The Tribune

By FAY SIMMONS

TRIBUNE Business Reporter

jsimmons@tribunemedia.net

ATTORNEYS for the $200m Rosewood Exuma resort’s developer yesterday urged the Supreme Court not to turn the Judicial Review challenge launched by its opponents into a re-run of the environmental merits, arguing that the approvals by government regulators should stand.

Robert Adams KC, the Delaney Partners attorney and partner representing Miami-based Yntegra Group, argued that the court’s role was not to substitute its own assessment of the environmental merits for that of the Dr Rhiana Neely-Murphy, director of environmental planning and protection, but to determine whether she acted within the powers given to her by law.

He made the argument as he closed the developer’s defence of the environmental approvals for its proposed East Sampson Cay development before Justice Leif Farquharson KC. A major part of his closing submissions focused on allegations by the neighbouring Turtlegrass Resort & Island Club that his client’s development had been improperly fragmented through granting separate certificates of environmental clearance (CECs).

Mr Adams rejected that argument, noting there was nothing inherently unlawful about staging development works or submitting separate applications for particular components. “Staging or making separate applications is not unlawful. Separate CECs without more is not unlawful,” said Mr Adams.

He accepted that deliberately evading or circumventing an environmental impact assessment (EIA) would be unlawful, but said there was no evidence that Yntegra had done so.

“Ultimately, the facts and the evidence in this case do not support a finding that there was either an intent on the part of the developer to evade impact assessment in relation to any aspect of the project,” Mr Adams said. He argued that the same conclusion applied even if the court considered the developer’s intention irrelevant and assessed the issue objectively.

“There is no support for the conclusion that there was evasion; a risk of evasion of any kind from assessment,” said Mr Adams. He also argued that the environmental assessment process remained open to further scrutiny by DEPP.

In particular, Mr Adams pointed to a proposed solar farm component which had not yet been determined by DEPP, noting that Dr Neely-Murphy retained the power to request further information or require public consultation before making a decision.

He said there was therefore no basis for assuming that any part of the project would escape environmental scrutiny. Mr Adams also challenged the applicants’ criticisms of the treatment of geotechnical works.

He pointed to a September 2024 letter from the Department of Environmental Planning and Protection, which allowed public consultation on the revised EIA to proceed without the geotechnical investigation being completed.

However, the letter expressly required Yntegra to submit amended environmental documents and conduct another public consultation if the geotechnical investigation resulted in changes to the project’s environmental footprint.

“It couldn't be any clearer that the director gave proper consideration to the risk,” said Mr Adams. He argued that this demonstrated that the director had considered the possibility that the geotechnical works could produce environmental consequences, and had put a mechanism in place to address any material changes.

Mr Adams also relied on the principle that environmental assessment is an ongoing or “iterative process” rather than a one-time exercise that ends when an EIA is approved. He cited previous judicial authority describing environmental control as a process that does not stop with approval of an EIA.

“It was wrong to approach an EIA as if it represented the last opportunity to exercise any control of the project which might damage the environment,” Mr Adams said, quoting the authority relied upon in his submissions.

That principle, he argued, was particularly important in the Rosewood Exuma case because the environmental regulator retained the ability to require additional information, studies and consultation as the project progressed.

Mr Adams also addressed claims that the environmental information made available during consultation was deficient. He rejected the suggestion that the EIA process was incomplete simply because additional environmental information or studies were subsequently produced.

His argument was that the regulatory framework allows the DEPP director to require further information where necessary, and that environmental control does not end with the initial EIA.

On consultation, Mr Adams argued that the relevant question was whether the director had acted within her discretion in determining the extent of consultation required.

He said the regulator had received substantial environmental information, considered the project and its revisions, and had the ability to require additional consultation if she considered it necessary. The service dock was among the project components discussed during the hearing.

Mr Adams argued that its relocation and subsequent changes did not demonstrate that the original environmental assessment had been circumvented.

Instead, he said the changes illustrated the nature of the process, with environmental information and concerns being considered as the development evolved. Mr Adams also challenged the argument that changes to the project automatically required the entire public consultation process to be repeated.

The regulatory framework, he argued, gives the director discretion to determine whether changes are significant enough to warrant additional consultation.

Mr Adams also addressed the proposed solar farm, which he said emerged after the original consultation process following discussions about increasing the project's use of renewable energy. He argued that the solar proposal did not establish that the development had been improperly fragmented.

“That is not project splitting. That's a modification, or that's an addition, or an expansion, which is allowed and contemplated under our local regulatory framework,” Mr Adams said.

He added that the solar farm application remained open before the regulator, and that DEPP retained the power to request additional information or require public consultation.

Mr Adams ultimately argued that Turtlegrass and the Over Yonder Cay developer had not established the legal errors required for the court to interfere with the environmental decisions.

The court, he said, should not replace the director’s judgment with its own simply because another approach to the environmental issues might have been possible.

The four-day Judicial Review hearing concluded with Justice Farquharson allowing all sides seven days to file written reply submissions addressing additional authorities introduced during the respondents’ arguments.

The judge made clear that the seven-day period was limited to responding to those additional authorities rather than opening a new general round of submissions.

The court is now expected to consider the parties’ final written submissions before ruling on the challenge to the environmental approvals for the Rosewood Exuma development.