The Tribune

By FAY SIMMONS

TRIBUNE Business Reporter

jsimmons@tribunemedia.net

ATTORNEYS for the $200m Rosewood Exuma resort’s key opponents yesterday urged the Supreme Court to quash key environmental approvals on the grounds that fairness required further public consultation after major changes were made to the proposed service dock and its breakwater.

Peter Village KC, acting for Turtlegrass Resort & Island Club, told Justice Leif Farquharson KC that his clients are not arguing that every change to a development automatically required regulators to restart consultation. Instead, he said the test was whether the changes were sufficiently material that fairness required affected parties to be given another opportunity to respond.

“The test is fairness, not fundamental difference,” Mr Village said. He pointed to the relocation of Rosewood Exuma’s service dock, changes to its design and footprint, changes to the seawall or breakwater, and potential effects on currents and sediment transport.

Mr Village argued that those changes were directly relevant to the environmental impacts that had to be considered under the Environmental Impact Assessment (EIA) regulations and the developer's own terms of reference for the EIA. He rejected arguments by the Government and the developer, Miami-based Yntegra Group, that the changes simply emerged from the consultation process.

Turtlegrass's original position, he said, was that the service dock should not be located in North Bay at all. Moving it further north-east within North Bay and adding a substantially longer breakwater therefore created a new proposal with potentially different environmental consequences.

The proposed breakwater was approximately 400 feet long, Mr Village said, arguing that its scale made the environmental consequences particularly significant. “It will affect the movement of the currents. It will affect the movement of the sand. It will have a dramatic impact,” he said.

Those changes mattere not only to Turtlegrass but to other parties using or depending on North Bay, he argued. Mr Village said the potential movement of sand could affect beaches, coral and seagrass, while changes to water movement could create areas where sediment became stagnant.

He also pointed to a dredging plan requested by the Department of Environmental Planning and Protection (DEPP) in May 2025, arguing that it represented new information on a central environmental issue that had not been available to the public during the original consultation.

Turtlegrass was not seeking an endless series of public consultations every time a developer modified its plans, Mr Village said. Its position was that the particular changes to the structures in North Bay, directly opposite Turtlegrass and Over Yonder Cay, were of such a nature and extent that fairness required further consultation.

Fred Smith KC, also representing Turtlegrass, then took Justice Farquharson through the service dock issue in greater detail, arguing that the environmental documents available during the consultation did not contain sufficient information about the dock that was ultimately proposed.

He said the original service dock proposal was in a different location, and that subsequent documents showed the development moving to another location with substantially different breakwater designs.

Mr Smith argued that the EIA did not adequately assess the environmental effects of the actual dock design ultimately presented to the regulator. He pointed to the location, design, excavation requirements, breakwater length, flushing, currents and sediment transport as matters that needed to be properly assessed.

The fact that Bahamians knew a service dock was generally contemplated for North Bay was not enough, Mr Smith argued. “Knowing that a service dock was proposed somewhere in the North Bay is not the same as knowing its specific location,” he said.

He argued that DEPP needed information about the actual location and design so that both itself and affected parties could assess its environmental effects.

Mr Smith also challenged the decision not to pursue a southern alternative for the service dock. He said evidence from Dr Rihana Neeely-Murphy, DEPP’s director's, showed that the decision was based on documents supplied by the developer which focused on the commercial, architectural and aesthetic considerations of the resort.

Mr Smith directed the court to language describing the southern alternative as conflicting with the developer's “luxury-focused super yacht berthing programme” and the residential aesthetics central to the master plan's high-end appeal. He argued that the material did not contain a proper assessment of the environmental consequences of the alternative locations.

“There is not an analysis or an assessment of environmental impacts,” Mr Smith told the court. He argued that there was therefore no proper basis for the DEPP director to make a rational decision about the service dock location before granting the relevant environmental clearance.

Mr Smith also returned to the timing of the service dock information. He said the first service dock proposal had been the subject of an earlier certificate of environmental clearance (CEC) application, and that the DEPP director had already granted CEC 2400 before the September 2024 public consultation.

The certificate was subsequently revoked and replaced with CEC 2400A, but Mr Smith argued that the public was not properly informed of the significance of those changes. He pointed to later flushing analysis, architectural designs and marine habitat information which, he said, was produced after the consultation period had closed.

Mr Smith argued that environmental studies prepared after consultation could not cure the absence of that information during the public process because affected parties had no opportunity to comment on it. He also argued that the revised service dock location and longer breakwater warranted additional environmental analysis that the DEPP director failed to require.

The CEC 2400A issue formed a separate part of Mr Smith's closing submissions. He described that matter as “a very simple case”, and asked whether the DEPP director had statutory power to revive or extend CEC 2400A after it had expired. CEC 2400A expired on October 8, 2025, while Dr Neely-Murphy purported to extend it in December 2025 and again in April 2026, the court heard.

“The point is not a technical one,” Mr Smith said. He argued that the statutory scheme requires environmental clearance before work begins or continues and that, once a CEC expires, the developer must return to the statutory process.

According to Mr Smith, there was no fresh application, preliminary review, EIA, environmental management plan (EMP) or public consultation before the expired CEC was extended.

He said there was therefore “nothing to extend” once the certificate had expired, and that the lawful course was a fresh application and consideration under the environmental regulations.

Mr Smith argued that accepting Yntegra's and the Government’s position would effectively allow an expired environmental approval to be revived without going through the safeguards Parliament established for environmental clearance.

Romauld Ferreira, appearing for Over Yonder Cay, gave a brief closing submission in which he adopted the arguments already advanced. He added that Over Yonder Cay shares North Bay and depends on beach sand flows, but said none of the consultation overtures relied upon by the Governmenrt and Yntegra involved Over Yonder Cay going on to the development site.