatial plan.
3) NEPA would have a significantly strengthened role in assisting private and public sector
organizations to solve their environmental problems. For example, NEPA will organize
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exchanges of information as to environmental best practice, and work with sectors of
business and industry to help firms to comply with environmental standards, both in
Jamaica and in their export markets. This new emphasis on outreach, advice and training
is needed for a number of reasons:

Many businesses are not aware of much of the applicable environmental legislation
that could affect their business. NEPA will therefore ensure that businesses
understand both the problems and the solutions.

Few businesses in Jamaica have the capacity to keep abreast of pending changes
to environmental regulations and standards in key export markets. NEPA will
therefore ensure that exporters are aware of such changes.

There are some relatively new concepts, such as cleaner technology and industrial
symbiosis, which can help businesses to become more competitive and
environmentally cleaner by eliminating waste. NEPA will ensure that Jamaican firms
learn about these new solutions and can implement them.

It is important to ensure that good environmental solutions are both developed and
disseminated. To that end, NEPA will organize exchanges of information on
environmental best practice, environmental management, quality control systems,
energy efficiency and environmental impact assessment. For example, NEPA will
work with the construction industry to ensure that they are in compliance with the
building codes and standards that will be embodied in the development approval
process.
NEPA‟s role in monitoring and enforcement would be transferred to the ERA. As a
specialised, skilled agency, focused primarily on the most serious offenders, the ERA is
likely to be significantly more effective in this regard. This would allow NEPA to focus on its
expanded roles in planning and in resolving environmental problems. The efforts of the two
agencies will therefore complement each other. As the ERA becomes increasingly
effective, more businesses are likely to turn to NEPA‟s advisory section to request
assistance in solving their environmental problems, while NEPA‟s new role in managing
the national spatial plan is going to start to reduce the number of environmental problems
in the most cost-effective way; i.e. by good planning.
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Finally, the following two important points are to be noted:

This study has identified several serious problems in the current system of planning
and environmental regulation in Jamaica, and has proposed solutions. If the system
is to work properly, all of the problems have to be resolved. Solving just one or
more of them, in isolation, will not have the desired result. A comprehensive
approach is required.

This is a concept paper. If the recommendations in this paper are approved in
principle, there would have to be a further study to resolve a number of detailed
technical issues, such as the precise demarcation of responsibilities for
environmental standard-setting, monitoring, management and protection between
the agencies, the identification of roles when dealing with problems such as illegal
squatting, which represent both a planning failure and a serious environmental
problem, and the integration of tasks in order to ensure that all functions can be
delivered through the new „one-stop shop‟ system of access to government
services.
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2 Preamble
Some stages of economic development often coincide with a decline in environmental quality.
This can be seen clearly in countries such as China today, where their rapid economic
development has resulted in an equally rapid deterioration in air and water quality. As a result,
many people assume that there is an inherent trade-off, and that some environmental quality
must be sacrificed for the sake of economic development. Public debate can then become
confrontational, with environmentalists being accused of being anti-development and, by
extension, against poverty alleviation, and developers being accused of plundering the
inheritance of future generations.
However, the assumption that there is an inevitable trade-off between economic and
environmental goals is no longer correct; it has become clear in recent years that economic
restructuring, good planning and regulation, better management and more advanced
technology can deliver a combination of economic development and growth with rising
environmental quality1 (Clayton et al, 1999i, Clayton, 2005ii). Failure in this regard is now more
likely to be the result of policy incoherence, poor planning, regulation or enforcement, bad
management and a lack of awareness of available technological solutions. Many of these
problems can be seen in Jamaica today.
We must therefore improve our planning and regulatory systems if we are to achieve
sustainable development, which is defined here as a combination of economic development
and growth, rising incomes, high environmental standards, strong protection for important
ecosystems, good management of natural resources and an improved quality of life. This can
be translated into specific policy goals, such as energy and resource-efficient buildings, cities,
industries and transport systems, good water and resource management, waste minimization
and recovery, a reducing rate of environmental damage, with environmental remediation and
enhancement where appropriate, greater resilience and reduced vulnerability to storm surge,
flood, earthquake and other disasters, and urban systems that contribute to physical and social
well-being and thereby help to reduce conflict and crime.
1
Norway, for example, is a small country (population 4.6 million) with a large industrial sector, including oil,
gas and chemicals, high environmental standards and a high quality of life.
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3 The current position
3.1 Multiple problems
It is clear that there are certain problems associated with the current arrangements for
planning and the management of the environment in Jamaica:

Many people are concerned that there appears to be inadequate protection for
important ecological sensitive sites which, in some cases, do not have clearly
defined boundaries, insufficient resources to safeguard protected areas, and a lack
of clarity about the procedures for permitting or prohibiting particular developments,
which means that they have to be contested on a case-by-case basis.

There are grounds for particular concern about encroachment into wetland areas,
damage to reefs, deforestation, land degradation and water pollution, with the
associated loss of biodiversity, air quality in some urban areas, and the apparent
ease and impunity with which serious abuses (such as large-scale illegal sandmining) can be perpetrated.

Developers have complained about confused and overlapping rules, regulations,
procedures and agency remits, which can oblige them to deal with a number of
separate government agencies with inconsistent demands and requirements (this is
usually with larger developments). This lack of clarity gives rise to policy conflicts,
with one government agency is inadvertently undoing the work of another, and
results in costly delays which discourage investment.

There is a significant number of illegal developments, where people have
proceeded with construction without submitting any application, breaching planning
laws and, in some cases, environmental laws as well. The extent of the problem is
hard to gauge, but it is clear that a significant portion of society does not believe in
the planning system, have no commitment to its purpose or appreciation of its
benefits. Some of the illegal developments oblige respectable businesses to
compete against less scrupulous rivals (who may be reducing their costs by evading
taxes and regulation) and fosters a culture of non-compliance, where illegal
behaviour is seen as both normal and advantageous.
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
There is relatively little public awareness of the real cost of inadequate enforcement.
For example, failure to control over-fishing has been one of the main factors
contributing to the death of the coral reefs (see Haley and Clayton, 2003iii) which
has, in turn, both contributed to beach erosion and seriously reduced the potential
economic contribution of the fishing industry, whilst failure to adequately enforce air
quality standards has contributed to the rise in asthma and other respiratory
diseases (see Note 1 in Appendix 1). Thus inadequate environmental enforcement
incurs substantial health, social and economic costs.
There have been attempts to resolve these issues2, but these have had limited success,
and many of the problems still remain. Some of the problems stem from defects in the
regulatory system, others stem from gaps in the planning system. It is clearly in the
national interest that these problems are comprehensively resolved.
Problems in the regulatory system3
3.2 The National Environmental and Planning Agency (NEPA)
NEPA was formed in 2001 through the merger of three agencies; the Natural Resources
Conservation Authority (NRCA), the Town Planning Department (TPD) and the Land
Development and Utilization Commission (LDUC). The creation of NEPA was partly in
response to complaints about lengthy delays in development permitting by the Parish
Councils, TCPA and NRCA. For example, the McCalla report (2007)iv cites a 1996 study of
the development approval process commissioned by the Ministry of Industry and
Commerce. This recommended a number of legislative and procedural changes with the
aim of reducing the average processing time for subdivision and development applications
from 9–18 months to just 3 months, and the processing time for high priority applications to
6 weeks (i.e. a six to twelve-fold increase in processing speed). The McCalla report also
cites a study by the Ministry of Local Government and the Environment that estimated that
2
For example, the establishment of the environmental warden service was a response to the rising cost of
the lack of effective enforcement with regard to issues such as watershed protection.
3
This review draws on a number of earlier studies; full details are given in the references (Appendix 6).
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there was some $3.5 billion worth of investment capital for local development pending,
awaiting approval for applications submitted.
One of the most important reasons for the establishment of NEPA as a single agency,
therefore, was to solve the problem of slow and cumbersome development approval and
thereby increase the flow of investment, as well as to foster a more integrated approach to
planning and environmental protection.
Although NEPA was intended to bring about a significant improvement in the situation, a
regulatory impact assessment (RIA) in 2006v found that NEPA had actually been
“problematic and dysfunctional since its creation”. The study found that the agencies had
only been partially merged, and that the different agency functions were still governed by
separate legislation. NEPA was set up as an Executive Agency prior to The Executive
Agencies Act, which meant that NEPA was not given some of the instruments granted to
other agencies. This obliged NEPA‟s executive agency structure to operate in parallel with
the three separate legal entities over which it exercised administrative responsibility after
the merger, each of which still had to have its own board (this was effectively reduced to
two boards, at least temporarily, as the Land Development and Utilization Commission
(LDUC) was absorbed and remained „silent‟ on applications. Each of these boards then
met and adjudicated separately on issues, including applications that had to be approved
by more than one of the boards, which created the possibility that an application might
conceivably be approved by one part of NEPA and rejected by another. So the merger
process itself had created a number of serious organizational problems.
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3.3 NEPA’s complex environment: legislation, plans, policies and agencies
To add to this internal complexity, the RIA found that NEPA was operating under a number
of separate legal Acts, of which three were considered core:

The Natural Resources Conservation Authority Act

The Town and Country Planning Act

The Land Development and Utilization Act.
The other acts were:

The Wildlife Protection Act

The Beach Control Act

The Watersheds Protection Act

The Endangered Species (Protection, Conservation and Regulation of Trade) Act

The Local Improvements Act.
The McCalla report noted that in addition to its statutory framework, the work of NEPA was
further guided by over a dozen other policies and plans (see Note 2 in Appendix 1).
At the time of the RIA study in 2006, NEPA also had multiple divisions and allegiances,
with five divisions and twenty branches, and affiliations to a large number of other
Government agencies. For example, the McCalla report noted that the NRCA‟s Technical
Review Committee (TRC), along with the other agencies that might have to be consulted
on particular issues, comprised a total of sixteen agencies of government with
responsibility for particular aspects of various matters related to environmental
management (see Note 3 in Appendix 1).
The RIA study concluded that NEPA‟s structure, legislative framework, policy
commitments and inter-organizational arrangements were relatively unusual and complex,
that the desired simplification, efficiency gains and reduced cost had not been achieved,
and that it was hardly surprising that this hampered NEPA‟s operations.
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It is important to note that NEPA‟s structure was not supposed to be a permanent
arrangement. The McCalla report notes that the National Land Policy of 1996 set out three
stages for the creation of NEPA:

An interim merger. The merger process was originally scheduled to start in 1998,
but became operational in 2001 before the necessary legislative reforms were
completed. This was done because the necessary legislative reform process was
expected to be lengthy, and there was a perceived need to resolve uncertainty and
allow NEPA to begin operations4.

Legislative housekeeping. This was supposed to include relatively minor changes to
regulations and legislation over the following two years to improve efficiency.

