Court gives former NEPA manager go-ahead to challenge IC findings in Barnett matter
THE FORMER head of enforcement at the National Environment and Planning Agency (NEPA), whose alleged “gross dereliction” reportedly facilitated construction breaches by the National Water Commission (NWC) president, has been permitted to challenge the Integrity Commission’s findings in court.
King’s Counsel Symone Mayhew says the Supreme Court recently granted her client, Mojorn Wallock, permission to apply for judicial review of the findings and conclusions made against her in its report of October 2023.
She said a hearing is expected in the next two months.
A judicial review allows the court to determine whether the processes used by an entity were fair.
Among other things, Wallock wants the Supreme Court to quash the findings against her, to declare that they were made in breach of the principles of natural justice, and to compel the IC director of investigations to recommend to the commission that she be “exonerated of any culpability” in relation to the investigation.
Wallock, who was director of the legal and enforcement division of NEPA from April 2015 to February 28, 2023, alleges that the anti-corruption body was “unfair” to her in its report on the St Andrew apartment complex owned by Mark Barnett and his wife Annette.
“I believe that the findings, conclusions and/or recommendations were made in circumstances which were unfair to me and in a manner that was procedurally irregular as I was not afforded the opportunity to justify my actions in this matter,” she asserted in court documents obtained by The Sunday Gleaner.
IC Director of Investigations Kevon Stephenson slammed Barnett for his “egregious” actions in the construction of the development at 11 Charlemont Drive in Hope Pastures.
The 2020 NEPA environmental permit and the 2019 building approval from the Kingston and St Andrew Municipal Corporation (KSAMC) allowed for the construction of two three-storey blocks consisting of 12 onebedroom units.
However, the IC said that in 2022, it found the completed development with six twobedroom units and six three-bedroom units “in breach of the permits issued”.
Stephenson said that while Wallock issued a warning letter dated February 10, 2021 to the Barnetts, she “failed to execute any further enforcement measures to ensure compliance with the permit issued in relation to the development”.
“The foregoing omission on Morjorn Wallock’s part amounts to gross dereliction of duty and significantly contributed to the creation of the environment/opportunity which facilitated the breaches,” he concluded.
A NEPA inspector recommended the warning letter following a site inspection on December 17, 2020.Another NEPA inspector observed breaches on October 8, 2021 and recommended an amendment to the permit.
Wallock, the IC report added, wrote to Barnett on November 8, 2021, regarding the amendment and advised that documents to deal with it were required two days later. On the same date, Barnett’s wife, who is also an attorney, acknowledged the letter and requested until November 22, 2021 to address the issues.
There was no further correspondence.
‘THOUGHT I WAS ASSISTING INVESTIGATION’
Wallock appeared before the commission on February 1 and 13, 2023.
But she contends that based on the final report, she was treated as a person under investigation and not as a witness, as the summons from the commission indicated.
“At no time prior to being summoned before the respondent (Integrity Commission) or during the judicial hearings that were conducted was I informed that I was a person under investigation. I merely thought that I was attending as a witness to assist with an investigation,” she said in an affidavit dated December 21, 2023, the same day her application for permission to seek judicial review was filed.
Wallock said she has been advised by her lawyer that if she had been under investigation, the commission would have had to inform her in writing and, further, that if she refused to participate as a witness without a reasonable excuse, she risked committing an offence and could be fined or imprisoned.
She said she was not given any background to the alleged irregularities and as a witness, she was “compelled to give evidence and ... only answered the questions ... asked”.
“During the questioning by the Integrity Commission, it was never put to me that my handling of the matter amounted to gross dereliction of duty. Nor was I asked whether or not enforcement action could be pursued, given the legislative framework,” added Wallock.
News of Wallock’s legal action came amid public anger after Director of Public Prosecutions Paula Llewellyn ruled in January that Barnett and his wife cannot be charged for breaches of an environmental permit because NEPA did not initiate prosecution within 12 months after learning of the alleged breaches in 2020 as per Section 37 of the Natural Resources and Conservation Authority (NRCA) Act.
Llewellyn said under the NRCA law, which NEPA enforces, the period for the prosecution to be initiated was between December 17, 2020 and December 17, 2021.
NEPA has faced public backlash for its interdiction of the inspector who first flagged the breaches. The entity alleged last month that he did not comply with all the agency’s rules and brought the agency into disrepute, a claim rejected by the employee.