The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Government has allegedly admitted to environmental activists that it cannot enforce its own Planning laws because it would “go bankrupt” in trying to do so.

Activists belonging to the ReEarth group, which yesterday successfully obtained leave to bring Judicial Review proceedings against the controversial Blackbeard’s Cay project, alleged that the Department of Physical Planning’s head confessed to them that the Government lacked the finances to hold public consultations on every development project.

The claims, contained in ReEarth’s filings with the Supreme Court, contain details of a June 6, 2013, conversation that allegedly took place over Blackbeard’s Cay between Michael Major and Sonya Alvino, ReEarth’s head of communications.

“In the course of this telephone call, the director of physical planning confirmed that no public meetings had been held in relation to the facility [Blackbeard’s Cay] because it is ‘too costly to hold public meetings on every development’ taking place and ‘if we were to do that we would be ‘bankrupt’,” ReEarth’s amended Judicial Review application alleges.

This, the environmental group claims, violates the Planning and Subdivisions Act 2010, which required a public hearing to be held prior to the Town Planning Committee’s consideration - and approval - of Blackbeard’s Cay’s site plan.

This is one of the key grounds behind ReEarth’s Judicial Review application, and Ms Alvino repeated her version of the phone conversation with Mr Major in a June 10, 2013, e-mail sent to environment minister, Kenred Dorsett.

“We have also requested information on the public consultation of this enterprise by Town Planning in the Department of Physical Planning, and I was told personally by Mr Major that he does not have the funding to conduct public meetings on every development,” Ms Alvino wrote in the e-mail, which was filed with the Supreme Court.

“Therefore, no public consultation was offered,” she added in relation to Blackbeard’s Cay. “Indeed, the Department of Physical Planning has not even consulted with any animal agency in the Bahamas on this venture.”

That refers to Blackbeard’s Cay’s importation of eight dolphins to its Dolphin Encounter attraction, with ReEarth also challenging the permits and approvals the developers received in this area.

However, Ms Alvino’s recollection of the conversation with Mr Major, if accurate - and there is no reason yet to doubt this - provides graphic evidence that the Government is simply unable follow, and enforce, the very laws it passes.

The Planning and Subdivisions Act is a vital tool in the regulation, and enforcement, of all development throughout the Bahamas, and any inability to ensure its application will again raise fears about widespread unregulated construction in this nation.

A June 10, 2013, letter from Mr to Ms Alvino confirmed the two spoke four days earlier, although it does not discuss the details of their conversation.

However, the same letter and other court-filed documents provide further evidence that the Government has yet to even implement the infrastructure and bodies necessary to comply with/enforce the Planning and Subdivisions Act.

Mr Major’s letter to Ms Alvino confirmed that Blue Illusions Ltd, the Blackbeard’s Cay developer, had received conditional approval for its project from the then-Ingraham administration’s National Economic Council (NEC) on November 22, 2011.

The approval was for a ‘Dolphin and Water Park Resort’ project, and Mr Major said the Town Planning Committee granted its ‘Support of Application’ approval for a period of two years on November 22, 2012.

Mr Major said ReEarth’s only option was to mount an appeal under Section 65 (1) (f) of the Planning and Subdivisions act, but subsequent evidence suggests this is currently impossible - because the Government has yet to establish the Appeals Board that will hear it.

Martin Lundy, a Callender’s & Co attorney, alleged in a December 9, 2013, affidavit that he had called the Department of Physical Planning three days earlier to discover the process for lodging such an appeal with the Subdivision and Development Appeals Board.

After informing the Department of his intentions, Mr Lundy said he was later called by a clerk to Mr Major, who “advised that the Board did not exist as yet”. Following further checks, he found that names of Appeal Board members had not even been Gazzetted.

The Callenders & Co attorney said he eventually spoke to Mr Major, who said the Department had been passing any appeals received to the Town Planning Committee - the very body that made the decision being challenged.

Mr Major allegedly told Mr Lundy that ‘from a legal perspective, I would advise following the old Town Planning Act 1964’. This, the latter alleged, would require mounting an appeal before the Supreme Court.

However, in the Judicial review court filings on ReEarth’s behalf, Callenders & Co argued that mounting an appeal under the old Town Planning Act was legally impossible because it had been repealed, and replaced, by the Planning and Subdivisions Act.

“In the absence of the apparatus required (and provided for) under the Planning and Subdivisions Act for appealing decisions on the Town Planning Committee, the only remedy the applicant has is to Judicially Review the decision,” Callenders argued.

ReEarth, meanwhile, also alleged that Aranha Pyfrom, of the Bahamas Environment, Science and Technology (BEST) Commission, had informed it in April 2013 that it “had no knowledge of the proposed facility, and there is nothing to suggest it was ever involved in advising on the plans”.

This, the environmental group claimed, again breached the Planning and Subdivision Act’s requirements that the developers submit an Environmental Impact Assessment (EIA).

The Judicial Review action names as defendants Prime Minister Perry Christie; V Alfred Gray, minister of agriculture and fisheries; Michael Braynen, director of fisheries and marine resources; and the Town Planning Committee.

It is challenging, and seeking to overturn, the decisions by the Government to grant Blackbeard’s Cay its various permits and approvals, particularly its dolphin import and planning/construction permits.