The final phase was the legislative regularization of the arrangements for NEPA. It
was expected that this would include substantial legislative reform in order to
modernize land planning, environmental regulation and administrative processes,
and reconcile conflicting legislation.
Phase 1 was completed, and some work was undertaken under phase 2. Unfortunately,
the crucial phase 3, which would have made sense of the whole process, has still not been
completed.
The merger might have also had a better chance of success if other, parallel reforms had
succeeded. The McCalla report points out, for example, that the Town and Country
Planning Bill, which was drafted in 1999 to replace the existing Town and Country
Planning Act, would have introduced a number of important reforms (including a General
Development Order to cover the entire island, and a specific clause to ensure that the Act
would bind the Crown), but that since the merger no further action had been taken in this
regard5. This is unfortunate, because these two reforms would have summed to a much
more comprehensive and mutually supportive set of necessary changes, whilst the reform
4
It is important to avoid making the same mistake with the creation of the proposed ERA.
This was partly because there was a lack of agreement as to whether the draft bill should go forward on its
own or be part of a larger NEPA bill. The local authorities advocated a separate bill.
5
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of the TCPA would have greatly reduced the administrative load on NEPA and perhaps
allowed NEPA time to complete its transformation.
As noted above, one of the reasons for the establishment of NEPA was to streamline and
accelerate the approval process, but this did not succeed. NEPA‟s complicated structure
and the fact that a number of other agencies still had to be involved in the process for
obtaining planning and environmental permits undid much of the point of the exercise.
NEPA‟s inheritance of cumbersome institutional arrangements and parallel tracks resulted
in continuing lengthy delays and poor customer service (see Note 4 in Appendix 1).
NEPA‟s merger also did not result in the intended integration of environment, land use and
development planning considerations. As the McCalla report put it, “Town and Country
Planning and environment exist together in the name of a division but the respective
operations are separate, being joined only by the word „and‟.
3.4 NEPA’s caseload
Under the NRCA Act, the Authority was mandated to take such steps as were necessary
for the effective management of the physical environment of Jamaica so as to ensure the
conservation, protection and proper use of the natural resources. After the merger, this
agenda had broadened to include the following tasks:

To monitor the natural resource assets and the state of Jamaica‟s environment.

To prepare national environmental, planning and development strategies and action
plans and monitor the implementation of programmes and initiatives.

To prepare Town and Parish Development Plans and Parish Development Orders.

To prepare Subject Development Orders (such as the Telecommunications
Development Order).

To advise Local Authorities, private sector, TCPA and Government of Jamaica on
Land Use Planning and Development.

To advise the LDUC on change of Agricultural Land Use.

To enforce environmental and planning laws and regulations and approvals in the
areas covered by the Development Orders.
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
To provide Environmental and Land Use Database Systems.

To provide analysis of the change in NEPA‟s functions compared to the NRCA.

To process Applications for Environmental Permits and Licenses for:
- Beach use
- The Construction and Operation of Industrial Facilities listed on the Prescribed
Categories Project List (NRCA Permit and Licence Regulations 1996 & 2004)
Amendment)
- Discharge of sewage
- Discharge of industrial waste
- The export of Wildlife Species (such as Conch)
This is a large set of complex, demanding tasks, and NEPA was at no point given a fully
commensurate complement of staff or other resources. The increasing flow of applications
was a particularly heavy load on NEPA‟s relatively slender resources, with both the volume
and the complexity of the applications increasing markedly. With this increasing workload,
it is not surprising that NEPA was obliged to focus more on development permitting and
less on planning and environmental management, and was also unable to deliver the
anticipated increase in speed.
There were several other reasons for the continued slow processing of applications for
planning and environmental permission. For example, the Environmental Permit and
Licence procedure, which was supposed to be much simpler and faster after the merger,
still involved multiple tracks and several agencies. Applications would be lodged at NEPA,
then pass from the Applications Secretariat through the Applications Processing Branch to
an officer in the relevant professional field. The application would also be circulated to
NEPA‟s Internal Review Committee (IRC), which determined if it required further
processing (such as an EIA or some other consideration). The applicant would then be
notified of the requirements to be fulfilled for further processing of the application. Another
problem was that planning applications under the TCP Act would be lodged with the Parish
Council where the land was located, but some selected applications would then be sent to
NEPA for advice or for processing, and the basis for referral was not always entirely clear
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or consistent, which created uncertainty. A third complication is that while the Permits and
Licences Regulations under the NRCA Act (Prescribed Areas Order) apply to the entire
island, NEPA also has the responsibility to review development applications and
subdivisions against the provisions of development orders, but not all areas have
development orders. Where there is no development order, NEPA uses a Manual for
Development. This was developed by TPD in 1982 and was only revised as recently as
2006. This created two more different tracks for environmental and planning permitting;
one for 2/3rds of the island, another for the remainder.
Other problems have become apparent since the merger. For example, the RIA report
noted that NEPA had been left with important gaps in its mandate (for example, the current
legislation with which they operate makes no reference to the more sophisticated and costeffective market-oriented regulatory instruments used elsewhere6, which might have
allowed them to achieve results at less cost7), while the McCalla report pointed out that
NEPA was given a set of wide and sometimes conflicting roles, including:

Regulator

Policy maker

Advisor

Manager

Planner
Experience elsewhere suggests that some of these functions can be successfully
combined, but some must be kept separate (see Clayton et al, 1999, and also the
discussion below). There does not appear to have been an explicit consideration of which
functions should – and should not – be bundled into NEPA, which may well have caused
6
Countries such as the Netherlands, for example, have a land-fill tax with an escalator, so that the charges
are set to increment automatically each year. This allows companies to know exactly how much it will cost
them to send a ton to landfill in ten years time, which then allows them to calculate the Return on Investment
(RoI) on waste minimization technologies. There are also pollution pricing models, such as carbon trading,
which are supposed to allow pollution reduction in the most cost-effective manner.
7
The main exception here was the development of the air quality regulations, which included a regulatory
impact assessment to determine the likely impact of the regulations on business and industry.
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problems subsequently for NEPA (or, more likely, resulted in the effective dropping of
some functions).
3.5 Enforcement problems
Most studies agree that NEPA was given insufficient capacity, resources and institutional
support to fulfill all its obligations. For example, the RIA report noted that NEPA had a
limited ability to perform investigative monitoring, while its ability to enforce was limited
both by a lack of capacity and by the paltry fines levied for environmental breaches under
the NRCA Act8. The situation is not consistent, however. One of the more recent pieces of
legislation, the Endangered Species Act (2000) does allow for more serious penalties, and
there are provisions for penalties to be increased by order subject to affirmative resolution
in the Houses. The penalties under the WLPA and the Beach Control Amendment Act
(2004) have also been increased. Thus the problem is in part a lack of consistency, and in
part the lack of mechanisms to allow penalties to increment automatically. Another part of
the enforcement problem reflects the generally low level of awareness in both the police
and the judiciary of the true seriousness and economic cost of these crimes 9. The
McHardy report (2003)vi pointed out that controls to prevent illegal or damaging land
development were rarely enforced, as a result of a lack of enforcement capacity in local
government, a reluctance on the part of the police and the judiciary to use the full range of
powers available to them, failure to serve enforcement notices properly, and to some
extent the public‟s lack of understanding of the planning system10. The McCalla report
noted that it was intended that enforcement should be carried out by NEPA‟s enforcement
officers and the Island Special Constabulary Force (ISCF), but that most ISCF officers
were not aware of their responsibility over environmental offences or did not see them as a
priority, got little information from the environmental authorities, and were generally
8
There were proposed increases in the levels of fines, and the necessary Bill was drafted but not enacted,
because it was overtaken by this more general discussion of deeper failings in the system for planning and
environmental protection.
9
An ENACT programme attempted to address this problem by improving multi-agency enforcement. There
were also three symposia aimed at sensitizing the judiciary as to the importance of environmental issues,
although there was no evaluation to see whether these had had any effect in terms of sentencing.
10
As this suggests, there is a serious problem with regard to enforcement of planning breaches. It may be
necessary to support a major programme of public education to explain the planning process, as well as
strengthening the capacity to inspect and enforce.
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unaware of illegal activities taking place (such as housing being constructed without
permits).
This lack of support was also reflected in several confidential interviews given during the
RIA study that indicated that there could also be serious disincentives to pursue some
individuals. There were accounts of politicians intervening on behalf of friends or
constituents, for example, and placing officers under severe pressure.
This was a daunting combination of problems, which affected NEPA‟s effectiveness and
reputation (see Note 5 in Appendix 1). Both the RIA and the McCalla report therefore
recommended that the unfinished business of rationalizing and strengthening NEPA be
concluded as quickly as possible, and noted that this would involve repealing and
replacing several existing, outmoded and largely disconnected items of legislation with a
coherent and improved legal framework (see Note 6 in Appendix 1).
Problems in the planning system
3.6 Failing to plan is planning to fail
Many of the most serious problems, however, did not originate with NEPA (although
NEPA was often blamed), but fundamental deficiencies in the planning system. For
example, a review by KPMG Consulting in 2002vii noted various problems, including:

That there was little real planning, as this had been largely replaced by
development control, and development control was largely managed by central
government, leaving little real role for local government.

The planning system was unwieldy and did not address modern planning issues.

Many planning outcomes did not have public participation or support.

There was a lack of adequate capacity at all jurisdictional levels.
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
The long time taken for development approvals, which had a negative impact on
development and investment11.
The KPMG report noted that by 2002 there had already been a plethora of planning,
institutional development, and local government capacity building initiatives, all of which
attempted to address some aspect of the various concerns with the Jamaica planning
system (see Note 7 in Appendix 1), but that many of the problems remained in spite of
these initiatives. The KPMG assessment of these attempts at reform was that they were
not coordinated or based on a consensus as to the way forward. The report noted that
“this, more than any single other issue, must be addressed in order to establish a
measured, deliberate and integrated approach to modernization – a national directive
appears to be the only way to ensure this”12.
The report concluded that the fundamental problem was that planning legislation in
Jamaica was outdated. In particular, the report noted that:

Planning control was largely at the national level, and the Minister had the authority
to intervene in individual cases and over-rule decisions made by a parish council,
which raised concerns about due process, while local communities were not
empowered to develop their own plans.

The Town and Country Planning Act was outdated, and provided for regulation
through the development order mechanism, which “appears to be a curious mix of
planning and regulatory components, and not succeeding well at either”.

NEPA planners were responsible for preparing and updating the national physical
development plan, but the plan management and updating process was onerous
and under-resourced. The plans were not coordinated with the planning and
budgeting cycle of the agencies charged with delivering components of the plan,
and quickly became out-of-date, and the NEPA planners were struggling with an
11
At the time of the study, 55% of these approvals had been waiting for 1–2 years, 28% had been waiting for
3-5 years, 7% had been waiting for 6-10years and 9% had been waiting for over 10 years.
12
Current attempts to address this problem include the 2030 plan and the „Legs and Regs‟ committee, both
of which represent attempts to improve policy coherence and harmonization.
19
November 26, 2010
outdated planning system that placed most of the emphasis on processing
development control matters and very little on actual planning.

There was no effective mechanism to support integrated planning, and that all
programs were effectively uncoordinated, as they were operating in the absence of
a clear national planning framework.

NEPA‟s planning activity was dominated by development control matters, and the
task of processing an estimated 4,000 applications (over 75 per week in 2002) was
straining NEPA‟s planning resources. The KPMG report pointed out, however, that
much of this overload was really unnecessary, as many of the applications did not
require an equal level of scrutiny or circulation to other agencies. KPMG suggested,
for example, that instead of circulating applications to the Fire Department, it would
be much more efficient to have the Fire Department provide a map of the
community denoting areas where applications can be automatically approved by the
Fire Department, as well as the areas where more detailed reviews must take
place13.

There was no time limit imposed on the reviewing agencies, and NEPA was not
empowered to conclude that if no response had been received by a given date, that
the agency had no objection.

There was little or no planning taking place at local level, nor was any local-level
planning authorized under the Town and Country Planning Act, so the primary
function of planners at the local level was simply processing applications.

