The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Both sides in the dispute over a controversial Harbour Island project were yesterday claiming victory in the first battles of a brewing legal war over efforts to overturn its permits and approvals.

Benjamin Simmons, the Harbour Island hotelier who is one of two parties behind the Judicial Review action seeking to halt the Briland Residences & Marina development, told Tribune Business that the project’s developer had “skipped over” several developments in claiming victory in their first legal skirmish.

A principal behind the second Judicial Review sponsor, Briland Island Responsible Development, Mr Simmons said Justice Diane Stewart had allowed them to amend their initial filings to enter “environmental evidence” provided by their consultants, Turrell, Hall & Associates.

And he argued that Michael Wiener and his 4M Harbour Island entity were “in an impossible position” regardless of whether Briland-related planning decisions were governed by the Planning and Subdivisions Act or Town Planning Act because the process for issuing the project’s permit was flawed under either law.

However, an incredulous spokesman for Mr Wiener and Briland Residences & Marina questioned how Mr Simmons and the Association could claim any victory when Justice Stewart’s July 15 ruling refused both their bid to add the Harbour Island District Council as a potential respondent or include their allegation that marina construction was taking place illegally on the basis that site approval had lapsed.

Justice Stewart had also ordered that Mr Simmons and Briland Island Responsible Development pay the legal costs of both the developer and the Government in her ruling - something Mr Wiener’s spokesman said did not suggest the other side had won the initial fight.

And they also questioned why a posting on Briland Island Responsible Development’s Facebook page, stating that Justice Stewart had “made several rulings favourable to our case” on July 15, had been removed following Tribune Business coverage of her judgment in yesterday’s paper.

The posting added that the verdict “suggests that when she reconvenes on August 6, the next hearing date, she will grant our application for Judicial Review and issue an injunction staying further work on the marina until our claims can be ruled on”.

Mr Simmons yesterday said he had not been responsible for the posting, and had not read it before it went up. However, Mr Weiner’s spokesman argued that its removal was a further sign that Briland Residences & Marina’s opponents had not been as successful as they claimed.

But Mr Simmons, sticking to his arguments, said: “The big thing they’ve done is present themselves as winning this round. They skipped over three main things that happened in the judge’s ruling, one of which was that she ruled to allow our environmental evidence.”

He added that Turrell, Hall & Associates had produced a note, comparing the actual marina construction and other activities at Briland Residences & Marina to what had been promised in the project’s Environmental Impact Assessment (EIA).

Based on what they had seen in early to mid-June, Mr Simmons questioned how Briland Residences & Marina could meet its promise of being able to accommodate 250-foot plus vessels in the marina without much more dredging than outlined in the EIA.

Suggesting that dredging to a depth of 15 feet would be required, impacting some 15-30 acres of seabed, he added that Turrell, Hall & Associates had concluded that Briland Residences & Marina’s promises to potential dock slip purchasers “didn’t make any sense” unless this was concluded.

Justice Stewart’s ruling, while declining to add the Harbour Island District Council as a potential respondent, left open the question of whether it is the Planning and Subdivisions Act or Town Planning Act that applies to Briland planning decisions to be decided another day.

Attorneys for the multi-million dollar project had argued that the Planning and Subdivisions Act did not apply to Harbour Island because the government had failed to include it in the list of islands it was extended to cover in 2012.

As a result, Robert Adams and Adrian Hunt, of Graham, Thompson & Company, said the Town Planning Act and its procedures govern any planning-related appeals on Harbour Island. This stipulates that there is a “statutory right of appeal” to the Supreme Court that must be followed, rather than the Judicial Review route taken by Mr Simmons and Briland Island Responsible Development.

Mr Simmons, though, argued that either way the developer could not win. Should the Planning and Subdivisions Act apply, the argument via Judicial Review will be that the issuance of the required permits by the Town Planning Committee breached the law because they were approved at a private meeting rather than in public - and with consultation - as required by law.

And, if the Town Planning Act applies, Mr Simmons added that the argument will be that the wrong body - the Town Planning Committee - issued the permits as opposed to the Harbour Island District Council.

“It puts them in an impossible position,” he told Tribune Business. “The judge allowed that amendment. It puts them in an impossible position. They’re damned if they do, damned if they don’t, as the Judicial Review applies.”

That, though, could be subject to challenge as the Judicial Review would seemingly face being thrown out if the Town Planning Act applies, since all challenges under that statute have to be brought by a different route.

Still, suggesting that Briland Island Responsible Development is backed by some 150 Harbour Island residents, businesses and expatriates, Mr Simmons said of the developer: “They’re going to try and turn any victory we have and muddy the waters, under-playing it.”