The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Opponents of the Abaco Club’s Little Harbour marina project yesterday claimed “a slight victory”, as the Supreme Court effectively imposed a 16-day block on the development being granted any permits or approvals.

Fred Smith QC, the Callenders & Co attorney and partner, who is representing Responsible Development for Abaco in its Judicial Review challenge, told Tribune Business that “the status quo” had been maintained - at least temporarily.

He confirmed that the Government had succeeded in having the main trial pushed back from yesterday until February 23-24, 2017, with its demand that RDA pay ‘security for costs’ now set to be heard on December 14.

“There was a slight victory,” Mr Smith told Tribune Business of yesterday’s hearing in Freeport. “The court has, in the meantime, issued a conservatory Order to maintain the status quo, so that no permits and licences are to be issued until a further hearing takes place on December 14, when the Government summons for security for costs is to be heard.

“At least the residents of Little Harbour, although they did not have their day in court, are not going to be prejudiced by the adjournment. The Order is going to maintain the status quo and ensure no approvals and permits are granted in the meantime.”

Mr Smith said an attorney from Higgs & Johnson, representing the Abaco Club’s owners, a consortium featuring a group of homeowners and Southworth Development, was present for yesterday’s hearing.

He added that the Government also gained permission to file affidavit evidence from the nine respondents to RDA’s Judicial Review action.

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.

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

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, 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.”

The Government, though, is first demanding that RDA pay $150,000 as ‘security for costs’ before the matter proceeds to trial.

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.

The Government’s demands had already been 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 Abaco Club 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 development is opposed by an overwhelming majority of the residents and homeowners in Little Harbour,” RDA and 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.”