There were significant numbers of illegal developments, where people had
proceeded with construction without submitting an application. Estimates of the
level of this activity varied from relatively insignificant to about half of all
development applications, so the true extent of the problem was hard to gauge, but
it was clear that a significant portion of society did not believe in the planning
system, had no commitment to its purpose or appreciation of its benefits.
13
This is part of the value of a spatial plan, as all valid concerns and constraints can be mapped onto the
same plan, thereby making the task of approving or rejecting applications much easier and therefore faster.
So, for example, the NWC would identify its concerns (pipelines, aquifers and so on), the ODPEM would
identify the areas liable to flooding or landslide, and so on. These would all be set out on the same GIS map,
allowing everyone to see where development should and should not be permitted.
20
November 26, 2010
Other studies also support the conclusion that the most fundamental problems lie in the
planning system. For example, the McHardy report noted that development plans were
supposed to be long-term and be concerned with the best use of land in an orderly and
progressive manner, but that they did not have proper recognition in law, and that their
main use was as the basis for preparing development orders. The report also noted that
the process for the preparation of development plans was extremely slow, mainly because
of a lack of adequate financial and human resources, and that, as a result of the lack of
development plans and the lengthy process involved in converting them into regulatory
tools, many areas of the country did not have development orders, and that many of the
ones that did exist were out of date. The report further pointed out that the Town Country
Planning Act did not provide for a national physical plan or the basis for a comprehensive
policy for the use and development of land in Jamaica, and noted that two National
Physical Plans had been prepared but never adopted.
The McCalla report agreed, noting that with the sole exception of the St. Ann Development
Order (2000) 14, the Development Orders issued by TCPA were decades old15. The report
recommended a comprehensive updating of all the development orders and plans for
every parish, an enhanced role for local government in environmental management, and a
significant improvement in coordination and streamlining of administrative procedures. The
report concluded that NEPA‟s focus on the permitting process should be replaced by
integrated development planning and permitting.
It is clear that the lack of a proper planning framework is one of the main factors causing
delays in the processing of applications. The reason is simple; a good planning framework
sets out the rules, principles and zoning parameters that guide development. Each
individual application can then be compared against the plan; applications that meet the
criteria set out in the plan can be immediately approved, so that it is only necessary to
14
The report suggested that St. Ann's modern development order was probably a factor in its relatively rapid
economic development as the hub of north coast tourism.
15
Some more Development Orders have been drafted in the interim since the McCalla report.
21
November 26, 2010
undertake a more detailed review of those applications that do not meet one or more of the
criteria in the plan16.
This idea would have to be developed in more detail, of course, with several case studies
(such as the Canoe Valley area) used to test this proposed new approach.
However, some substantial reform in this regard is essential, as the current system is
seriously dysfunctional. For example, the McHardy report notes that the Ministry of Local
Government estimated in 2002 that less than 5% of applications were completed in less
than one year and over 50% of applications had been outstanding for 1-2 years, but added
that the data was probably skewed by the number applications which had been dormant
for years, noted that in some cases, this was because the applicants had not provided
complete information, and concluded that one of the major limiting factors was therefore
the lack of proper plans and guidelines17.
These deficiencies in the planning process have created significant ambiguity, uncertainty
and delays, which are likely to have hampered a number of legitimate applications from
respectable businesses. As the KPMG report suggests, the gaps and inefficiencies are
also likely to have created both incentives and opportunities for people to evade effective
regulation.
A particularly tragic consequence of the absence of a proper planning framework is the
development of settlements in areas that are highly vulnerable to storm surge, flooding and
landslides, which can then cost people their property, livelihoods or lives. Some of these
settlements are illegal, which reflects the lack of consistent enforcement, while others are
16
Some similar ideas have been discussed in the „Legs and Regs‟ project.
Dormant applications can also occur when an applicant is told, for example, that they must wait for
improved water service before proceeding. The application file is kept open, so that this would also
contribute to the apparent slow completion rate. NEPA also has a „delisting‟ process to remove certain
applications from the pending file.
17
22
November 26, 2010
legal, but still sited in unsafe areas, which reflects the lack of a hazard map or proper
spatial plan (see below).
It is crucially important, therefore, to develop a proper planning system for Jamaica, and to
ensure that there is a government agency with the strength and integrity needed to
develop and maintain the plan and to ensure compliance.
3.7 The case for reform in Jamaica
The current situation is clearly not in the national interest. The environment is not being
properly valued or adequately protected, potential risks to human health are not sufficiently
taken into account, development is delayed, investment is lost and officials are left
unsupported.
3.7 Repair or replace?
There are several initiatives to redress some of the current gaps. For example, legislation
is in process for the approval of cellular towers, and an attempt is being made to update
the development plan/orders for the various parishes. It is also important to note that there
have been some very significant successes. The legislation that created the national
parks, for example, is impressive, and superior in some respects to similar legislation
adopted elsewhere (including the UK), although this success was somewhat undermined
by the lack of resources needed to properly protect and police the parks. The important
point, however, is that the current unsatisfactory situation is partly the result of a number of
previous attempts to reform and repair the system, which suggests that a more
fundamental re-think is now required.
Most of the previous attempts at reform were addressed to specific failures, rather than the
underlying systemic problems, and therefore left some of the most dysfunctional elements
of the previous system intact. This process typically resulted in an accretion of legislation,
23
November 26, 2010
rather than a replacement of outdated laws, and an overlay of additional regulations on top
of an out-of-date planning system. Partly as a result of these various defects in the
planning and regulatory systems, Jamaica has experienced a seriously dysfunctional
combination of low economic growth with continuing environmental degradation, the
opposite of the desired outcome.
It is unlikely, therefore, that the fundamental problems in the system can be significantly
improved by yet further tinkering and piecemeal reform. This report therefore proposes a
more comprehensive alternative; that Jamaica adopt an integrated approach to planning
and regulation that will deliver multiple goals; robust protection for the most sensitive sites,
rapid approval for developments in non-sensitive sites, and a more focused and efficient
use of government resources. This will require greater policy coherence, the development
of a national spatial plan, clarity about the roles of the lead agencies and the creation of
one new agency, an Environmental Regulatory Authority (ERA), with responsibility for
environmental monitoring, management and enforcement.
This new approach has several goals. One is to strengthen environmental enforcement
and thereby encourage compliance by organizations and institutions. Another is to clarify
the roles of the various government agencies involved in planning and environmental
regulation. In particular, it will help to streamline NEPA‟s operations by reassigning the
responsibility for enforcement, thereby allowing NEPA to focus on good spatial planning,
on delivering an efficient development approval process and on helping firms come into
compliance.
It would be helpful to change NEPA’s name in order to make the distinction
(between the old version of NEPA and the new ERA) clear. For example, NEPA might
become the National Planning Agency or the National Planning and Development
Agency. For the purposes of this report, however, it is still referred to as NEPA.
24
November 26, 2010
4 The National Spatial Plan
4.1 The basis for integrated planning
The essence of a spatial plan is that it represents a clear statement of the overall vision
and goals for a nation, and translates this vision into a set of clear guidelines for action at
both national and local level. The McHardy report defines spatial planning as a high level
planning process that is inherently integrative and strategic, that takes into account a wide
range of factors and concerns and addresses the uniquely spatial aspects of those
concerns. This broad concept can include capital expenditure programmes as well as the
management and regulation of land-use change and land development.
The spatial plan then guides the development of transport routes, residential
accommodation and industrial development, conservation of the built and natural
environment and so on. The plan establishes clear priorities, and identifies areas in which
particular types of land use would be encouraged and others discouraged. All Ministries,
government agencies, local government councils and so on then use the same spatial
plan, which means that their projects and programmes do not then conflict.
This concept is supported by the UN Habitat Agenda, in the Istanbul Declaration on
Human Settlements, 1996, which states that urban problems can only be resolved with a
comprehensive approach that will address a wide range of social, economic, demographic
and environmental factors, including “homelessness; increasing poverty; unemployment;
social exclusion; family instability; inadequate resources; lack of basic infrastructure and
services; lack of adequate planning; growing insecurity and violence; environmental
degradation; and increased vulnerability to disastersviii”.
One example is the Regional Spatial Strategy (RSS) model used in the UK. Each UK
region develops a RSS as its main strategic planning document. This will include, for
example, targets for housing, development and employment. Each sub-district will then
have its own Local Development Scheme (LDS), a three-year development plan for the
25
November 26, 2010
local community. These RSS and LDS planning frameworks also include a Strategic
Environmental Assessment (SEA), which is a requirement under European Union law.
Jamaica is already committed to introducing this idea in principle. Chapter 10 of Agenda
21, to which the Government of Jamaica is a signatory, states that governments should
“establish a general framework for land-use and physical planning within which specialized
and more detailed sectoral plans (e.g., for protected areas, agriculture, forests, human
settlements, rural development) can be developed.”
The KPMG report agreed that the key step to a resolution of the planning and regulatory
problems in Jamaica would be to set out a clear definition of national interests and
priorities with regard to transport systems, health care, housing and so on, and to embed
these policy commitments in a modernized planning framework.
The KPMG report
specifically noted that the solution to the cumbersome development process was to
rationalize the planning system, not to add more staff to handle development control. The
KPMG report also recommended that more responsibility for planning should be
decentralized to local level, but pointed out that this would only work in the context of a
clear national policy framework. The McHardy report agrees, noting that the local
government reform programme in Jamaica is based on the principles of subsidiarity (which
states that functional authority and expenditure responsibility should be assigned to the
lowest level of government that is capable of effectively implementing a service), but that
this must be properly coordinated with national strategic priorities if it is to be effective, and
actually achieve the desired results. This in turn requires a flexible but robust mechanism,
which is the role of a national spatial plan.
The KPMG report made the important distinction that it was not recommending a static
physical development plan, but rather to establish national policies that would provide
guidance for local governments within their jurisdictions. The KPMG report pointed out that
the traditional system of national physical development plans is too static and does not
provide the necessary policy context and flexibility to allow for changes in land use as
circumstances require.
26
November 26, 2010
As this suggests, a good spatial plan is dynamic. The McHardy report recommended that a
spatial plan should be reviewed every five years, but the use of a GIS system makes this
unnecessary, as the plan itself is continuously updated. It is still important to review the
underlying set of priorities from time-to-time of course; to ensure that they are still relevant
to the national needs (see the example below).
The KPMG report therefore recommended a single Planning Act that that would provide
transparency, accountability and due process, and that would be independent of political
influence (this would involve removing Ministerial discretion on individual development
matters, the creation of an independent appeal board process and provision for public
participation). This would be accompanied by a clear statement of national priorities, which
should incorporate principles of sustainability, coupled with a significant delegation of
planning to the local level (see Note 8 in Appendix 1). At the core of this process would be
what the KPMG report called a „dynamic Future Land Use Map‟, which would include any
Special Development Areas. The Future Land Use Map would set out zones, which would
define the kinds of uses permitted in each zone, and the kinds of proposals that would
have to be more carefully reviewed.
The zoning would control development in each area by regulating the use of land,
buildings and structures. This regulation, in addition to other standards, could include such
things as prohibited or permitted uses, environmentally sensitive areas, the location, height
and density of buildings, residential or traffic requirements, architectural design standards
and so on. Thus the development of a national spatial plan would permit real
decentralization of planning, as every local authority would be able to develop its own
development plan within the parameters of the national spatial plan. The current system of
development orders would be replaced by zoning bylaws.
The KPMG report argued that this kind of sound planning system, with transparency,
accountability and certainty, would encourage investment, and concluded that there should
27
November 26, 2010
be a single national planning agency, which would set out the statement of national
interest and ensure that local governments adhere to the provisions of the planning act.
4.2 A fully modernized planning system – improving and regulating land
development
The earlier sections of this report explain why it is important to ensure that the processes
of planning, development and environmental protection are far more coherent in future.
This requires that Jamaica adopt a modern planning system. It is recommended here that
this should be based on a national spatial plan (GIS-based). This would allow all important
features to be overlaid, with each relevant agency responsible for the data layer that
corresponds to its jurisdiction.
For example, the Water Resources Authority and the National Water Commission would
be responsible for maintaining the data layer that mapped Jamaica‟s water resources and
infrastructure, such as aquifers, pipes and pumping stations. The ODPEM would manage
the data layer that would identify the areas liable to flooding, landslide, and so on. Local
governments would be responsible for maintaining and updating the data layer that
showed the local development plan, with both current and planned roads, buildings and so
on18.
These would all be layers in the national GIS map, which would be maintained by NEPA.
Only approved agencies would be allowed to alter the data for which they were
responsible. The public would be able to read (but not alter) the map, accessing it via a
website that would also be maintained by NEPA, thereby allowing everyone to see where
development should and should not be permitted.
18
It would be helpful if the various arms of government would adopt the same planning divisions. At present,
police, health and local government boundaries, for example, do not necessarily coincide, which makes
cross-agency planning more complicated. There is also an issue as to the number of agencies required. For
example, it would help to solve capacity problems and also reduce overheads if there were fewer, larger
parishes. However, the proposals set out in this paper do not depend on these reforms. The converse,
however, is true; any programme of local government reform is more likely to succeed if all local and national
government services are properly knitted together with a national spatial plan.
28
November 26, 2010
With regard to physical development, land could be categorized (initially) under three main
headings.
Areas Zoned for Development
Some areas of land would be zoned for development. This might include, for example,
areas where there are no known hazards, which are not protected areas or have no
historical buildings, and which already had adequate water, power and transport
infrastructure and so on. These areas would offer a fast-track for proposals19, with minimal
processing and delays20.
‘No-build’ Zones
Other areas would be put completely off-limits to any permanent development (on the
grounds of environmental importance, geological instability, proximity to aquifers, threats to
public health, vulnerability to storm surge and so on).
Areas Zoned for Development with conditions
The third category of area would permit development, with certain reasonable conditions.
All proposals to develop in these areas would be examined to ensure that they complied
with the pertinent conditions. Some of the conditions (such as height restrictions in flight
paths) would be determined nationally, others (such as the need to blend in with existing
buildings) would be determined locally. These conditions would also be mapped as a data
layer.
This system could then be extended into more than three categories, if that would be
useful, once the basic framework had been established.
19
It would be necessary to pre-define the kind of development that would be permitted. For the purposes of
this report, it is assumed that this would include all routine requests for housing, light industry, tourism and
leisure developments; any exceptional or very large development proposal might still have to go to review.
20
The decision would then be based on the presumption of development, so that developers only need to
show that their proposal fits with the zoned land use and any conditions to be automatically granted
permission.
29
November 26, 2010
The advantage of this approach is that it would achieve multiple objectives. It would ensure
that valuable or vulnerable areas were strictly demarcated and protected, allow limited
government resources to be focused to best effect, permit better monitoring and
enforcement, simplify the application process and accelerate the processing of
applications for permits and licensing of developments, and thereby offer a far more
transparent and low-risk environment for developers.
It would also clarify the function of the different tiers and arms of government, as all would
operate with the same national spatial plan, with a clear hierarchy of planning levels.
Primary land zoning and the location of national infrastructure (such as highways, ports
and airports) would be planned and determined at national level. Parishes 21 will develop
their own detailed local plans within the parameters of the national spatial plan, and then
submit their local plans for approval by NEPA before they can become operational. After
the local plan is approved, the Parish Council will be responsible for managing subsequent
developments in their jurisdiction, and will provide annual reports to NEPA as to their
progress. These reforms would give local government a full role in the planning process,
which would be properly institutionalized and regularly monitored. Sector planning (such as
water and sewage) will operate within the parameters of both the national spatial plan and
the local development plan, and all operators will be obliged to notify NEPA as to any
significant changes.
4.3 Responding to changing priorities
One advantage of this approach is that it makes it relatively easy to implement national
developmental objectives, and also to respond to significant changes in priorities. For
example, a future Government might decide to make „adapting to climate change‟ a new
policy priority. This would then be translated into guidelines to discourage any further
building in areas likely to be threatened by rising sea level. It would also require, therefore,
the identification of alternative sites for housing and development. Additional criteria (such
as zero-carbon houses) could be simultaneously built in to the permitting process, and
21
Some parishes do not have strong planning capacity. In such cases, it might be necessary to coordinate
activities at county level.
30
November 26, 2010
further amendments (such as mixed residential and light industrial developments to
minimize the need for transport) adopted at the local planning level. So the national spatial
plan could be rapidly amended at multiple levels to reflect the new priorities. As this
suggests, a spatial plan is dynamic and flexible, unlike the traditional physical plan which is
more rigid and harder to amend.
5 The Environmental Regulatory Authority
The purpose of this section is to identify and set out the aims, functions and operations of
the proposed Environmental Regulatory Authority (ERA) for approval and implementation.
It will define the working relationships between the regulatory agencies and other agencies
of government that have responsibility for the environment in order to ensure that there
are no duplications, gaps and uncertainties between the various roles and functions. The
following areas will be discussed in respect to the establishment of the ERA:

Viable and non-viable combinations of roles.

The assigned roles and responsibilities of the lead agencies.

The objectives of the ERA.

The organizational design.

Financial, logistical and implementation considerations.
5.1 Viable and non-viable combinations of functions and roles
The general area of planning and environmental regulation resolves into a number of
necessary functions. Some of these can be bundled together, and given to one agency,
while others must be kept separate. For example, it is possible for one agency to be in
charge of both planning and the issuing of permits and licenses, as there is no conflict
between these roles, and it would increase the speed and efficiency of operations if one
agency can issue permits on the basis of its own planning guidelines. However, it is not
good practice for one agency to both operate and regulate, as otherwise an agency that
31
November 26, 2010
breached its own standards would have to fine itself (or lower the standards to the level
that it was capable of achieving)22.
It is therefore important to first identify the functions, then to determine which of these can
be bundled together. It is also desirable, of course, to create as few separate organizations
as possible in order to reduce costs and overlaps23. The main functions are as follows:

Policy

Planning

Issuing permits and licenses

Administration

Advisory

Public consultation

Environmental management

Education and outreach

Management (of national parks, protected areas and species)

Operation (of environmental facilities)

Standard-setting (for air and water quality etc.)

Inspection and compliance monitoring

Enforcement

Prosecution
The important divisions between these functions are as follows:

Policy and operations. It is an important principle that Ministers and elected
members of Parliament should set policy, but should not interfere in operational
decisions. This is to ensure that operational decisions are made on a basis that is
technically sound and politically neutral, and helps to prevent corruption.
22
This mistake was made in the UK; where it was temporarily possible for one organization to operate water
and sewage treatment plants and set the water quality standards to which it had to adhere; this has now
been corrected with the proper separation of these functions.
23
This is also to ensure that these reforms are congruent with the Government‟s „one stop shop‟ project,
where all government services are to be properly integrated and made available through one access point
(office or website).
32
November 26, 2010

Operation and regulation. As explained above, it is not good practice for one
organization to both operate and regulate.

Advisory and regulation. An organization that gives advice (on environmental
management, for example) to firms can only be effective if firms feel that they can
discuss their problems honestly. This is unlikely to happen, however, if the firms
suspect that the information will be handed over to the enforcement arm and used
to prosecute them. So these functions must also be kept separate24.
This still leaves several possible groupings into which these functions can be organized.
For example:

Policy

Planning, issuing permits and licenses, administration, education and outreach,
public consultation

Management (of national parks, protected areas and species)

Enforcement, prosecution
There are several functions that could be located in more than one place. For example:

Standard-setting (could go with either planning or enforcement)25

Inspection and monitoring (could go with either planning or enforcement)

It is also possible that the management of national parks, protected areas and
species might be subsumed under the same agency that controlled planning,
although there is a risk that this might make the agency‟s remit too broad.
There are also some functions that could be supplied by the private sector, or with an
appropriate division between public and private sector organizations. For example, the
24
In Danish regions, such as Storstrøms Amt, these functions are carried out by different divisions inside one
body, but there are „Chinese wall‟ rules and procedures to prevent information being transferred between the
two divisions.
25
Note, however, that there several points at which there is a need to set standards. For example, there are
standards for urban design and building control, which are embodied in the planning consent system. There
are also technical environmental standards, such as the permitted pollution levels in air and water quality,
and process standards, such as BS EN 14001 or EMAS, that measure environmental performance. A
number of different agencies will therefore be involved in „setting standards‟. The reference here is to
technical environmental standards.
33
November 26, 2010
public sector might maintain oversight and ensure quality control of a service that was
delivered by the private sector. In some cases, firms could be invited to compete to supply
services; in other cases, a monopoly or preferred supplier might be the only realistic option
(given Jamaica‟s small size), but the important principle here is that the public agency
would still set and enforce the standards required, and do so in an independent and
impartial manner. These include:

Operation (of environmental facilities)

Advisory services (on e.g. engineering, technical or management issues)

Environmental impact assessment

Environmental management
It is also desirable to minimize the number of organizations involved, in order to reduce
overheads and the risk of duplication, but the need to keep certain functions separate
means that the number cannot be reduced below three. The following groupings are
therefore recommended26:
1. Policy
2. Planning, issuing permits and licences, inspection (to ensure that people comply
with the conditions in their permits) administration, education and outreach, public
consultation, advisory (limited to general recommendations27), management (of
national parks, protected areas and species28), ensuring quality control with regard
to the operation of environmental facilities, environmental impact assessment 29 and
environmental management.
3. Standard-setting, monitoring, enforcement, prosecution.
26
Please note that this is for discussion, some other permutations are possible.
This is because the giving of specific professional advice can entail assuming the legal liability for any
directly-related consequences. It would not be appropriate for a regulatory agency to assume this
responsibility, nor to grant indemnity against any failure of its own advice.
28
This would include bio-diversity protection, game wardens and hunting licenses.
29
This is to ensure, for example, that anyone offering environmental impact analysis or environmental
management services has the appropriate professional qualifications and/or can operate systems to the
relevant ISO 9000 or other applicable standard.
27
34
November 26, 2010
The division of responsibilities and tasks between the agencies described in the next
section is based on this proposed division of functions.
5.2 The roles and responsibilities of the lead agencies
There will be three lead agencies, each with a clear role and set of core activities. These
are detailed below. There will also be a strengthened role for local government, which was
explained earlier.
AGENCY
ROLE AND FUNCTION
OPM30
Responsible
for
setting
strategic
direction and determining policies and
goals
for
development
and
the
environment.
NEPA
Responsible for the national spatial plan,
administration,
development
control,
quality control, park management etc.
ERA
Responsible
for
setting
technical
environmental standards, monitoring and
enforcement.
Local government
Responsible for local planning guidelines
and
control,
working
within
the
parameters of the national spatial plan
5.3 OPM - Strategy and Policy
The OPM will be responsible for setting strategy and for policy analysis and development,
with different divisions of OPM involved as appropriate. Ministry officials would, of course,
consult the technical staff in NEPA and the ERA. The tasks include:
30
Note that the Gazette of July 2008 states the subject matters for environment, planning and development
under OPM; this allocation of responsibilities will now have to be reviewed.
35
November 26, 2010

To advise Ministers as to the costs and benefits of acceding to particular
international treaties on the environment.

To advise Ministers as to the environmental implications of treaties and protocols
addressed to other areas, such as trade.

To advise Ministers as to the costs and benefits of particular policy options, such as
a comparison between command-and-control regulation versus market instruments
to solve a given environmental problem.

To advise Ministers on cross-cutting issues, such as the implications of trade
liberalization for land use, the structure of employment and so on.

To undertake regulatory impact assessment, to assess the benefits and costs of
each proposed regulation or other policy intervention31.

