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Harbour Island Project ‘Unlawful’

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A HARBOUR Island development must make an application to the “appropriate authority” and receive the requisite approvals “in compliance with the law” if work is to ever resume on the project, a Supreme Court judge has ruled.

Justice Diane Stewart, in an October 17 written ruling, ordered the marina development by 4M Harbour Island Limited to be “stayed” pending an application and its consequent lawful approval by the relevant body.

Justice Stewart simultaneously quashed the project’s site plan approval by the Town Planning Committee (TPC) and “any decision which flowed directly therefrom,” as it was “unlawful and without jurisdiction”.

The judge’s decision effectively confirms Harbour Island hotelier Benjamin Simmons’ and Briland Island Responsible Development’s (BIRD) successful bid at an order quashing the TPC’s decision to approve the construction of a new 55-slip marina at Harbour Island, which would form part of a new development called the Briland Residences and Marina.

Mr Simmons and BIRD had sought a declaration that the development had commenced without the requisite approvals; a “mandatory order” requiring the TPC to “exercise its powers” to require 4M to cease development and “restore the land to its condition before the unauthorised development took place”.

Mr Simmons and BIRD also sought an order requiring the TPC to compel 4M to bring the development into conformity with any permit lawfully granted.

It all started on August 11, 2017, when 4M made a formal application to the Department of Physical Planning (DPP) for site plan approval of a marina expansion/improvement. The proposed development included the construction of cottages, a small marina village, boutique hotel, multiple guest rooms and support buildings.

Government notices were published in the major newspapers notifying the general public that a consultation meeting would be held on November 16 of that year at the Harbour Island All-Aged School.

The government notice also informed the public that the design plans would be available at the DPP in New Providence and at the office of the Family Island administrator where the public was allowed to review the documents.

The meeting was held on November 16, 2017 and the minutes of the meeting, recorded by the Bahamas Investment Authority (BIA) indicated that more than 100 people were in attendance. Additionally, a cross-section of people from various government ministries and agencies made presentations as well as 4M.

Minutes from the meeting further recorded that Acting Director of Physical Planning Charles Zonicle “stated that the developer submitted the plan for approval and a part of the reviewing process is to have a public meeting to gather views of the community.”

Following the November 16 meeting, the island’s district council convened a special meeting on November 20. A motion was moved and seconded to agree that the 4M project be approved, and for 4M to adopt Harbour Island Community Centre. All councillors in attendance unanimously agreed.

The district council subsequently communicated its decision to Mr Zonicle. On November 21, the TPC considered 4M’s application and resolved to grant 4M site plan approval. By letter dated November 21, 2017, Mr Zonicle wrote 4M representative Alban Rolle, informing him of the TPC’s decision to grant 4M site plan approval.

Mr Simmons and BIRD consequently filed for a judicial review of the decision, on the primary allegation that there was no compliance with Section 37 of the Planning and Subdivision Act (PSA), particularly in failing to hold a public meeting to hear and decide the application.

Alternatively, Mr Simmons and BIRD contended that if the PSA did not apply, the TPC had no jurisdiction to make the decision it did.

When the matter came on for hearing, all of the parties agreed that the site plan approval was invalid and worthy of being set aside. However, they disagreed over why the approval was invalid.

The TPC maintained that the approval was unlawful because it was made by the wrong body. The TPC submitted that because the PSA was not extended to Harbour Island, it had no authority to approve the development.

The TPC contended that the Local Government Act (LGA) provided that the district council can exercise the powers of the TPC under the TPA. However, since that act has been repealed the PSA must be substituted in its stead. Any decisions the TPC is empowered to make under the PSA must thus be made by the district council.

Meanwhile, 4M maintained that the PSA was not extended to Harbour Island by the Planning Subdivision (Extension to Family Islands) Order 2012 and that Parliament did not intend for the PSA to extend to Harbour Island. Rather, the provisions of the TPA were to continue to govern developments in Harbour Island.

Justice Stewart ultimately ruled that under the TPA, Harbour Island’s district council is “empowered to make decisions, including granting approvals for town planning matters for Harbour island utilising the powers, rights and obligations under that statute.”

But as no decision was made by the district council—something that was accepted by both the TPC and 4M, the site plan approval to develop the marina as granted by the TPC to 4M was “unlawful and without jurisdiction.”

“Their approval and any decision which flowed directly therefrom must be quashed and I so order,” Justice Stewart ruled. “The TPC had no jurisdiction to make the decision as the PSA does not apply to Harbour Island for the reasons set forth above.

“I further order that the marina development be stayed pending an application being made to the appropriate authority and a decision made in compliance with the law. All further relief is denied.”

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