The Tribune

• Ultra wealthy residents not giving up despite legal retreat

• Developer refutes claims Supreme Court Order violated

• Says all permits in; not told of action until 12 days prior

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A four-year battle involving a prominent developer and some of Harbour Island’s ultra wealthy landowners is escalating once again over disputed claims that a Supreme Court Order has been violated.

The ongoing fight between developer Chad Pike and his Bonefish Alley Ltd entity, which is constructing a harbour side beach in the area known as the Narrows, and some of the project’s neighbours has been branded Briland’s equivalent of the decade-long battle between Louis Bacon and Peter Nygard by several locals spoken to by Tribune Business.

For ranged against Mr Pike and Bonefish Alley are a group of high-end expatriate Harbour Island homeowners including Arpad Busson, the hedge fund magnate, a former husband of super model, Elle Macpherson, known as ‘The Body’, and also ex-partner of Hollywood actress, Uma Thurman.

Fellow Narrows residents who have joined Mr Busson in seeking to overturn Bonefish Alley’s permits, and halt its beach construction, are Antony Beck, a wine mogul whose Beck Family Estates business owns wineries and vineyards in South Africa and the US state of Oregon, and who is also a prominent figure in horse racing and breeding. Another is Robert Miller, a Hong Kong-based billionaire who co-founded DFS (Duty Free Shops), and whose daughter is the Crown Princess of Greece.

The controversy has reignited in recent weeks after Bonefish Alley’s opponents were given permission by the Supreme Court to withdraw the second Judicial Review action they launched in late 2021, challenging the permits and approvals granted for the beach construction by both the Department of Environmental Planning and Protection (DEPP) and Harbour Island District Council (HIDC).

The discontinuation application was made on June 28, 2022, the same day that Justice Camille Darville-Gomez was supposed to hear the substantive Judicial Review case. This came more than seven months after Mr Busson and his fellow homeowners first obtained the Supreme Court’s permission to bring the legal proceedings.

That permission, granted on November 11, 2021, at a hearing where only the attorneys for Mr Busson and his group were present, was also accompanied by an Order that “stayed” both the public consultation process over Bonefish Alley’s beach development and the “decisions, permits and approvals” granted by the DEPP and Harbour Island District Council.

Bonefish Alley’s opponents believe that “stay” was sufficient to halt further construction activity, and they are accusing it of breaching the Supreme Court’s order by proceeding with the beach development. They are understood to have withdrawn the Judicial Review action because the beach’s creation has reached a stage where any quashing of the permits would be meaningless since it is near completion.

Since the June 28 withdrawal, the dispute has heated up further. The Tribune has been bombarded by anonymous messages, seemingly from the project’s opponents or someone allied with/supporting them, all alleging that Bonefish Alley has “ignored a ‘stay’ order from the Supreme Court and completed construction of a beach development project in the ultra-exclusive Narrows neighborhood of Harbour Island.......

“The grant of leave functioned as a ‘stay’ on the implementation of the aforementioned decisions, approvals and permits. Legal action has been halted due to the fact that the ‘stay’ Order appears to have been ignored and the construction on the project completed.” This assessment, though, is being vehemently denied and disputed.

Bonefish Alley and Mr Pike’s position is that they hold all the necessary permits and approvals for the beach construction project. And, besides not being named as a party to the Judicial Review action, Bonefish Alley told this newspaper it was not informed about the June 28 hearing before Justice Darville-Gomez until just 12 days beforehand - and more than six months after the November 11, 2021, Order was granted.

That alert is understood to have come from the DEPP, rather than Bonefish Alley’s opponents or their attorneys, leaving Mr Pike and his company to question how they could have breached a Supreme Court ‘stay’ order through continued construction work when they knew nothing of its existence.

And they are also refuting the allegation that they violated any “stay” Order. Basing its contention on a prior Privy Council ruling, Bonefish Alley is understood to be arguing that a ‘stay’ does not operate or function like an injunction since it only applies to a decision-making process and therefore cannot be breached by parties to legal proceedings. In the absence of an injunction, its position is there is nothing to violate.

“Bonefish Alley properly obtained all permits required to build a beach on its property. Bonefish Alley first learned of the proceedings against the Department of Environmental Planning and Protection and the Harbour Island District Council on June 16, 2022,” Bonefish Alley told Tribune Business yesterday in a statement issued via its attorneys.

“Upon learning of the proceedings, Bonefish Alley was prepared to defend its permits at the hearing on June 28, 2022. However, the opponents of the project withdrew their challenge on the day of the hearing. Bonefish Alley intends to continue its development of the beach in accordance with the validly issued permits and authorizations it has received.”