To assist with the drafting of relevant legislation.

To liaise with international treaty secretariats, ensure compliance with treaty
obligations and generate any reports required and so on.

To ensure policy coherence, and that developmental and environmental objectives
are aligned.
Some of these functions are already carried out by the Environmental Management
Division (EMD), but some of them would require an expansion of the current programme.
See Note 9 in Appendix 1.
5.4 NEPA - Planning and permitting
NEPA would have a significantly expanded role in this regard. It would be responsible for
developing, maintaining and operating the national spatial plan, along with all necessary
administrative support functions. This includes:

Maintaining and updating the national spatial plan. This should explicitly state the
nation‟s primary economic, social and environmental objectives, and link these to
31
The UK government recently proposed to give each Ministry a regulatory „budget‟, which would oblige
them to assess the economic impact of each new regulation and deduct this from their total allocation. Any
Ministry that exceeded its three-year budget would have to offset the cost of new regulations by reforms to
existing rules. The goal is to ensure that the total burden of government does not increase.
36
November 26, 2010
specific development goals, land-use priorities and guidelines for the coordination
and sequencing of particular developments32.

Establishing the primary categorization of land under the three headings described
earlier, and developing further categories if necessary.

Checking all local plans to ensure that they comply with the primary land zoning and
developments of national infrastructure set out in the national spatial plan.

Checking all major applications33 for compliance with the national spatial and
development plans. In its formal response to each application, NEPA will always
state its reasons for accepting, rejecting or requiring modifications to a proposal.

Processing applications permits and licenses quickly and efficiently34.

Setting and updating the procedures and standards on which the permits and
licences are based. This in turn would involve keeping abreast of international best
practice with regard to the environment and related areas, and of new
environmental management concepts, such as cleaner technology and industrial
symbiosis. This information would be reflected (in due course) in technical
standards and requirements, and in the teaching and training programmes.
The operations of NEPA with regard to the maintenance of the national spatial plan and
land zoning will be specifically protected from inappropriate interference by the political
directorate or by Members of Parliament. In keeping with the principles of justice, however,
there will be provision for appeal to the courts and/or a tribunal. Any individual or
32
It is possible to maximize the utility of land use if particular applications are encouraged in the right order.
For example, urban housing effectively sterilizes land for mining and mineral extraction, but worked-out
quarries can be graded, landscaped and developed for housing or industrial development. A more common
example is that a particular location might be considered unsuitable for housing until the development of a
new highway makes the area more accessible. The orderly and successful development of a community will
therefore depend on both the spatial and temporal coordination of public expenditure in infrastructure (such
as water and sewerage, roads, police and fire services) along with private investments in the development of
land. In some circumstances, it might be necessary to consider the reversibility as well as sequencing of
particular changes. If a government decided that food security might be a higher priority in future, for
example, it might take into account the fact that agricultural land that is developed for industry and housing is
effectively lost to agriculture forever, but farm land that is converted into a golf course can always be
ploughed up and used again for agriculture.
33
One of the decisions that will have to be made in phase two of this study is the appropriate division
between the three main types of applications (planning, environmental and building).
34
NEPA will have to maintain the in-house specialist skills needed to manage the permitting process for
diverse applications (including housing developments, ports and airports, conch harvesting and so on).
37
November 26, 2010
organization that feels that they have been seriously disadvantaged by a land zoning
decision will have access to a proper appeal procedure.
5.5 NEPA – Advisory, Outreach and Training
NEPA would have a significantly expanded role in this regard. It would be responsible for
environmental outreach, advisory assistance and training and educational workshops for
sectors of industry, schools and so on. The programmes for the public and for schools
would promote awareness of the ecological systems of Jamaica and their importance to
the social and economic life of the island, as well as practical environmental ethics and
codes of conduct, the workshops for businesses would aim to demonstrate that good
environmental practice can also make good business sense.
One particularly important role is to assist private firms and public sector organizations to
solve their environmental problems. This is for a number of reasons:

Many businesses, especially Small and Medium Enterprises (SMEs), are not aware
of much of the applicable environmental legislation that could affect their business.
NEPA will therefore operate an outreach programme to ensure that businesses
know and understand both the problems and the solutions35.

Few businesses in Jamaica have the capacity to keep abreast of pending changes
in key export markets. The European Union, for example, gives advance notice of
pending changes in environmental requirements and standards (c.f. the permissible
levels of pesticide residue), but this information is rarely acted on by exporters,
because they do not keep track of the relevant sources. NEPA will therefore ensure
that exporters are aware of any pending changes in environmental regulations and
standards in major export markets36.
35
As before, it is important to ensure that the proposed business advisory role is integrated with the
Government‟s „one stop shop‟ project, so that business can continue to obtain all necessary advice and/or
referrals through one access point.
36
The Ministry of Industry, the Ministry of Foreign Affairs and Foreign Trade and the Caribbean Regional
Negotiating Machinery all have some responsibilities in this area as well, so it would be necessary to have a
clear allocation of tasks between these organizations.
38
November 26, 2010

There are a number of relatively new concepts, such as cleaner technology and
industrial symbiosis, which can allow businesses to become more competitive and
environmentally cleaner by eliminating waste. Few businesses in Jamaica are
aware of these relatively new concepts. NEPA will therefore ensure that Jamaican
firms learn about these new solutions and can access the necessary skills to
implement them.

It is important to ensure that good environmental solutions are both developed and
disseminated. To that end, NEPA will organize exchanges of information as to
environmental best practice, environmental management and quality control
systems amongst firms, research institutes, environmental consultants, local and
central government agencies, officials and other advisory and regulatory bodies.

NEPA will liaise with architects, builders and engineers with regard to the energy
efficiency and environmental impact of homes, offices, hotels, factories and
transport systems. This is to ensure compliance with the building codes and
standards that will be embodied in the development approval process, especially
with regard to the certification of drawings and plans, but also to ensure that the
construction industry is aware of current best practice in these areas37.

NEPA will liaise with Environmental Impact Assessment professionals regarding the
soundness of EIAs conducted and recommendations made as part of the
development approval process38. NEPA will monitor the EIA process in order to
ensure that EIAs are delivered to a high standard, to ensure that the public‟s right to
know is protected and that any required actions (such as mitigation measures or
conditions to be included in permits/approvals) are taken by the developer39.
There are two important caveats:
 First, the advisory and training division can only give generic advice. As noted
earlier, this is because the giving of specific technical advice (by, for example, a
37
Such as, for example, the zero-carbon homes and offices being developed in the UK, USA and France;
buildings that are so energy-efficient that they require no external input of energy at all.
38
NEPA already has a procedure regarding EIAs and public presentations, so it would not be necessary to
establish an entirely new system; only to upgrade the existing process.
39
One of the decisions that will have to be made in phase two of this study is whether the monitoring of
mitigation measures or conditions should be built in to the permitting process or the EIA process.
39
November 26, 2010
consulting engineer or architect) can entail assuming the legal liability for any
directly-related consequences. It would not be appropriate for a regulatory agency
to assume this responsibility, nor to grant indemnity against any failure of its own
advice. The division will therefore have to develop a list of approved environmental
consultants to whom they can refer businesses for technical solutions to their
problems.

Firms must feel able to discuss their environmental problems with the advisory and
training division of NEPA, and disclose relevant details of their current operations.
This might well include situations where the firm is in breach of environmental
regulations, either knowingly or unknowingly (i.e. they might or might not be aware
of the relevant regulations and/or standards, and that they are in breach). It is
therefore essential to allow these discussions to remain confidential; information
disclosed should not be given to the ERA (unless there is a clear and imminent
threat to human life)40.
5.6 ERA - Monitoring and enforcement
The new ERA would have the primary responsibility for environmental policing, compliance
monitoring and enforcement. The ERA would be specifically empowered to police both
public and private sectors. State-controlled agencies have been, in some cases, among
the worst environmental offenders, so this serious anomaly must end.
It is strongly recommended that the ERA adopt a risk-based approach, and focus their
efforts, at least initially, on the relatively small number of individuals and organizations that
cause the most serious environmental damage, rather than spreading their limited
resources widely and ineffectively41. One obvious priority, for example, is to focus on those
40
Another decision that will have to be taken in phase two of this study is the appropriate procedure to follow
if a firm has been issued with a permit or licence by NEPA and is in breach of the terms. One possibility is
that if the firm discloses this information, in good faith, it might be given a fixed period of time (perhaps 3
months) to remedy the situation, and failure to do so would then trigger prosecution.
41
It is also true that a few high-profile prosecutions and convictions of the most serious offenders will send a
strong message to the rest of the community and encourage the minor and casual offenders to mend their
ways, thereby removing the need to prosecute many people.
40
November 26, 2010
individuals and organizations known to be operating without a permit or in clear violation of
a permit, as people with a cavalier attitude to the law are likely to have an equally
dismissive attitude to the environment. As per the recommendations of the RIA report,
ERA staff must have police support whenever necessary, which means that the ERA must
also have an institutional relationship with the JCF and Coastguard.
It is important that decision-making, enforcement and justice are all swift and effective, and
that fines or other sanctions are commensurate with the scale of the damage. Unduly
lengthy court processes, pre-trial litigation or repeated appeals (when used as a tactic to
delay the commencement of trials or the enforcement of rulings) and inadequate fines can
completely undermine enforcement. Available sanctions should not be confined to fixed
fines, but should where appropriate include full remediation or restoration at the
perpetrator‟s expense42.
5.7 Cross-cutting regulatory functions
NEPA and the Ministry of Health may retain particular regulatory functions, i.e. where there
is no apparent advantage to reassigning these functions to another agency. This should be
reviewed, however, after the ERA has been in operation for a year in order to see whether
any further reallocation of responsibilities would give better results.
In the interim period, therefore, NEPA might continue to regulate the National Solid Waste
Management Authority (NSWMA) with respect to the construction and operation of landfills
and dumpsites, and the National Water Commission (NWC) with regard to the construction
and operation of sewage treatment plants. It is likely that the Ministry of Health will also
retain its current regulatory responsibility for environmental health and safety (public
health)43.
42
There is a precedent; the Beach Control Act (2004) contains non-monetary penalties, such as
rehabilitating the beach.
43
Any change in this regard is not recommended. The current position is clear and logical, the alternative is
likely to be worse, and any removal of responsibilities from the Ministry of Health would require amending the
Public Health Act, an onerous task with no apparent benefit.
41
November 26, 2010
The responsibilities of the ERA will be clearly defined, with particular attention to the need
to ensure policy coherence, and to eliminating costly gaps and overlaps. The relations
between these institutions will be managed, initially, through agreements or memoranda of
understanding (MOU). These agreements will eventually be formalized in any necessary
changes in the legislation governing the different agencies.
It is important to note, however, that one of the main reasons why NEPA was not able to
operate as effectively as intended was that a similar set of ad hoc arrangements were
never properly ratified. It is therefore essential to ensure that all key stakeholders are fully
committed at the outset to seeing this process completed.
5.8 The objectives of the ERA
The ERA will have primary responsibility for environmental policing, compliance monitoring
and enforcement. It will monitor and protect Jamaica‟s natural environment and
biodiversity, and protect public health from environmental pollution. It will be independent
and impartial. It will:

Establish and maintain transparent, consistent and objective standards for the
management and regulation of the environment in accordance with international
best practice in these areas.

Monitor compliance with these standards. This will include monitoring the
performance of both public and private sector organizations to ensure compliance
with zoning, national spatial plan and operational standards. With regard to public
sector organizations, this will include those responsible for solid waste disposal,
water and sewage treatment and discharge, construction, dredging and all other
operations with significant environmental and/or health implications.

