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Activists Triumph In Nygard Dredging Case

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Peter Nygard

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A SUPREME Court judge has ordered the Department of Physical Planning be restrained from issuing any further dredging permits to billionaire Canadian fashion mogul Peter Nygard pending the resolution of three other judicial reviews against the controversial development of his Lyford Cay home.

Justice Rhonda Bain, in a written ruling, ordered that the director of public planning be restrained from issuing "any further dredging or landfill permits" to Mr Nygard pending the closure of three court actions launched by the Coalition to Protect Clifton Bay, now Save the Bays, against the dredging at Simms Point/Nygard Cay.

Justice Bain also granted an order of certoria, quashing the decision of the director of public planning (DPP) to issue a dredging permit to Mr Nygard on October 9, 2014 – despite the existence of two injunctions barring the issuance of any building permit, as well as the DPP's decision to vary the conditions of the dredging permit in question.

Justice Bain further ruled the DPP's decision to issue a dredging permit to Mr Nygard and amend it was "irrational,” and in contravention of the injunction granted on July 17, 2014 and/or the injunction granted on August 25, 2014.

She also said the issuance of the permit to Mr Nygard was ultra vires and/or irrational because the dredging was prohibited by a court order dated June 13, 2013.

The judge further declared that the decisions made by the DPP were "fundamentally flawed and/or procedurally improper" because they were made without any proper and/or meaningful consultation and/or without complying with the requirements of the Conservation and Protection of the Physical Landscape of the Bahamas Act (CPPLBA).

Justice Bain noted that the DPP "failed to give notice of the fact that he was about to consider whether any excavation or landfill operation should be carried out,” and failed to notify the coalition of the existence of the application and to supply the coalition with a copy of the application and relevant supporting documents, despite knowing "that the coalition was an interested party that was entitled to be consulted."

However, Justice Bain noted in her ruling that she was unable to issue an order of mandamus directing the DPP to require Mr Nygard to remove the sand deposited on the beach at Simms Point as a result of the dredging. This, she said, was because while evidence exists that dredging took place, "the amount of material excavated is not known."

According to Save the Bays, as a result of the ruling, the government will have to foot the bill for the group’s legal costs.

Justice Bain's ruling came subsequent to four judicial reviews launched by the coalition with respect to the dredging at Simms Point/Nygard Cay.

Battle

The multiple judicial reviews and consequent injunctions stem from a long running court battle between Save The Bays and Mr Nygard over the construction/development activities at his Lyford Cay home, which stem from allegations that the activities have led to substantial growth of the property.

The group claims the Lyford Cay resident has almost doubled the size of his property, from 3.25 acres to 6.1 acres, since he acquired it in 1984, by reclaiming Crown land from the sea. The advocacy group has accused Mr Nygard of achieving this without the necessary permits and approvals, claims that have been denied by the fashion designer.

According to the ruling, the coalition previously alleged that the DPP "entertained" an application for a dredging permit that he received on October 2, 2014 to dredge the seabed in an area comprising 134,947 square feet southeast of Simms Point/Nygard Cay and north of Clifton Bay.

The coalition further alleged that between October 9 and December 5, 2014, the DPP entertained an applicant to waive and/or vary a condition attached to the permit in question, thus allowing the excavated material to be placed on the beach at Simms Point/Nygard Cay rather than requiring it to be removed to Jaws Beach as the original permit had required.

The coalition further alleged that the DPP acceded to the application but "imposed as a condition that the sand be stockpiled on Simms Point."

Dredging was thus carried out by Mr Nygard "in reliance on the dredging permit" between December 11 and 20, 2014. Additionally, Mr Nygard allegedly used the dredged material for "unauthorised landfill" and "land reclamation,” which the coalition claimed was in "direct contravention” of a stockpiling condition and was in further breach of "other conditions attached to the dredging permit (such as the requirement for monitoring and for turbidity curtains to be in place)."

The ruling said the DPP was informed of the breaches on December 18, 2014 but took no action to suspend or revoke the permit.

Thus, the coalition submitted that the decisions by the DPP were "illegal, procedurally unfair, vultra vires and/or irrational" because they were in breach of the July and August, 2014 injunctions, and that the decisions and request for a waiver of the condition were "each considered and determined by the DPP without notifying or consulting with the Coalition" as required by the CPPLBA Act.

In response, counsel for the DPP submitted that the coalition should not be granted any legal relief.

However, Justice Bain ultimately ruled that in view of the coalition's claims and the events that invoked them, the DPP "had an obligation to act in respect of the breach of the conditions of the dredging permit."

"These breaches were brought to the attention of the DPP by counsel for the coalition," she said. "Additionally, by the terms of the conditions attached to the dredging permit DPP had an obligation to monitor the excavation."

She added: "The dredging permit was issued by the DPP even though there were two injunctions against the issuing of any building permit, or even considering the issuance of a building permit with respect to property located at Simms Point, Nygard Cay.

"The dredging permit was issued in breach of the injunction. The DPP has been found in contempt of court. It is imperative that the orders of the court be complied with until set aside."

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