Mr Pike and Bonefish Alley are understood to view the ongoing attacks as malicious harassment now that the latest Judicial Review challenge has been withdrawn. However, it appears that nothing is deterring their opponents, who are continuing to allege that the beach violates land use or zoning regulations - which stipulate The Narrows is for residential use only - amid claims it is a commercial project.

“It appears there is considerable concern that Bonefish Alley may be circumventing zoning or land use approval regulations to create what is, in effect, a boutique hotel, much to the dismay of the residents of The Narrows,” one of the anonymous statements sent to The Tribune reads.

“That’s the core question,” one source, speaking on condition of anonymity, said. “The question of whether it’s a development compatible with what else is taking place in that area. It’s primarily for second home residences, and many of the neighbours believe they intend to use that property for commercial development.”

This was vehemently denied by Bonefish Alley executives when the DEPP staged a public consultation on the project’s permit applications in late 2020. They said in response to repeated questioning that the beach would be “solely for residential use”, with some eight inches of sand placed on the rock that exists at the site.

Mr Pike is principal of Eleven Experience, a high-end travel company that creates custom-made experiences and adventures for its guests through a network of boutique properties that it owns and operates worldwide. Its property on Harbour Island is Bahama House, which features 11 guest rooms with capacity for 22 guests, and is located in the centre of Dunmore Town.

Bonefish Alley’s beach development plans have had to survive not one but two Judicial Review challenges. The first, before incoming chief justice, Ian Winder, was launched on August 24, 2018, and sought to challenge the permit granted by the Harbour Island District Council for construction of a rock groyne as well as the then-Bahamas Environment, Science and Technology (BEST) Commission’s decision to give the project the go-ahead.

Justice Winder, in his ruling on February 11, 2020, noted that Bonefish Alley’s beach was “proposed to be similar to the one located at a neighbouring property”. While he upheld BEST’s decision, he quashed the permit issued by the district council because it had failed to live up to its pledge to “pursue proper consultation”, while also finding the approval “did not reflect the true decision” by failing to detail the conditions imposed in return for its granting.

Undeterred, Bonefish Alley resumed efforts to procure the necessary permits and approvals, which led to the November 26, 2020, virtual public consultation arranged by the DEPP. John Featherman, Bonefish Alley’s representative, affirmed that the beach development was for residential as opposed to commercial use in response to repeated questioning from JJ Percentie, Harbour Island’s deputy chief councillor.

“The family that owns this piece of property does own a piece of property on the other side of the island; that’s very well known. The family that owns this property also owns a commercial operation in the centre of town, as you well know. This is a residential property that is meant to be enjoyed in a residential fashion,” Mr Featherman said.

Gail Lockhart-Charles QC, Bahamian attorney for Bonefish Alley, added: “This owner; this developer is seeking to do things the right way. This developer is seeking permits and approvals in full transparency, submitting all of the relevant planning and studies that are necessary by law to support the application.

“So I don’t think that they should be criticised for seeking to go through the process applying for the permit. There’s no guarantee that they can get approval, and I fully agree with you that nobody can just go and get what they want, and anyone that does go and do what they want is rightfully fined, but this is not what this developer is doing. This developer has put in the application to do things properly.”

This was seized on by Mr Percentie, who said: “Miss Gail...Miss Gail.... you’re using the right word – developer. A developer comes in for commercial use of a property. This is not a resi....” He was interrupted by Mrs Lockhart-Charles, who replied: “Mr Percentie, I just want to be fully clear - a developer refers to anyone that is developing property.

“The law doesn’t make a distinction in terms of how someone seeking approval is described. It’s a developer whether its residential development or commercial development, it’s still a developer and this is a residential development.”

The public consultation then saw an intervention by Robert Adams QC, the Delaney Partners attorney who, in confirming that he represented the project’s Narrows neighbours and opponents, branded the meeting as “an ambush” because no notification had been given of the permits and approvals that were to be considered.

“I respectfully contend that this process is flawed. It is flawed from the outset, it’s flawed now, and any decisions made in respect from it will also be flawed..... This needs to stop and start again, and I implore you director, and District Council, to do so,” Mr Adams blasted. “This should stop. Engage the public in a proper consultation exercise.

“The Act and the regulations under the Act speak very clearly as to what should be contained in a notice, who should publish the notice, where it should be published, and then you come and you set up a meeting at 7pm on Thanksgiving night.

“It feels like an ambush. You may not have intended to be so, but that’s the way it feels. It feels like a fast. So, I wish for the record to reflect, in no uncertain terms, our objections to this entire process. If the process is not stopped, we will mount legal challenge to ask the court to intervene and we will do so swiftly, because this process is fraught and riddled with defects.”