The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Opponents of the Abaco Club’s proposed Little Harbour marina are alleging that the Government has “already gone down the wrong path” on a project whose economic benefits are tilted overwhelmingly in the developer’s favour.

The Responsible Development for Abaco (RDA), in written submissions supporting their Judicial Review application, alleged that while the Abaco Club will receive $125,000 per dock slip sale, just two full-time jobs would be created.

“The development is opposed by an overwhelming majority of the residents and homeowners in Little Harbour,” RDA and its attorney, Callenders & Co, alleged.

“It is opposed on the grounds that it would swamp Little Harbour (occupying approximately two acres of the 11 acres of usable space in the harbour); it would cause environmental damage; it would increase pollution, light, noise and traffic; and it would commercialise what is, at present, a quiet ‘off-grid’ community.”

Turning to the marina project’s projected impact, RDA added: “It is said that there are economic benefits to the development. The economic benefits are shared in this way.

“The benefit to the local community is that, once the development is built and has come into operation, it will employ ‘a maximum of two people’. The benefit to the Abaco Club is that it proposes to sell each slip for up to $125,000.”

The RDA action is the latest development-related Judicial Review case to be launched against the Government and its regulatory agencies on the basis that they have either failed to follow their own permitting/approval processes as set out in law, or and/or not properly consulted affected parties on the actions they propose to take.

“There is no good reason why the respondents [government agencies] should refuse to engage with the applicant,” RDA alleged. “It appears to be simply a co-ordinated attempt to avoid proper scrutiny of governmental decision-making.

“The respondents have already gone down the wrong path in respect of their duty to consult. Their failure to confirm that they will carry out proper consultation, their failure to provide relevant information, and their refusal to engage with the applicants means that it is to be inferred that, without an Order from this court, consultation is likely to be non-existent or, at best, fundamentally flawed.”

Fred Smith QC, the Callenders & Co attorney and partner acting for RDA, told Tribune Business yesterday that the law had developed such that failing to properly consult and/or provide information on development projects to interested parties was subject to Judicial Review.

“This case is an evolution of the law, the jurisprudence from Guana Cay, so that conducting affairs in secret, simply stonewalling interested parties, refusing to answer correspondence and inquiries, is no longer an option,” he said.

“The law has developed such that decisions to keep everything secret, and not to consult with interested parties; all those are Judicially Review-able.

“That is how environmentalists and Family Islanders who are affected by secretive activities, frequently imposed on them overnight, will be able to challenge them, as in the Little Harbour case.”

RDA’s Judicial Review challenge to the Abaco Club’s Little Harbour project was due to be heard in the Freeport Supreme Court starting today, some three days having been set down for the case.

However, Mr Smith yesterday accused the Government of “ambushing” RDA with an $150,000 ‘security for costs’ demand that was made last Thursday.

It also wants the Supreme Court to striking out of some of the nine government respondents, and for the trial to be adjourned.

The Government has typically sought the payment of a bond or ‘security’ to cover its legal costs as a first attempt to ‘knock out’ such Judicial Reviews, believing that environmental activist groups lack the funding to meet such demands.

Ashley Sturrup, an assistant attorney in the Attorney General’s Office, alleged in a November 23, 2016, affidavit that a review of RDA’s incorporation documents and Judicial Review application showed it was “a nominal claimant with no private interests of its own to pursue”.

She also suggested that RDA was acting as a ‘vehicle’ to promote the vested interests of individuals, pointing to admissions by David Pitcairn, its vice-president, that he owned a residential adjacent to the Little Harbour project site.

“It seems clear that the applicant [RDA] is being used as a corporate vehicle to shield its members from any exposure to costs,” Ms Sturrup alleged.

Estimating the Government’s likely legal costs at $250,000, she said it was requesting that RDA provide security for at least $150,000.

The Government’s demands were conveyed to RDA and Mr Smith by Antoinette Bonamy, the director of legal affairs, on November 22.

Ms Bonamy expressed doubts that RDA would be able to pay the Government’s legal costs, if its action was unsuccessful, based on its “shoestring method of funding”.

“Further, the respondents have serious concerns about the merits of this action, having regard to the multiple government respondents which have been named (unnecessarily and improperly, it is contended), and the fact that the main decision under challenge (lack of consultation) may be premature,” she added.

The Government’s position is that while applications for the necessary permits have been made by the Abaco Club, no permits or decisions have yet been rendered.

The nine government respondents to the Judicial Review include Prime Minister Perry Christie; Deputy Prime Minister Philip Davis; Glenys Hanna Martin, minister of transport and aviation; Kenred Dorsett, minister of the environment; the Town Planning Committee; South Abaco District Council; Richard Hardy, acting director of Lands and Surveys; and Marques Williams, Abaco’s port administrator.

The Government wants the four Cabinet ministers, plus Mr Hardy, to be struck out as defendants by the Supreme Court.

The Abaco Club, which is owned by a combination of US-based Southworth Development and a group of its homeowners, is proposing to remove some existing moorings and demolish an existing dock to make way for its 44-slip facility.

This will extend some 270 feet into Little Harbour and measure 320 feet across, with supporting facilities such as a restaurant, supplies store, car park, desalination and wastewater treatment plants also set to be built.

“The fact that not one of the nine respondents has responded to requests for information for (what is now) approaching a year leads to a powerful inference that a decision has been taken at a high level that this information should be withheld,” RDA alleged. “This cannot merely be a question of oversight.

“This refusal to engage with the applicant also lends considerable force to the further inference that the respondents intend to grant the various permits sought without proper consultation and then, once work has begun, argue that the development is a fait accompli.”