Respond to complaints from the public as to environmental breaches perpetrated by
individuals, developers, other firms or state agencies.

Impose sanctions as appropriate (see below).
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November 26, 2010
The ERA will have the authority to deploy a range of sanctions and other remedial
measures. These will include prosecution, charges for remediation/restoration and, when
appropriate, punitive fines for individuals or organizations that deliberately or through gross
negligence cause serious environmental damage. The ERA will be given the power to
require, where appropriate, full restoration of the damaged site at the perpetrator‟s
expense.
However, the ERA will also be given limited discretion to determine whether a more
collaborative, non-adversarial or conciliatory approach would be more cost-effective in
particular instances. For example, if the ERA determined that a particular breach was the
result of simple ignorance or error, they would have the option to require the perpetrator to
attend the environmental management training workshops run by NEPA. In such cases,
the ERA would then be obliged to monitor the subsequent behavior of the individual or firm
carefully for a set period44 to ensure compliance, and any repeated offences would then
attract a more severe penalty45.
With regard to public agencies, it is important to note that the National Water Commission
is already regulated by the Office of Utilities Regulation with regard to the quality of its
service, and by NEPA and the Ministry of Health with regard to the construction and
operation of sewage treatment plants. These arrangements will remain in place. The ERA
will be concerned, however, with any environmental or health impacts which could arise if
there was a serious failure with regard to the proper treatment of either potable or waste
water, and would have the option to prosecute the individuals responsible if this was
determined to be a case of culpable negligence.
Similarly, the National Solid Waste Management Authority is regulated by NEPA with
regard to the construction and operation of landfills and dumpsites. This arrangement will
44
This should be not less than three years.
This is modelled on the regulatory approach in the Netherlands, where firms that exceed their discharge
consent limit to inland waters may be given the option of either (a) making a binding commitment to research
and solve their problem or (b) being prosecuted. Firms that chose (a) have to give quarterly reports on their
progress, and any firm not acting in good faith is still liable for prosecution. The current equivalent in Jamaica
is the compliance plan component of air quality control.
45
43
November 26, 2010
also remain in place. The ERA will be concerned, however, with any environmental or
health impacts which could arise if there was a serious failure with regard to the proper
collection, handling and treatment of domestic, industrial, infectious or hazardous waste,
and would have the option to prosecute the individuals responsible if this was determined
to be a case of culpable negligence.
5.9 Specific subject matters to be placed under the ERA46
 Air and water quality control
 Beach control and coastal zone protection
 Watershed protection
 Marine conservation
 Pollution prevention
 Pollution monitoring
 Biosafety
 Wildlife protection
 Hazardous chemicals management
5.10 Legal Implications
The establishment of the ERA, the development of the national spatial plan and the other
changes recommended in this report will require new Statutes and changes to a number of
existing laws, regulations and policies, including the following:

The Natural Resources Conservation Authority Act.

The Town and Country Planning Act

The Land Development and Utilization Act

The Wildlife Protection Act
46
Note that this proposed list is provisional, and may be subject to change in phase two of this project. There
are issues, for example, as to the Ministry of Health‟s responsibility for drinking water quality and the Water
Resources Authority‟s responsibility for the national water resources. Similarly, the Ministry of Health also
has responsibility for some pollution control measures under the Public Health Nuisance Regulations. These
responsibilities would have to be either reassigned or reconfirmed.
44
November 26, 2010

The Beach Control Act

The Watersheds Protection Act

The Jamaica National Environmental Action Plan

Policy for Jamaica‟s System of Protected Areas
5.11 Institutional and Reporting Arrangements
The ERA will be an independent authority with veto powers, similar to the Office of the
Utilities Regulation (OUR), with the following characteristics:
 There will be a clear distinction between policy and operational issues. The portfolio
Minister will have ultimate responsibility for policy, but will not intervene or be in any way
involved in operational issues, which will be the sole responsibility of the Director
General.
 The operations of the ERA will be specifically protected from inappropriate interference
by the political directorate.
 Legitimate decisions taken by the ERA in properly fulfilling its mandated regulatory
duties will not be subject to reversal by the political directorate.
 The ERA will provide a quarterly performance and budget report to OPM and a
comprehensive annual report to Parliament which will detail the ERA‟s strategic goals
and progress towards its targets and objectives.
5.12 Management structure
The ERA will be governed by an Independent Commission, with a Chairman. The
Commission will be responsible for ensuring that the ERA is properly managed, meets its
strategic goals and performance targets, and remains strongly focused on results. The
Commission will also be responsible for ensuring that the ERA is protected from any
political interference, attempts to influence officers or pervert the course of justice. There
will be clear membership criteria to ensure that the members of the Commission are
selected on the basis of their relevant technical expertise, training and qualifications,
experience, integrity and managerial competence, so that they can properly assess the
legal and technical aspects of the more complex environmental issues that come before
45
November 26, 2010
the Commission. The Commission will ensure that all decisions taken by the ERA are
impartial and based on a technically sound consideration of the legal and technical
issues47.
A Director General will be the executive head, and be responsible for strategic
programming, human resource and budget management. The Director General will ensure
that the work-plans and objectives set by the Commission are met in the most efficient and
effective manner.
There will be three major divisions, dealing with Standard and Regulation, Enforcement
and Monitoring, and Research and Information Management. The Management Structure
is shown in Appendix 2.
5.13 Specialist skills
The staff of the ERA will be recruited from people with relevant qualifications, training and
experience in both the legal and technical aspects of environmental regulation, including
law enforcement. Other relevant specializations will include:

Environmental engineering

Forensic chemistry

Environmental economics

Dispute resolution and mediation

National and international environmental law

Environmental health, safety and protection

Sustainable development
47
It may be necessary to further strengthen the Board with a Scientific Advisory Committee, which is the
current practice in the UK, Sweden, Australia, Germany and Switzerland. The role of the Scientific Advisory
Committee is to keep the Board abreast of any important new developments and innovations.
46
November 26, 2010
The ERA must have access to high quality, laboratory resources, capable of conducting
the forensic analyses required to support any ensuing legal action. This is essential for
building and supporting a case in contested enforcement proceedings.
It is essential that the ERA have a strong emphasis on teamwork, as any particularly large
or complex case is likely to require all the pertinent skills within the organization and the
deployment of many officers.
5.14 Organizational reviews
As routine good management practice, the ERA will annually review its role and structure,
recommend any necessary changes, and identify and fill any gaps in its internal
professional expertise.
The ERA will consider in this annual review whether it would be more efficient or costeffective to decentralize any particular function to specialist sector agencies or to a local
authority, with the proviso that the ERA will retain ultimate responsibility and oversight, and
that the maintenance of the necessary environmental protection, with effective monitoring
and enforcement, must be the paramount consideration.
5.15 Financial considerations
There will be appropriate funding allocation for start-up and for the continuous operation
and maintenance of the ERA. This will include allowances for vehicles and fuel for rapid,
unannounced site inspections, chemical-resistant safety suits, boots, helmets and other
material for entering contaminated sites, sampling and testing equipment.
Significant funding will also be required for offices and for secure communications
equipment. The ERA must have an effective information system, with a secure computer
network with wireless links to handheld PCs, to allow for field assessment and data
gathering, and for storing, analyzing and using data for decision-making, including site
contamination issues, as well as planning and performance assessment. Such systems
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November 26, 2010
must provide textual information (legislation, administrative forms, activity reports, state of
environment reports and so on), all for the tracking and cross-checking of administrative
information (including statistical reports, sampling and laboratory analysis reports,
inspection reports, non-compliance responses, etc). These systems will also be linked to
the information systems of other government environment agencies.
There is an important issue as to whether the ERA should be authorized to collect and
spend the monetary penalties in addition to its core funding which will be provided from the
state budget. The issue here is whether including penalty fees as a source of revenue
could encourage the ERA to maximize its revenues rather than ensuring compliance. The
recommendation here, therefore, is that any fines should be treated as public monies
subject to fiscal control and be collected through the tax administration department of
government. However, if the penalty levied is to ensure full remediation of a damaged site,
then the funds raised must be hypothecated, i.e. used for the purpose for which the fine
was imposed (such as environmental remediation), rather than disappearing into general
revenue. The financial considerations, and on the start-up and first year operational costs
are shown in Appendix 3.
5.16 Implementation plan
The implementation plan for the new regulatory authority will be phased in over an
appropriate transition period. The calculation of the duration required will take account of
the role of the proposed new ERA and the scope of the actions to be undertaken, the time
needed for the associated restructuring of NEPA, the time needed to establish the national
spatial plan, and to establish the necessary MOUs (or policy directives) and links with
other organizations, as well as the costs associated with each of these steps. A phase-in
plan will also be developed for the new legislation that will be required.
Part of these pre-implementation actions will include an official publication to explain the
new arrangements and requirements, and assistance for public and private sector
organizations that need to know, in more detail, how they will be affected by the new
arrangements.
48
November 26, 2010
It is the expressed wish of the Prime Minister that the ERA be established in time to
commence inspections and other operations by April 2009. However, it is anticipated that a
core structure will be in place by January 2009. Other dates will therefore be calculated
with this as the reference point. The implementation plan, including the phases and dates,
is shown in Appendix 4.
49
November 26, 2010
6 Conclusions and Recommendations
The goal of the various reforms proposed in this report is to allow Jamaica to achieve a
combination of faster economic development and rising environmental quality. The various
measures proposed are intended to ensure that valuable or vulnerable areas are strictly
demarcated and protected, with better monitoring and enforcement, that limited
government resources are focused to best effect, and that the country can offer a more
transparent and risk-free environment for developers. The various measures proposed are
also intended to clarify the function of the different tiers and arms of government. The three
key steps recommended in this report are as follows:
1. To establish the proposed Environmental Regulatory Authority and to reassign
responsibilities accordingly.
2. To develop a National Spatial Plan, with primary land zoning and a clear hierarchy
of planning levels, and to give NEPA the primary responsibility for developing,
maintaining and updating the national spatial plan.
3. To give NEPA a significantly expanded role in helping to resolve environmental
problems, via education, outreach, advisory assistance and training workshops on
topics such as cleaner technology and industrial symbiosis.
Thus NEPA‟s role in monitoring and enforcement would be transferred to the ERA. As a
specialised, skilled agency, focused on the most serious offenders, the ERA is likely to be
significantly more effective in this regard. This would allow NEPA to focus on its expanded
role in planning and in resolving environmental problems.
The efforts of the two agencies will therefore complement each other. As the ERA
becomes increasingly effective, more businesses are likely to turn to NEPA‟s advisory
section to request assistance in solving their environmental problems, while NEPA‟s new
role in managing the national spatial plan is going to start to reduce the number of
environmental problems in the most cost-effective way; i.e. by good planning.
50
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6.1 Full integration
All parts of this new arrangement must mesh properly if it is to deliver the full range of
developmental and environmental benefits. Consider the example, given earlier, of
adapting to climate change:
1. OPM would determine that the implications of climate change are extremely
serious, and that adaptation must become a new national priority. This new policy
would be explained to NEPA, the ERA and local government, as well as the utilities
and other stakeholders.
2. NEPA would then review the national spatial plan, determine which areas might
have to be sacrificed to the rising sea, calculate the amount of land that will have to
be made available for the new settlements, identify safe areas and amend the
spatial plan accordingly. This would then immediately be reflected in the permitting
and inspection process to ensure that all new housing was going into designated
safe areas.
3. The local authorities would now be working with the new national spatial plan and
adjusting their local plans accordingly. They would control the mix of housing,
industry, retail, schools, clinics, recreation parks and so on in the new settlements,
working within the broad parameters of the new national policy, and ensure that
these plans were properly followed.
4. The ERA, in the meantime, would be policing the sacrificed areas to ensure that
people did not attempt to rebuild, and monitoring the new-build areas to ensure that
all proper environmental procedures were followed.
This integrated approach will deliver a range of important social, economic, health, safety
and environmental benefits for the people of Jamaica. It is therefore recommended that the
Government take the necessary steps to:
51
November 26, 2010

Establish the proposed ERA.

