The Tribune

By NEIL HARTNELL

Tribune Business Editor

A WELL-known QC yesterday said his clients were being left with no choice but to file Judicial Review proceedings to halt a proposed 16-room boutique resort project on Exuma's Stocking Island, arguing that the Government's failure to follow the Planning and Subdivision Act was "a glaring example of the challenges" faced with Family Island developments.

Fred Smith, the Callender's & Co partner who is acting for David and Carol Higgins, owners of Hotel Higgins Landing on Stocking Island, told Tribune Business that despite writing to a variety of government figures and agencies to express their concerns, all had "remained mute" and chosen not to reply.

He told Tribune Business that the Higgins' central complaint was that the Government, acting through the National Economic Council (NEC) and the Bahamas Investment Authority (BIA), had approved the 16-cottage project proposed by Good Hope Property on land adjacent to theirs without following the statutory processes laid out in the Planning and Subdivisions Act 2010.

This legislation, enacted by the Ingraham administration during its latest term in office, provided those impacted by development "a right to be heard", Mr Smith said, as well as requiring an Environmental Impact Assessment (EIA) and public consultation prior to approval.

None of this had occurred with regard to the proposed Stocking Island project, he added, with the Government appearing to "sidestep" the new Act through the NEC. The Planning and Subdivision Act 2010 also took the responsibility for approving developments away from local government/district councils and centralising this with the New Providence-based Town Planning Committee.

In a March 26, 2012 letter to Earl Deveaux, minister of the environment, Mr Smith said the land adjacent to his clients', known as Lot Five, had been cleared with paths between five-eight feet wide cut right down to the shore. Lot 5, which was said to lie within a wetland, had been studied by Earthwatch several years ago.

"Mr and Mrs Higgins had not received notice of any application for permission for development, and were not aware of any inspection of the site having been carried out," Mr Smith alleged.

"Mr and Mrs Higgins have recently been told by Mr Nixon of the local Town Planning Committee that the Bahamas Investment Authority (the BIA) had approved a project for the construction of a 16-unit hotel on Lot 5 after the local Government had informed the BIA that it had 'no objections' to the project. The BIA later confirmed that the National Economic Council (the NEC) had approved the project."

Noting that the Planning and Subdivision Act came into effect in the Family Islands on October 1, 2011, Mr Smith questioned whether all the requirements of the Act had been met when it came to the Good Hope Property project. There is no suggestion, though, that its developers, owners or officers/employees have done anything wrong.

"The Act does not allow its strict requirements to be overridden by the NEC or any other body. All of the executive organs of government must adhere to the legislation which governs the Bahamas," Mr Smith wrote to Mr Deveaux.

"There is no evidence that we have been able to find that the Town Planning Committee (the TPC) as appointed under the Act and/or the Department of Physical Planning (the DPP) have approved the development on Lot 5 in accordance with the Act, or that any entity has given due consideration to the factors specified by the Act or followed the procedure prescribed therein."

Mr Deveaux did not return two Tribune Business voice mails left on his cell phone yesterday seeking comment, while his office phone was not answered. Despite leaving a message for Michael Major, director of physical planning, informing him what the call was about, he did not respond to Tribune Business either.

Summarising the issues and his clients' concerns yesterday, Mr Smith told Tribune Business: "I continue to be shocked and amazed by the complete disregard that the central government and the International Persons Landholding Act Board display to their own citizens in the Family Islands.

"The Planning and Subdivision Act gives those affected by development an opportunity to be heard, and requires an EIA and process of consultation. Despite having passed this legislation, as can be seen from this Stocking Island situation, it's more lip service to local rights.

"It's the same old story - central government giving some omnibus approval that dictates to everyone else what needs to be done. No one is answering us, we have to sue and are painted as radicals."

Apart from Messrs Deveaux and Major, Mr Smith showed copies of all other correspondence sent to government agencies and officials on the Stocking Island matter. They include Viana Gardner and Joy Jibrilu at the Bahamas Investment Authority (BIA), the NEC secretary, Good Hope Property Ltd, the Investment Board, Exuma District Council and the chairman of the Town Planning Committee.

The Callender's & Co QC said no reply had been received from any of them, and added: "I don't understand why the Government and its agencies would remain silent on these letters we have written. The agencies of government stand mute despite their obligation to respond.

"What do we do? The citizen and resident is left with no alternative but to bring extensive and adversarial Judicial Review proceedings. My clients don't want to sue their potential neighbours, they don't want to sue government agencies, but if they don't respond what choice do we have left?

"It is regrettable that this situation must be publicised, but is a glaring example of the challenges that continue to be faced in the Family Islands."

Noting that the Supreme Court had previously rejected several Judicial Review proceedings he had brought on the grounds that they had been 'delayed' in starting, Mr Smith said: "We are left with no alternative s to strike while the iron's hot, regrettable as that may be." He added that he was set to file Judicial Review proceedings in the matter "probably next week".

In his letter to Mr Major, Mr Smith asked the physical planning director to "confirm" whether he was unaware of the 16-cottage Stocking Island development prior to his clients writing to him about it.

"It is clear to us that the development cannot possibly have been properly approved without your department being aware of it," the QC added.

And in a March 26, 2012, letter to Ms Gardner at the BIA, Mr Smith asked about the nature of approvals granted, and whether these were in accordance with the Planning and Subdivision Act.

"Unfortunately, it appears that the NEC appears to be purporting to approve developments without being fully appraised of the requirements of the legislation in this area," Mr Smith wrote. "For the avoidance of any doubt, the NEC cannot sidestep the requirements of the Planning and Subdivision Act 2010."