The Tribune

THE granting of a permit to dredge the sea bed near Nygard Cay in contravention of numerous court orders reveals the extent of the incestuous relationship between controversial developer Peter Nygard and the Progressive Liberal Party government, the Supreme Court was told yesterday.

Fred Smith, QC, attorney for environmental advocacy group Save The Bays (STB), noted that the permit in question, granted in October, 2014, violated one injunction preventing dredging in the area and two others barring such a permit from even being considered.

Nevertheless, he noted, Director of Physical Planning (DPP) Michael Major acquiesced to a request for a permit to dredge, breaching these court orders and contravening the Conservation and Protection of the Physical Landscape of The Bahamas Act (CPPLBA) by doing so without notifying and consulting with STB.

“The DPP effectively broke the law” and revealed the “unseemly and incestuous relationship between the government and Mr Nygard in acquiescing to the request to grant the permit,” Mr Smith said.

He said the authorities went even further to accommodate Nygard’s wishes, agreeing to allow him to wave the conditions of the illegal permit and place the sand excavated by dredging on his own property instead of on the nearby public beach as originally required.

The government also failed to take action when Nygard violated the revised permit, by using the dredged material to engage in unauthorised landfill and reclamation activities, instead of stockpiling the sand as he had been ordered to, the STB attorney said.

“Mr Nygard has since 1984 carried out extensive land reclamation works at the northern ocean shoreline and at the eastern and southern Clifton Bay shoreline of his property at Simms Point (aka Nygard Cay). These works have involved constructing groynes, breakwaters and other structures on the seabed, dredging the seabed and pumping the sand to create and maintain an artificial beach adjacent to Nygard Cay.

“The result is that Mr Nygard’s property has nearly doubled in size from 3.25 acres in 1984 to 6.1 acres today,” Mr Smith said. “The new land reclaimed from the seabed belongs to the Crown.”

He told the court that the first of four Judicial Review cases launched by STB against the construction at Nygard Cay (JR1) contends that this reclamation has taken place without the requisite permits, coastal protection approval or proper consent of the Prime Minister as minister for Crown Land.

“Further, structures have been built on the illegally reclaimed land also without site plan approval, building permits or landowner consent,” he said.

“Against this backdrop, in February, 2014, Mr Nygard renewed his failed application for a Crown lease of the reclaimed land. In June, 2014, the respondents in JR2 (which includes the DPP) embarked on a flawed and expedited consultation process with a view to considering whether to grant the Building Permit, the crown lease and other anticipated future applications,” Mr Smith said.

He noted that the government was duty-bound to obey the injunctions preventing a permit from being granted or even considered, yet failed to do so because of the “incestuous relationship with Mr Nygard”.

Mr Smith said: “Any decision-maker acting rationally would have rejected the application for a Dredging Permit given the existence of the JR1 Injunction expressly prohibiting Mr Nygard directly or by his employees or agents, doing just that.

“In deciding to vary the Dredging Permit to allow dredged material to be deposited on the property at Simms Point, the Respondent was acting irrationally in failing to have any or any adequate regard to the fact that JR1 was concerned with the expansion of the beach at Simms Point/Nygard Cay by Mr Nygard’s unauthorised reclamation of land from the Crown seabed.”

STB is seeking to have the court quash the decisions granting the permit and variance; require the DPP to require Nygard to remove the sand deposited on the beach at Simms Point as a result of his dredging; and prohibit the granting of any further dredging or landfill permits to Nygard and or his agents in respect of the seabed surrounding Nygard until the resolution of the four relevant Judicial Reviews.

In response, attorney for the government, Wayne Munroe, QC, argued that the evidence contained in two affidavits relied on by STB to make their case was inadmissible because it was based on hearsay. This includes an extensive environmental report into the accretion of land at Nygard Cay over a number of years and the related environmental consequences.

Mr Munroe further argued that the remedies being sought should not be granted because both the DPP and Nygard have already been found to be in contempt of court in relation to matters in question in this case, and there is no greater remedy available for the court to grant.

He also pointed out that there would be no point in the court ordering the DPP to require Nygard to remove the sand deposited on his beach, as he has already been ordered to as part of the court’s contempt ruling.

There is no power under the CPPLBA to force the DPP to take the actions requested by Save The Bays, he added.