The Tribune

By ANNELIA NIXON

TRIBUNE Business Reporter

anixon@tribunemedia.net

THE WARRING parties battling over the $200m Rosewood Exuma project yesterday clashed over procedures and witness evidence amid constant interruptions during yesterday’s appeal seeking to overturn the development’s preliminary site plan approval.

The Subdivision and Development Appeal Board hearing, which pitted the developer, Miami-based Yntegra Group against its main opponents, the neighbouring Turtlegrass Resort & Island Club and Yonder Holdings, the Over Yonder Cay developer, became bogged down in arguments over whether the latter duo should be permitted to call additional witnesses and if the appeal must remain confined to its existing record.

The dispute escalated after attorneys for Turtlegrass and Yonder Holdings indicated they intended to call as many as eight witnesses to give evidence about what occurred during earlier Town Planning Committee (TPC) meetings, including allegations that individuals were prevented from fully presenting environmental concerns and the impact on neighbouring land.

Peter Village KC, representing Turtlegrass, argued that the proposed witnesses were necessary because some matters could not have been placed into the record of appeal after his clients were allegedly cut off during the Town Planning Committee proceedings.

“One of the grounds of appeal is that people tried to speak to the Town Planning Committee and they were cut off,” he said. Mr Village said it would be circular to prevent the witnesses from testifying, because their evidence was not contained in the record, when the reason it was absent was that they had allegedly been prevented from giving it in the first place.

The Board, however, stressed that its jurisdiction was tied to the record of appeal and questioned why the additional witnesses had not been identified during an earlier preliminary hearing.

Dr Roosevelt Whymms, deputy chairman of the Board, said it would consider an application for additional witnesses but cautioned that no approval had been given for the proposed evidence.

Robert Adams KC, representing Yntegra, objected and argued that appellants had not identified the eight witnesses, provided witness statements or explained what each witness would say and why their evidence was relevant.

He said introducing the witnesses at this stage would amount to “trial by ambush” and leave his client without adequate time to prepare for cross-examination.

“For Mr Village to say at this hour of the day into the proceedings that ‘I have eight witnesses to call’ is ambush…” he added. Mr Adams also maintained that the appellants had previously been given an opportunity to raise procedural issues at the preliminary hearing.

Attorneys for Turtlegrass argued they had not been required under the rules to give advance notice of every witness they intended to call. Mr Village said the proposed witnesses would address what happened at the Town Planning Committee meetings, what they attempted to raise and the effects of the development on neighbouring property.

He also argued that the appellants’ environmental concerns could not fairly be tested if witnesses who could establish what occurred at the earlier hearings were excluded. The appellants also challenged the amount of hearing time allocated to the appeal, arguing that two days were insufficient given the procedural disputes and the number of issues still outstanding.

Fred Smith KC, also representing Turtlegrass, said the parties had spent substantial time dealing with expert evidence and other procedural matters rather than the merits of the development itself.

The Board’s frustration with the direction of the proceedings became increasingly apparent. Dr Whymms said he had expected the hearing to focus on why the project should proceed or why it should not proceed, rather than continuing with procedural exchanges. He urged both sides to present their respective cases so the Board could consider the substantive issues before it.

The hearing then erupted into an exchange over interruptions. During one exchange, Mr Village repeatedly told Mr Adams to stop interrupting. Later, Mr Village accused the Board of allowing Mr Adams to continue interrupting Mr Smith, and alleged that the Board was being unfair and biased.

Dr Whymms rejected the confrontational tone, telling the parties that the hearing was not a “war zone” and that each side was expected to present its case to the Board.

“This is not a war zone,” he said. “This is not a place of contention. In here, you present your case and that’s all.”

The Board ultimately indicated that any party seeking to introduce additional witnesses would have to make a formal application for it to determine whether the evidence should be admitted. Dr Whymms made clear, however, that the Board was not approving the proposed eight witnesses simply because Mr Village had announced them.

Mr Adams argued that the continued appeal prevents the developers from moving forward with the project, and therefore any delay causes prejudice to his clients. The appellants rejected the suggestion that their procedural applications were simply intended to delay the development.

Mr Smith pointed to the project’s Heads of Agreement with the Government, arguing that the agreement restricts construction until specified approvals, certificates and permits have been obtained.

He also raised concerns about work allegedly undertaken at Sampson Cay, and referred to environmental approvals and other authorisations associated with the project.