Initiate the development of the national and local spatial plans and the initial zoning
of land.

Reassign the responsibilities for planning and regulation, as described above.

Draft the necessary MOUs (or policy directives) to establish the working
relationships between the various agencies involved.

Prepare the necessary legislation to formalize these changes.
52
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Appendix 1 - Notes
Note 1
Large dust particles are trapped in the nose, but particles smaller than 10 microns are
inhaled directly into the lungs, then penetrate and damage lung tissue. Very small
particles, less than 0.1 microns, can pass through the lungs directly into the bloodstream.
Air-borne particle pollution has been linked to increased mortality in infants, increased
rates of death from respiratory and cardiovascular disease, and increased severity of
asthma attacks, especially among children. Most of these small particles are the result of
some form of combustion; power stations are a major source of sulphate particles, and
vehicle exhausts are a major source of nitrate particles. It is likely that badly-maintained
vehicle engines contribute significantly to the level of asthma in Jamaica, which has
serious consequences for families and for the health budget.
Note 2
The McCalla report noted that in addition to its statutory framework, the work of NEPA was
further guided by over a dozen other policies and plans. These included:

Jamaica National Environmental Action Plan (JANEAP) 1999-2002

Policy for Jamaica‟s System of Protected Areas – 1997

National Biodiversity Strategy and Action Plan

Watershed Management Policy (Draft)

Beach Policy for Jamaica (Draft)

Environmental Management Systems Policy and Strategy (Draft)

The National Environmental Education Action Plan for Sustainable Development

Water Sector Policy, Strategy and Action Plan

National Forestry Management and Conservation Plan

Various Development Orders, the Developers Manual and general planning policy,
including energy policy

Other guidelines from the Government of Jamaica
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November 26, 2010
There were also a number of other agencies and legislation that directly affected NEPA‟s
areas of responsibility. These included:

The Housing Act whereby the Minister/ Ministry of Housing can act as “corporation
sole”, without any regard to other mandates.

The Urban Development Act, which gave the UDC control over “UDC lands”.

The Building Act, which was administered by the Parish Councils.
Note 3
At the time of the RIA study in 2006, NEPA also had multiple divisions and allegiances,
with five divisions and twenty branches, and affiliations to a large number of other
Government agencies. For example, the McCalla report noted that the NRCA‟s Technical
Review Committee (TRC), along with the other agencies that might have to be consulted
on particular issues, comprised a total of sixteen agencies of government with
responsibility for particular aspects of various matters related to environmental
management, including the following core members:

Environment Health Unit; Ministry of Health

Jamaica Bauxite Institute

Mines & Geology Division

Ministry of Local Government & Environment

National Works Agency

Water Resources Authority
The agencies that might be consulted on particular applications or issues included the
following:

Civil Aviation Authority

Jamaica National Heritage Trust

Jamaica Public Service Co. Ltd

National Irrigation Commission, Ministry of Agriculture

National Land Agency

National Water Commission
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November 26, 2010

Office of Disaster Preparedness and Emergency Management

RPPD, Ministry of Agriculture

Urban Development Corporation
In addition, the policy on protected areas had included co-management arrangements with
NGOs.
Inter-agency cooperation will, of course, always be essential, as many of the matters for
which NEPA is responsible are inextricably linked to responsibilities of other Agencies.
Consider the following examples:

NEPA are responsible for watershed management, but watersheds cannot be
properly managed without the active cooperation of the Forestry Department (who
are responsible for forest reserves and tree planting programmes), the WRA (who
are responsible for water resources and planning), environmental health officials
(water quality), agriculture (which is both a major consumer of water and a source of
water-borne pollutants) and so on.

Similarly, NEPA is responsible for coral reef management (coral is protected under
the Endangered Species and WLP Acts), but one of the main sources of pressure
on the coral is over-fishing, and fishing is the responsibility of the Fisheries Division.

With regard to air quality standards; one of the main contributing factors is vehicular
emissions which, in some cases, will be dealt with by the police.
So there is no disagreement about the need for inter-agency cooperation. The issue is
about the speed of decision-making, as applications that have to be sent out to multiple
agencies for review can (and do) incur very lengthy delays if the review process is not wellmanaged.
55
November 26, 2010
Note 4
The McCalla study assessed NEPA‟s performance with regard to the rate at which
applications were processed (the study period was from April 1st, 2003 – March 31st,
2005). The main findings were as follows:

In 2003 NEPA processed 40% of all planning and 31% of all subdivision
applications within 90 days, so 60% of planning applications and 69% of subdivision
applications took longer than 90 days. NEPA received 44 applications for
environmental permits that year, and processed 24 of them, of which just 4 were
processed within the stipulated 90 days. This contrasts markedly with the CITES
applications; 55 were received and all them were processed within the 90 days.
This was mainly because the processing operation was more direct in the section
that handled CITES applications.

In 2004-5 NEPA received 2,257 applications and processed 1,819 (81%) of them,
between April 2005 and March 2006 NEPA received 2,637applications (a 17%
increase) and processed 2,182 (83%) of them, but half of these took longer than 90
days (source: NEPA Annual Report, 2005).

Most of the applications concerned planning and subdivision matters. The largest
category of applications in 2005 was for restrictive covenants, followed by
subdivisions, then environmental permits.
This flow of applications represented a very significant load on NEPA‟s relatively slender
resources, with the volume and the complexity of the applications increasing markedly.
With this increasing workload, it is not surprising that NEPA was obliged to focus more on
development permitting and less on planning and environmental management.
Note 5
With regard to NEPA‟s visibility and reputation, the Residential Consumer End Use Survey
in 2006ix asked respondents whether they had heard of NEPA, whether they had used its
services in the past, and whether they thought it was doing a good job of protecting the
environment. Some 53.0% of respondents knew of the agency, but only 1.8% had utilized
the services provided, while some 46.1% felt that NEPA was not doing a good job in
56
November 26, 2010
protecting the environment, while 43.7% thought that it was performing adequately and
10.3% didn‟t know. This indicates that NEPA does not have very strong public support.
Question: Do you think NEPA is doing a good job in protecting
the environment?
Yes
43.7%
No
46.0%
Yes
No
Don‟t Know
Don‟t Know
10.3%
Source: Residential Consumer End Use Survey
Note 6
The McCalla report recommended rapid resolution of the legal anomalies, with the repeal
of the Land Development and Utilization Commission Act as “not consistent with the
overall aims and objectives of NEPA and with environmental management and sustainable
development principles” (the RIA study made a similar recommendation), and the
establishment of three acts; a National Environment and Planning Agency (NEPA) Act, a
revised Town and Country and Planning Act, and an Environment Act. It is important to
note, however, that the McCalla report considered and specifically rejected the concept of
a single unitary authority that centralized all planning and environmental management
functions, suggesting instead that these functions would be better performed if split up and
made the primary responsibility of specialist agencies. The McCalla report therefore
recommended that the government should enact both a revised Town and Country
Planning Act and a revised Environment Act.
57
November 26, 2010
The original idea was, of course, to complete the unfinished merger with the introduction of
a National Environment & Planning Act. Draft drafting instructions were drawn up, but did
not go forward into the actual drafting stage .Various meetings with stakeholders indicated,
however, that there were still a number of serious reservations. The McCalla report lists,
for example, some of the main concerns raised by Parish Councils and other stakeholders
as followsx:

It was noted that the promulgation of a NEPA Act would necessitate changes in the
existing legal mandates (repeals, amendments and new laws). However, there was
a perception that the proposed repeal of the TCP Act would leave a major gap in
the planning process.

It was felt that the drafting instructions for the NEPA Act lacked clarity, and that the
purpose of the NEPA Bill (as regards planning) could be achieved by completing the
existing draft TCP Bill.

There was concern that the Planning Act is still not applicable island-wide, as
Development Orders cover only about 66% of the island, unlike the NRCA Act
which is island-wide. It was therefore recommended that the TCP Act should be
extended to cover the entire island.

It was felt that the proposed legislation was mainly directed at environmental
resource management, and that planning was not dealt with properly. It was
therefore felt that the draft NEPA Act represented a “retrograde step in progress
that has been made in land use planning over the years”.

It was pointed out that the interaction with local planning authorities (LPAs) was still
problematic (LPAs have powers vested in them through the TCPA, to determine
certain planning applications, while the TCPA can determine others and also has
the power to “call in” certain applications for its own determination. However, it is
not prescribed by law which applications can be called in, which can create
uncertainty. It is also possible for a LPA, with detailed local knowledge, to disagree
with the view of the TCPA).
58
November 26, 2010

The proposed legislation proposed to give additional powers to the local authorities
with regard to environmental management, but these were felt to be inadequate, as
it would not have transferred key decision-making powers with regard to major land
developments.
Note 7
These initiatives included:

Updating the Town & Country Planning Act.

The creation of NEPA.

The development of the National Environment Policy.

Various ENACT programs, including local sustainable planning projects.

Various programs of the Ministry of Local Government.

Local government capacity building projects.

CIDA-funded local government reform.
Unfortunately, some of these reforms also had a cost, in terms of lost functions and
continuity. In particular, the McCalla report points out that the functions of the Town
Planning Department were not incorporated in the original TCPA Act, which meant that
some of the services that the TPD provided were effectively discontinued. This is
unfortunate, as the TPD had the important role of preparing advice to parish councils,
developers and the general public on all aspects of land use planning and development,
maintaining public education and information, and providing guidance for development in a
context of growing population, urbanization and changing development and land use
imperatives.
Note 8
The KPMG report gives the example of Ontario, in Canada, which uses this approach for
encouraging investment and development while protecting the environment. The Ontario
plan is locally-based. There is provision for the involvement of other arms of government but only when required - noting that a „large or complex proposal‟ will trigger the need for
59
November 26, 2010
consultation with interested government agencies‟, but this process is still coordinated by
the local planning authority.
A large or complex proposal is one where, for example, an amendment to the current plan
would be required, where a major industrial use for the land was being proposed, where
the development was on or near environmentally sensitive lands or prime agricultural
lands, where the development would affect archeological sites, heritage structures, or
known burial grounds, where there are sewage capacity concerns or water quality/quantity
concerns. In Jamaica, this would probably extend to where the development would involve
mining or mineral extraction or other development likely to result in irreversible changes,
the development of agricultural land for non-agricultural purposes, or development near
beaches.
Note 9
The current goals, mandates and activities of the Environmental Management Division are
as follows:
Goal: The protection of Jamaica‟s natural resources, the reduction and prevention of
pollution, the integration of environmental considerations into national development
polices, in contribution to the achievement of sustainable national development.
Mandate: The Division‟s mandate is the development of policies, legislation and
programmes for effective environmental management, supported by well developed
research and database systems in the area of environmental protection and conservation.
The Division also has oversight responsibility for the National Environment and Planning
Agency in terms of environmental issues.
Activities


Develop and review policies, programmes and legislation in areas such as:
Natural Resources – biodiversity (including national parks and protected areas,
wildlife protection, watersheds management, endangered species, biosafety)
60
November 26, 2010

Pollution control (including air and water quality, the ozone layer, waste
management particularly hazardous waste, persistent organic pollutants)

Environmental Stewardship - (including energy conservation issues)

Integrated Coastal Zone Management

Renewable Energy

Trade and Environment

Climate Change
A particular focus of the Division is Sustainable Development (including issues related to
Small Island Developing States)

Provide policy advice including technical briefs for the Minister for presentation to the
Natural Resources Committee of the Cabinet..

