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Shanty town demolitions, evictions can resume after court ruling

By PAVEL BAILEY

Tribune Court Reporter

pbailey@tribunemedia.net

DEMOLITION of shanty town properties and evictions of residents can resume after a Supreme Court Justice lifted a previous injunction on Friday when residents failed to prove such actions would be unlawful.

Justice Cheryl Grant-­Thompson ruled on the “matter of national importance” at the conclusion of a legal battle filed in 2018, with 177 shanty town residents represented by Fred Smith, KC, in a bid to stop government intervention and demolition.

The ruling means that the injunction is lifted and demolition of shanty town properties by the government may resume.

The applicants, under the auspices of non-profit Respect Our Homes Ltd, filed suit against then Prime Minister Hubert Minnis, Minister of Public Works Desmond Bannister, and Minister of Labour Dion Foulkes as well as Attorney General (AG) Carl Bethel.

One of the applicants, Timothy Rolle, claimed he was barred from his residence in the Mudd after Hurricane Dorian as the community was fenced off and guarded by armed Defence Force officers.

The applicants further had issue with the decision for BPL and WSC to disconnect their utilities, claiming a lack of proper consultation, and the blanket eviction notices of these individuals.

An injunction was granted in 2018 but in 2021 it was extended to all of Abaco, following the devastation of Hurricane Dorian, which prevented the government from tearing down structures in the shanty towns. The initial injunction was applied to Abaco then extended to New Providence.

On Friday, Justice Grant-Thompson ruled against the applicants with regard to a judicial review and a constitutional motion. She said: “This was a crucial matter of national importance, accordingly I make no order as to costs.”

She found that the applicants did not come up with sufficient evidence that any move to seize their property was in breach of the law.

With regard to land possession, the Justice acknowledged that Hurricane Dorian was “one of the worst natural disasters in the history of The Bahamas”, but viewed government efforts to tear down buildings in those areas deemed hazardous as not being proof of government intention to possess the land.

She said: “The court is mindful of the duty of the government of the Commonwealth of The Bahamas to remove and even in some instances destroy buildings which the government may view as hazardous to the citizens, inhabitants, or to good public health and safety or otherwise in breach of law. There was no evidence to show acts of factual possession of the aforesaid land on the part of the government.”

She went on to say that shanty towns were not spared the “wrath” of Dorian, but she found nothing “sinister” in efforts by the Minnis administration in regulating reconstruction efforts.

“It [Hurricane Dorian] appeared to have escalated the plans of the government to seek to clean up, assist the indigent, provide aid and ensure that structures were properly built, rebuilt and regulated. The court finds nothing sinister in this government policy to restore public health subsequent to this disastrous hurricane,” Justice Grant-Thompson said.

She also found that the relevant corporations were within their rights to disconnect applicants. She said “the relevant utility corporations are statutorily empowered to disconnect utilities for non-payment of outstanding bills, to conserve supply during periods where it is limited, for the purposes of upgrading their systems, or any other reasonable circumstance that may require a disconnection. The court found this allegation of the applicants to be unfounded.”

She ruled that the statutory process was “duly observed and adhered to”, adding: “In the circumstances the court has ruled that there was not an unlawful policy in place by the government’s decision to disconnect the utilities on the lands in question.”

Justice Grant-Thompson was also satisfied that the decision to issue notices was in compliance with the buildings regulations act.

The applicants had argued that while residences in the Over the Hill community have similar densely populated residences, with derelict vehicles and similar public health risks (ie poor sanitation/water quality), only they face eviction while other areas are the subject of rejuvenation.

Although the Justice found the issue of notice the strongest case for the applicants, she only found three of the nine accusations against the respondents were substantial – those of a decision not taken by an authorised individual, acting under dictation and notices invalid on their face.

For these allegations, the Justice found the notices were duly issued by the Ministry of Public Works and that the relevant Minister only “bordered the line of irregularity”.

She said: “I am of the view that actions of then Ministers Bannister and Foulkes may have bordered the line of irregularity, however I do not accept that the line was crossed.”

She further found these policy decisions and actions were sensitive to the plight of the relevant populations as to minimally affect schooling of children or provide alternative housing within the limits of available resources.

It was also said such moves were in accordance with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child.

Speaking directly to the demolition of houses that did not meet building codes, the Justice said the policy was applied with due notice and consideration.

“As early as 2013, there was evidence of efforts made by the government to compile data regarding conditions in the shanty towns with the stated objective of forming a working committee of all relevant government agencies to formulate a plan to ensure compliance with minimum standards. The resulting studies revealed substandard housing, sanitation (disposal of human waste and access to potable water) and disposal of solid waste and/or access to the aforementioned. The court is satisfied that the minister has the authority to remove or require the removal of dangerous or dilapidated buildings even to the point of demolishing them. Such structures would obviously pose a risk to the health and safety of the public.

“As a result of this ruling, the injunction which was in place covering the ‘shanty towns’ is hereby discharged. The respondents are no longer restrained directly or through their agents, appointees or employees from taking possession of, demolishing any building on, or otherwise interfering with the 177 applicants’ and other residents’ and occupiers’ enjoyment of land in ‘shanty towns’ in New Providence or elsewhere in The Bahamas, including by disconnecting any utilities in accordance with the relevant enabling legislation.”

Despite the removal of the injunction, the Justice advised the government to consult with the court as to what buildings pose a threat to public health and safety. She also refused to impose a conservatory order in court – an order to preserve areas as they are. The justice informed the relevant parties of their right to appeal.

In closing, Justice Grant Thompson thanked her judicial research assistant Kevin Armbrister for his research and assistance in the matter. The justice also commended Fred Smith, KC, for his work, saying he is a “brilliant trailblazer in our country who continuously fights to ensure the rights of persons within The Bahamas are not infringed and our country is better for it”.

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