The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge yesterday rejected the bid by Old Fort Bay’s developer for permission to appeal her ruling on its marina expansion as battle with the community’s homeowners continued.

Justice Indra Charles said the move by New Providence Development Company, and its Old Fort Bay Company affiliate, “has no prospect of success” because she had “wide and unfettered powers” to require that further evidence be obtained before deciding whether the marina expansion can proceed.

The verdict reveals that New Providence Development Company, within two weeks, sought to appeal all aspects of Justice Charles’ January 4, 2022, ruling deemed unfavourable to it amid its long-running legal dispute with the Old Fort Bay Property Owners Association and two individual homeowners, Matthew Chance Hudson and Zsuzsanna Marta Foti.

That decision, while confirming the developer owns the Old Fort Bay Club and marina, and had the right to sell-off two other parcels of land, ordered that “a comprehensive” Environmental Impact Assessment (EIA) be conducted - and all adjoining property owners be consulted - before the Supreme Court would give the go-ahead to a marina expansion that was approved nine years ago.

Justice Charles said it was “untenable” for New Providence Development Company to argue that the court was “usurping” the statutory planning functions of the executive - namely the Ministry of Works, Town Planning Committee and Department of Environmental Planning and Protection (DEPP) - by ordering that an EIA be conducted by an “expert” agreed by all sides.

Rejecting the arguments by the developer’s attorney, Gail Lockhart-Charles QC, Justice Charles wrote: “The court is not precluded from obtaining an objective Environmental Assessment report merely because it is relevant to the planning approval phase.

“Mrs Lockhart-Charles’ suggestion that the court has usurped the functions of the Subdivision Planning Approval Committee is untenable because the court has not set aside planning approval - and cannot do so. It is a matter that the court will consider in determining this discrete issue of the marina expansion. It is for the court, not counsel, to determine the issues.”

Site visits to the Lyford Cay and Albany marinas were also part of the conditions imposed by Justice Charles in determining whether to approve an Old Fort Bay marina expansion that has been halted for nine years, despite all the necessary permits having been obtained in 2013 for what the developer asserts is merely the installation of additional floating docks.

Mrs Lockhart-Charles last night said she and her client remained steadfast in their belief that the marina-related orders effectively mean the court is taking the place of the executive when it comes to making planning permit decisions.

“It is within the jurisdiction of the DEPP to determine issues relating to EIA assessments, and with regard to permission to build,” she argued. “The developer took all the steps required to be taken in the permitting process prior to commencement of this action, and obtained its permits prior to this action.

“We do not agree that it is the role of the court to determine whether a developer can be permitted to build, modify or expand a marina that the court has said belongs to it. That is a matter for the Ministry of Works and DEPP.... The court is not the decision-maker. In our view it is not correct for the court to take on the role of decision-maker. Let the decision-maker make the decision, then intervene.

“This is about process, and we do not think it a correct process for the court to be requiring an EIA and public consultation. These are matters within the jurisdiction of the DEPP director under the EIA regulations and the Environmental Planning and Protection Act.”

Emphasising that she nevertheless respected Justice Charles’ ruling, Mrs Lockhart-Charles added that statute law gave the DEPP director the discretionary power to determine whether an EIA was required for a specific development and a “public meeting to be held”.

She argued that the court’s proper role was to determine any Judicial Review challenge that might be brought by the Old Fort Bay Property Owners Association, and its individual members, to the marina permits once they were granted. Justice Charles, though, did not see it that way.

In what was a near-total victory for the Association and its members, she also rejected New Providence Development Company’s efforts to “stay” the enforcement of other orders in her initial ruling.

These included damages the developer must pay for selling an area of common property belonging to the Association, as well as that it transfer all such areas to the homeowners including the lands by Old Fort Bay’s security gate. Both sides have agreed, though, that the “status quo” on the gated community’s security gate be maintained until the appeal on this issue is heard.

