The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A senior government official’s decision to approve a dredging permit for Nygard Cay has been branded “illegal, ultra vires and irrational”, given that such activities had already been banned by the Supreme Court.

The Save the Bays environmental advocacy group, in its fourth Judicial Review challenge to development activities at Peter Nygard’s Lyford Cay home, is alleging that Michael Major, the director of physical planning, effectively ignored three existing Supreme Court injunctions that bar the granting of permits such as the one he gave in late 2014.

Justice Rhonda Bain last week gave permission for the Coalition to Protect Clifton Bay (now Save the Bays) to bring the latest action in its long-running battle against the multi-millionaire Canadian fashion designer’s construction activities.

Besides seeking to quash the October 9, 2014, dredging permit granted to Nygard Holdings, the Coalition also wants the Supreme Court to require that Mr Major order Mr Nygard to remove the sand produced by the dredging from his beach at Nygard Cay.

The environmental advocacy group is alleging that Mr Nygard has breached the permit’s revised terms. After initially requiring the Canadian multi-millionaire to deposit the sand extracted by the dredging on the public Jaws Beach, the permit was amended to allow this to be “stockpiled” at Nygard Cay.

The “stockpiling” was conditional on the sand not being applied to Mr Nygard’s beach, but the Coalition is alleging that this is exactly what has been done.

Mr Nygard’s spokesperson, though, blasted the Coalition’s latest Judicial Review and allegations as “misguided”.

In a statement sent to Tribune Business, they said the fashion designer was merely performing “routine maintenance” at his property, not dredging up new sand as Save the Bays is claiming.

The spokesperson likened this to “to shovelling snow from a driveway to back out the car, not to digging up the concrete”.

They added that Mr Nygard’s Bahamian attorney, Thomas Evans QC, had advised that such ‘maintenance’ activities at his Lyford Cay property were permissible under the three injunctions’ terms.

“Save the Bays’ attempt to overturn this government permit acknowledges what Peter Nygard has been arguing for weeks in the face of misguided allegations by this group that he was dredging the seabed in front of his property on Lyford Cay,” the spokesperson said.

“Mr Nygard is performing routine maintenance and has a government permit to do so. He is not disturbing or digging up the seabed, as Save the Bays has contended, but simply has been moving sand that the currents have carried from the north-west of his property to the southeast, clearing the channel at his marina dock so that his yachts have ingress and egress.

“This can be equated to shovelling snow from a driveway to back out the car, not to digging up the concrete. All residents at Lyford Cay are required to perform this sand clearance to keep their marinas accessible,” the spokesperson added.

“Thomas Evans QC, Mr Nygard’s Bahamas counsel, believes that the court injunction permits such routine maintenance, and now Save the Bays, by attempting to overturn the Government permit, is conceding that Mr Nygard is well within his rights to be performing such activities.”

The Coalition, in its application to bring the fourth Judicial Review, alleged that it only became aware of new dredging activities off Nygard Cay’s south-east shore on December 9, 2014.

Court filings on January 15, 2015, reveal that it hired Bahamian security firm, Migrafill Security International, to investigate and confirm the dredging. The goal, the documents allege, was to gather evidence that would support a Coalition bid to jail Mr Nygard for contempt of court, on the grounds he had breached a Supreme Court order banning this activity.

“The report by Migrafill dated December 22, 2014, confirms that Mr Nygard has indeed been dredging during December 2014, and accordingly breached the first Judicial Review injunction order,” the Coalition alleged.

“The Migrafill report also confirms with photographic evidence that the excavated sand was being pumped on to the beach at Simms Point (Nygard Cay) and redistributed along the beach to fill it in, and extend the beach using heavy machinery.”

Sam Duncombe, a Coalition director, said it only became aware that Mr Major had issued a dredging permit when its attorney, Fred Smith, the Callenders & Co partner, spoke to Mr Evans on December 15, 2014.

Detailing that conversation, Ms Duncombe said Mr Smith allegedly challenged Mr Nygard’s dredging for being in breach of the existing court order.

“Mr Evans said that: ‘It might not be’,” Ms Duncombe alleged, adding that Mr Nygard’s attorney referred to it as being for “maintenance”.

Mr Smith challenged the ‘maintenance’ argument, arguing this was not provided for in the injunctions.

“After a slight pause, Mr Evans QC said: ‘You know, the Government has issued a permit in October 2014’,” Ms Duncombe alleged. “Mr Smith indicated that he was unaware of this, and was surprised.”

Copies of the October 9, 2014, dredging permit, and the December 15 letter modifying its conditions, were then handed over to the Coalition over the following two days.

It alleged that the October 9 permit, signed by Mr Major, had been issued to Nygard Holdings, a company whose president and majority shareholder was Mr Nygard.

This permitted the dredging of sand from a 134,947 square foot area off Nygard Cay, an area that the Coalition claims is covered by the injunction it obtained in the first Judicial Review action. This prohibits dredging of the Crown Land-owned seabed in the absence of the required permits.

Meanwhile, the December 5 letter modified the permit’s terms, following an appeal by Nygard Holdings, to allow the excavated sand to be ‘stockpiled’ at Nygard Cay rather than moved to Jaws Beach.

The Coalition said it responded by warning Mr Major and the Attorney General’s Office that the dredging permit also violated another injunction it had previously obtained, which prevented the physical planning director from “considering and determining” applications by Mr Nygard.

It also alleged that Mr Nygard had breached the permit’s terms by not installing turbidity curtains in the surrounding waters to protect the environment.

“The decisions are illegal, ultra vires and irrational as taken in breach of the second Judicial Review and/or the third Judicial Review injunctions ordered against the director of physical planning on July 17, 2014, and August 25, 2014, respectively and which remain in force and binding on the director of physical planning,” the Coalition alleged.

It also claimed that the permit may have rendered “nugatory” its challenges to allegedly “flawed consultation processes” over Mr Nygard’s permit applications. The Coalition said it was unclear whether the latest permit arose from those “flawed” processes or was “simply issued without consultation”.

Pointing out that Mr Major must have been aware of the injunctions’ existence, the Coalition added: “In all of the circumstances, no rational decision-maker taking this factor into account could have decided to grant a dredging permit to Mr Nygard’s company.”

It said that if even if the permit was not found to breach the existing injunctions, its issuance was “procedurally unfair” because no public consultation process had occurred. No Environmental Impact Assessment (EIA) had been conducted, and the Coalition is also alleging that the permit’s issuance was in non-compliance with the Buildings Regulation Act.

The Coalition/Save the Bays appear to be digging in for protracted battle with Mr Nygard over the construction/development activities at his Lyford Cay home.

They are claiming that the Canadian multi-millionaire fashion designer has almost doubled his property’s size, from 3.25 acres to 6.1 acres, since he acquired it in 1984 by reclaiming Crown Land from the sea.

The Coalition is alleging that Mr Nygard achieved this without the necessary permits and approvals, claims that have been denied by the man himself.