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Hotel Project In Judicial Review

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Fred Smith

By NEIL HARTNELL

Tribune Business Editor

THE owners of a well-known eco-resort have launched Judicial Review proceedings against a 16-room hotel and office project approved by the Ingraham administration for adjacent land on Exuma's Stocking Island, alleging that the National Economic Council (NEC) and Investments Board acted "ultra vires".

David and Carol Higgins, owners of the four-cottage Hotel Higgins Landing property, are alleging that government approval of the proposed Good Hope Property project failed to follow the Planning and Subdivisions Act's processes.

In their application to the Supreme Court, which has been obtained by Tribune Business, they allege that the Town Planning Committee had granted Site Plan Approval to Good Hope "in contravention" of the Act's provisions and objectives.

And they also claim that NEC/Investments Board approval of acquisition of Bahamian land by a foreign investors "does not negate the need to obtain Site Plan Approval or the other approvals' required under the Planning and Subdivisions Act.

Fred Smith QC, the Callender's & Co attorney and partner acting for the Higgins', said his clients had been forced to launch Judicial Review proceedings because they had not been provided with any answers on what the Town Planning Committee had approved in relation to the Good Hope project.

Mr Higgins, in an affidavit filed to support the Judicial Review application, alleged that a project of Good Hope's size "simply makes no sense" on a sparsely populated island with no public utilities, and should have been subjected to extensive review before being approved.

"We are admittedly concerned about the risks to our business that the Good Hope project poses, but most certainly not from a 'competition' aspect," Mr Higgins alleged.

"A lengthy construction duration, which would be necessary to build 16 cottages, would mean that we could not in good faith accept bookings and subject our guests (about 70 per cent which are repeats) to the noise, disturbance and intrusion on the peace and tranquility that they would otherwise expect.

"This is not to say that the new development could not be a jewel utilising environmental technologies, but a project of such magnitude, on an environmentally sensitive site, on a sparsely inhabited island with no public utilities, simply makes no sense and should have had extensive review prior to any approval of the investment or otherwise."

The Higgins' alleged that they first notices site clearance work taking place on the property earmarked for the Good Hope project on January 31, 2012.

"On February 4, 2012, Mr and Mrs Higgins saw several persons marking out building locations on Lot 5," the Judicial Review application alleged. "One of them was the buyer, Mark Maynard, and he confirmed he had obtained approval for 16 cottages of at least 500-600 square feet each.

"Mr Maynard stated that he was in the process of obtaining Hotels Encouragement Act concessions in Nassau, and that he was 'doodling' with the resort design. He concluded our conversation with the statement: 'But don't hold me to any of this'."

The Higgins' alleged that "to the best" of their knowledge no Site Plan, Environmental Impact Assessment (EIA) or detailed project proposal had been considered by the relevant government authorities.

They then started expressing "concerns about the grant of any permission for development without proper consideration and consultation", but the Judicial Review application implied their efforts failed to obtain much information from various government bodies.

Finally, they received an April 10, 2012, letter from Bahamas Investment Authority (BIA) director Joy Jibrilu, who "confirmed that the NEC had purported to approve an application by Good Hope to construct a six-room resort and office, and an additional 16 hotel rooms, together with a tennis court, restaurant and bar and that all land acquisitions relative to the development had been approved by the Investments Board".

Apart from seeking an injunction preventing Good Hope from continuing to develop its property until the Judicial Review action was settled, the Higgins' are seeking a Supreme Court order to quash the NEC approval and any Site Plan Approval given by the Town Planning Committee.

Mr Higgins alleged: "The NEC has no jurisdiction to approve development. It can only approve acquisition. In approving acquisition, it cannot bind the Town Planning Committee or any other entity. Its decision to purport to give approval should therefore be quashed."

And he further claimed: "If the development does not cease pending the final hearing, the whole point of the Planning and Subdivision Act will be rendered nugatory.

"The damage to Stocking Island and the surrounding wetlands will be irreversible. We will have lost our opportunity to protect our interests and those of the environment. In contrast, any harm suffered by Good Hope and/or Mr Maynard and/or Mr Burrows as a result of such order will be, at most, delay to the plans to change the user of the land."

Mr Higgins added that Stocking Island only had seven full-time residents, containing seven single family homes, of which five were occupied on an occasional vacation basis. There was also Kavali House, featuring a private home and two rental cottages, and the St Francis Resort.

Mr Higgins alleged that he and his wife approached their Hotel Higgins Landing project "with the attitude that we would make the least possible impact on our neighbourhood and Stocking Island, and maintain to the best of our ability a residential character".

He added: "We implemented the first approved solar electric power system in the Bahamas; we installed and utilised biological composting toilet systems rather than septic tanks; we designed to maximise rain catchment and rely only on rainfall; and designed and installed water reuse systems to support minimal 'man introduced' landscaping surrounded by an otherwise natural and pristine landscape.

"The guests who come to Higgins Landing, do so for what we term 'soft adventure'. They learn to live in self-sustaining cottages powered, perhaps limitedly in some views, by the exclusive use of solar power; they don't have air conditioning, but the air is clean and the area is quiet.

"They recognise (and enjoy) that the water they use is of limited quantity, but they also know that no fossil fuels were burned or air polluted to give them all the water they may wish."

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