Sean Andrews, the Old Fort Bay Property Owners Association’s chairman, told Tribune Business via a written statement last night that it was “unconscionable” for New Providence Development Company to drag out the Beach Reserve’s return given that it should have been handed over “more than a decade ago”.

“The court denied the developer’s request for leave to stay the aspects of the court’s judgment that were in favour of the Property Owners Association, more particularly the long-awaited handover of the common areas which is vitally important to the Property Owners Association along with the payment of damages for the sale of the designated beach reserve by the developer,” he said.

“It seems unconscionable that the developer would now refuse to hand over the common area that ought to have been handed over to the Property Owners Association more than a decade ago.”

As for the marina, Mr Andrews added: “The developer also sought to appeal the court’s case management powers in relation to the developer’s proposed marina installation at a stage when the developer has sold virtually every lot in the development and hand over of control to the Property Owners Association has occurred.

“The court has clearly acted prudently with respect to the developer’s proposed marina, and the Property Owners Association remains confident that the court will determine this issue in their favour having regard to the surrounding facts and the overwhelming wishes of the owners and residents of Old Fort Bay who oppose the proposed marina installation.

“It remains the Property Owners Association’s overreaching intention to bring closure to this matter in the interests of the residents of Old Fort Bay.” Justice Charles, meanwhile, made clear she was less than impressed by “spurious and unsubstantiated allegations” contained in Mrs Lockhart-Charles’ submissions.

These suggested that the court “conspired” with the Property Owners Association’s attorney, Krystal Rolle QC, to alter the “draft” version of the original January 4 judgment in favour of the latter’s clients. Justice Charles, as a result, issued a reminder about contempt of court proceedings brought against other Bahamian attorneys, namely Donna Dorsett-Major, over similar claims.

“This is a serious indictment on the court and a highly-respected Queen’s Counsel. Mrs Lockhart-Charles does not have a shred of evidence to substantiate her baseless and speculative allegations. This kind of behaviour is disturbing,” Justice Charles wrote.

“In addition, it is also not healthy for the administration of justice in this country. The court is the last bastion of hope for preserving and protecting the constitution, the ultimate guardian of democracy, justice and people’s fundamental rights.

“Correspondingly, judges should be above reproach in the eyes of a reasonable observer, for their conducts and behaviours are the key to maintaining public faith in the judiciary..... I do hope that Mrs Lockhart-Charles will retract these speculative and fanciful allegations which have no place in a court of law. I say no more.”

Pointing out that it was clear to all parties that the initial verdict circulated to them, prior to the January 4 final version, was a “draft” that was subject to change, Justice Charles also dismissed claims by New Providence Development Company that “the inordinate delay of 18 months to deliver the judgment compromised the court’s understanding of the issues”.

“Mrs Lockhart-Charles QC, appearing for the developer, submitted that the delay is exacerbated by a further eight years between the commencement of the action, which has prevented the developer from developing his own land in accordance with the Planning Approval granted in 2013... and the commencement of the trial,” Justice Charles noted.

While acknowledging that the delay was “inordinate”, Justice Charles said the COVID-19 pandemic and complexity of the case, together with a 13-day trial and the volume of evidence produced by both sides, were mitigating factors. And she noted that both sides were responsible for pre-trial delays.

“The court, very cognisant of the legal maxim ‘justice delayed is justice denied’, and that judgments ought to be delivered in a timely manner, strives to achieve that goal but this is not always possible, especially with a busy calendar and administrative challenges. But no reason is a good reason for any delay,” Justice Charles wrote.

“I do not agree with Mrs Lockhart-Charles that the court’s understanding of the issues was compromised by the delay in the delivery of the judgment. In fact, it seems odd to me that the developer was satisfied with the issues which were decided in its favour but found that the judge fell into obliviousness when it came to those issues which were not in its favour....

“In any event, the 17 months’ delay in rendering the judgment did not compromise my understanding of the facts and issues. In my judgment, the developer’s preliminary objection with respect to inordinate delay is hopeless and is doomed to fail.”