Participate in the development and implementation of technical assistance programmes
and projects.

Provide technical support to the Minister with responsibility for the Environment in
respect of the hearing of appeals under: Natural Resources Conservation Authority
(NRCA) Act, 1991 and the Beach Control Act, 1956; and to the Tribunal appointed under
the NRCA Act for the hearing of appeals related to enforcement notices.

Participate in regional and international meetings on environmental policy and
sustainable development.

Monitor the implementation of regional and international environmental agreements,
follow up issues of relevance to Jamaica, and ensure that treaty obligations are included in
the formulation of national policies and legislation.

Prepare and disseminate information for the public on environmental issues including
Ministry Papers for the Houses of Parliament.

Focal Point responsibilities and national reporting functions under various conventions
and protocols
61
November 26, 2010
Appendix 2 - ERA
ENVIRONMENTAL REGULATORY AUTHORITY
PROPOSED FUNCTIONAL/REPORTING STRUCTURE FOR
START UP OPERATIONS
10/25/2010
PARLIAMENT


Policy Development
Ministerial Support

OFFICE OF THE PRIME
MINISTER
ERA COMMISSION





Specialized Legal Advice on
environmental subject areas;
Ombudsman services for
aggrieved parties regarding
imposition of fines for noncompliance with standards;
Appeals services for citizens
and interest groups
regarding grievances with
environmental agencies and/
or developers.

LEGAL COUNSEL
STANDARD SETTING AND
REGULATION
DIRECTOR GENERAL
ENFORCEMENT AND
MONITORING

Reports directly to Parliament regarding annual
performance of the ERA.
Responsible for high performance management and
results based governance.
Oversees the implementation and evaluation of
policies.
Reports to the full Board of Directors on
the management of the ERA.
Chairs the Committees for the functional
areas of the ERA.
RESEARCH & INFORMATION
MANAGEMENT DIVISION
62
November 26, 2010
Appendix 3 – Finances
Environmental Regulatory Authority Financial Considerations for Capital Outlay and
One Year Operation and Maintenance Cost (August 2008-April 2010)
Planning/ Initial Start Up Costs - 3 months
Sub Total
1
Technical Assistance - consultancy service - 60 days @$152,250 per day
2
Office space rental (existing GOJ to be used temporary to house core ERA personnel)
Total
9,135,000.00
rent is $250,000 per month which includes parking space facilities
payment is usually one month security deposit, plus current month rental
750,000.00
3
Selection of Office Location for long term lease for permanent space ( 2,000 ft 2 or 180 m2 )
750,000.00
4
Office Maintenance for temporary office space
375,000.00
service charge - $125,000 per month
5
Minor Refurbishing of temp office space
1,000,000.00
6
Design and approval of the floor plans (permanent space)- consultancy fee
1,600,000.00
consultancy fee is usually calculated at a percentage (20%) of the office refurbishing cost
7
Purchase and installation of office equipment/technology for temp. space
Technology - hardware, software and installation costs
8
Start up recurrent cost
500,000.00
Per month
Utilities - light, water, telephone, internet per month
50,000.00
150,000.00
Staff emoluments (5)
1,250,000.00
3,750,000.00
Office supplies - stationery & toner for printer/copier per month
25,000.00
75,000.00
General Insurance - office equipment
5,000.00
15,000.00
4,166.66
12,499.98
employer's liability
Total Recurrent Cost
TOTAL START UP COST
1,334,166.66
$18,112,499.98
63
November 26, 2010
Implementation Stage - One Year Operation and Maintenance Cost (April 2009-2010)
1
Office building (permanent lease arrangement)
3,000,000.00
rent is $250,000 per month which includes parking space facilities
payment is usually one month security deposit, plus current month rental
2
Refurbishing of permanent office space
8,000,000.00
(dependent on the condition and the layout of the office that is selected, interviews with the
design company are required to determine actual cost) - per sq. $4,000 per sq. Ft
3
Purchase of office equipment/technology
equipment - machines, beakers, protective gear
4
10,000,000.00
Purchase of office furniture
625,000.00
Item
Cost per item
4 Office desks
60,000.00
120,000.00
7 Workstations & chairs
40,000.00
280,000.00
4 Filing cabinets
20,000.00
80,000.00
1 Lateral filing cabinet
43,000.00
43,000.00
12 Customer chairs
8,500.00
102,000.00
Recurrent cost
Office Maintenance: - service charge $125,000 per month
1,500,000.00
Emoluments for staff (10)
30,000,000.00
Utilities - light, water, telephone, internet
600,000.00
Office supplies - stationery, toner for printer/copier
300,000.00
Vehicle maintenance - gas, servicing, auto parts, registration
300,000.00
General Insurance - office equipment
60,000.00
employer's liability
50,000.00
Vehicle Insurance
300,000.00
Equipment Maintenance - computer etc.
2,800,000.00
Purchase of vehicle
3,500,000.00
Office Maintenance - janitorial services
1,500,000.00
Total
Cost
62,535,000.00
Contingency cost- 10% of overall costs
TOTAL OVERALL COST
62,535,000.00
8,064,500.00
88,711,999.98
64
November 26, 2010
Appendix 4 – Implementation Strategy
Subject to Cabinet approval, the implementation work was initially planned to start within
the 2009/2010 financial year. However, with the budget cuts that became necessary, it
was rescheduled to the 2010/2011 financial year.
Against the background of the current world recession and its continuing impact on the
Jamaican Economy and the resources available to ministries and agencies, the proposed
work to establish the ERA will now be anchored by the Public Sector Modernization
Division of the Cabinet Office, leading a multi-disciplinary team of relevant and qualified
technical and professional persons within government. External subject matter experts
would be utilized when absolutely necessary, to reduce the dependence on consultants for
implementation. It is proposed that implementation be in two phases, starting September
2010.
PHASE I (2010 – 2011 SEPTEMBER)
 Preparation of the Scheme of Management (SoM) for the ERA based on a
comprehensive review of options and the related cost-benefit analyses. The SoM
will define the following:

The initial business plan with specific recommendations for the scope of its
core functions, strategic objectives and organizational structure, and a
structured implementation plan with defined timeframes and major
milestones for its start-up and the first three years of operations.

A Medium Term Financing Plan which would include the cost of staffing,
operations and physical facilities; and the institutional, legal, technical and
performance frameworks required to fully establish the ERA as a new
agency.
 Review of NEPA in order to identify the changes necessary to its existing
organizational and operational arrangements.
 Cabinet would then be asked to consider the Scheme of Management for approval
to operationalize the ERA, and also effect the required changes to NEPA.
65
November 26, 2010
PHASE II (2011 – 2012 JUNE)
 Restructuring of NEPA
 Identification and preparation of physical facilities for the ERA
 Recruitment of ERA‟s CEO first, then direct reports
 Recruitment of other ERA staff
 Official opening of the ERA
Although a stakeholder meeting held May 13th 2008 which included the following agencies,
Planning Institute of Jamaica, Local Government, Office of the Jamaica National heritage
Trust, National Environment and Planning Agency, University of the West Indies, ministry
of Agriculture, National Land Agency, Ministry of Health, Cabinet Office, Office of the
Prime Minister, Ministry of Education, National Resource Conservation Authority/Town and
Country Planning Authority- it is also proposed that:
1. Further consultations with a wider cross section of stakeholders including NonGovernmental Organizations and as well as other relevant Ministries, Departments
and Agencies (in particular Ministries of Transport and Works and Water and
Housing) will be held. These consultations will inter alia ensure that all aspects of
the Environmental Regulations including the impact on the environment and existing
infrastructure; and the establishment “No Build Zones” are fully debated in the
national arena prior to and during the implementation process;
2. JIS will be involved in engaging the general public on the proposal to establish an
Environmental Regulatory Authority.
66
November 26, 2010
Appendix 5 – Steering Committee
Professor Anthony Clayton, University of the West Indies (Chairman)
Patricia Sinclair McCalla, Permanent Secretary, Office of the Prime Minister
Dr. Grace Allen Young, Permanent Secretary, Ministry of Health
Mrs. Hillary Alexander, Chief Technical Director, Cabinet Office
Mrs. Sancia Templer, Development & Planning Div., Office of the Prime minister
Mr. Peter Reeson, Jamaica Institute of Environmental Professionals
Ms. Denise Forrest, Jamaica Institute of Environmental Professionals
Mr. Patrick Rousseau, Natural Resource Conservation Authority
Dr. Leary Myers, CEO, National Environment & Planning Agency
Mrs. Winsome Townsend, National Environment and Planning Agency
Miss Leonie Barnaby, Office of the Prime Minister
Mr. Howard Lynch, Ministry of Health
Mr. Peter Knight, Ministry of Health
Mr. Owen McKnight, Ministry of Finance and the Public Service
Mrs. Eleanor Jones, Environmental Solutions Ltd.
Mr. Winston McCalla, Environmental Consultants
Mrs. Marsha Henry-Martin, Office of the Prime Minister
Mrs. Lorna Perkins, PSMD, Cabinet Office
Miss Zetta Allison, PSMD, Cabinet Office
67
November 26, 2010
Appendix 6 - References
i
Anthony Clayton, Graham Spinardi and Robin Williams. Strategies for Cleaner
Technology: a new agenda for government and industry. Earthscan, London. 1999.
ii
Anthony Clayton. Cleaner technologies: the implications for Developing Nations. In The
Caribbean Economy- A Reader: The Economics of Natural Resources, the Environment
and Sustainable Development. D Pantin (ed), Randle, Kingston, 2005.
iii
Michael Haley and Anthony Clayton. The role of NGOs in environmental policy failures in
a developing country: the mismanagement of Jamaica‟s coral reefs. Environmental Values,
Vol.12, No.1, February 2003, pp 29-54
iv
Winston McCalla and Associates, May 2007. Consultancy to Review Existing
Environment and Planning Framework and Develop New Environment and Planning Legal
Regime: Issues Paper. Prepared for the Ministry of Local Government and Environment.
v
Cambridge Economic Policy Associates Ltd. and the University of the West Indies,
October 2006. Public Private Infrastructure Advisory Facility: Jamaica Regulatory Impact
Study (four volumes), Final Report, with particular reference to the Issues Paper and the
Synthesis Paper, Prepared for the Cabinet Office of the Government of Jamaica. (UWI
team: Anthony Clayton, Akilah Anderson, Levi Atkinson, Simone Duncan, Hopeton Dunn,
Edwin Jones, Stanford Moore, Jaquelin Stevens and Philip Osei).
vi
Pauline McHardy, 2003. Policy statements for Spatial Planning for the incorporation into
the national environment and planning policy and strategy (NEpPS) and preparation of a
template for development plans/orders. Prepared for the Public Sector Modernization
Project, Project Management Unit, Cabinet Offices, Office of the Prime Minister.
vii
KPMG Consulting LP, March 2002. A Planning Framework for Jamaica: Draft Discussion
Paper.
viii
UN Habitat Agenda: The Istanbul Declaration on Human Settlements. UN, 1996
ix
Planning Institute of Jamaica and the Statistical Institute of Jamaica, 2006. The
Residential Consumer End Use Survey (Volume 2 - Regulatory Authorities) Draft Report.
Prepared for the Petroleum Corporation of Jamaica.
x
Response to the draft National & Environment & Planning Act‟, Ministry of Local
Government and Environment; review meeting on March 31, 2005, cited in the McCalla
report.
68
November 26, 2010

Environmental Regulatory Authority Green Paper

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