The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

A Supreme Court judge yesterday refused to extend an injunction that prevented the Atlantis resort from blocking a ‘right of way’ access to Cabbage Beach.

The beach’s vendors, though, still have just over 50 days to access the beach via that easement based on an agreement with the property’s new owner, Access Industries, the One & Only Ocean Club’s proprietor. This was indicated in a letter from Obie Wilchcombe, minister of tourism, which was sent over the Christmas holidays.

But the interim injunction, which had been granted on December 30, expired at 2.30 pm yesterday and was not extended by Supreme Court Justice, Bernard Turner, following a three-hour hearing.

Attorney Obie Ferguson argued for the extension on behalf of members of the Cabbage Beach Business Owners Association, alleging that there had been no formal notice given to the Association regarding the restriction of beach access.

He said that an October 8 letter, stating that beach access would only be extended until December 31, 2015, was given to another association that he claimed did not exist.

Mr Ferguson said his clients had only this week become aware of a letter dated December 29, 2015, from Mr Wilchcombe, which confirmed that access to the beach would be continued for 60 days from the date of the letter.

Ferron Bethell, the Harry B Sands & Lobosky partner, argued yesterday on Atlantis’s behalf that the Cabbage Beach Business Owners Association had no standing to bring the action, which he branded as “totally misconceived”.

Mr Bethell argued that the plaintiffs had not named the correct defendant for their action, adding that Atlantis’s owner, Brookfield Asset Management, had sold the disputed easement to Access Industries in June 2014.

Mr Bethell said Atlantis/Brookfield had permitted the vendors to operate on Cabbage Beach and, based on that agreement, it was they who ultimately had to call on the vendors to vacate the property and give them 31 days notice.

He added that the interim injunction had been improperly granted and should not be continued.

The parcel of land providing access to the beach is adjacent to the eastern boundary of the RIU Paradise Island Resort.The easement, which has been used for many years, is one of two remaining public access points to Cabbage Beach.

The other is further east, by the Paradise Island Beach Club at the end of Garden Drive. Vendors claim that the eastern easement does not provide good enough access for them to transport products and other materials on to the beach.

Mr Ferguson told the court that his clients had not been made aware of any ownership transfer of the property, and that Atlantis had always represented themselves as the owner and had continued to do so.

He argued that if the resort was now suggesting they were not the right party, then everything they did following the property’s sale was of no effect. Mr Ferguson subsequently asked the court’s permission to amend his application to reflect Access Industries as the new owners of the property, and that the injunction also be extended for 60 days.

Justice Turner refused to extend the injunction, but allowed the Cabbage Beach vendors to join Access Industries to their action.

The judge also declined to grant an ex parte injunction against Access Industries, the intended second defendant. Justice Turner is expected to address other issues raised at the hearing when the matter is back before the courts on January 19.

Access Industries in a brief statement said: "“As required by its sale agreement to Access Industries in 2014, Brookfield is obligated to relocate the current public beach access point to another location. Access Industries has granted a 60-day period for the Bahamas Government to find an alternative location for the vendors currently based there. Access Industries has been working with the Bahamas Government on development plans for the vacant parcel of land.”