The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The government and developers can no longer ignore The Bahamas’ key planning law as “an inconvenient truth” after the Supreme Court ordered a key element be enacted by July 1, 2019.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business that one of the multiple rulings involving Nygard Cay would impose “the rule of law, and regulate development in The Bahamas in a real way”, by forcing the Government to implement laws passed by Parliament.

He spoke out after Justice Rhonda Bain ordered the Government to comply with the Planning and Subdivisions Act by preparing a “Land Use Plan” for New Providence, setting a deadline of July 1 next year for this to be approved.

“The court is mindful that the preparation of a Land Use Plan would require time, consultation and public meetings,” Justice Bain ruled. “The court therefore orders that the Land Use Plan should be approved before July 1, 2019.”

Mr Smith hailed Justice Bain’s August 3 verdict, and its implications, for bringing “transparency and due process” to The Bahamas’ physical planning processes. He argued that it will put the Government, developers and associated professions - especially attorneys, realtors and financiers - on notice to abide by a law that has not been properly enforced.

“The Planning and Subdivisions Act is an inconvenient truth that has now been judicially pronounced upon,” he told Tribune Business. “Parliament has long passed the Act, and the branch of government which is supposed to put it into effect - the executive has simply failed to abide by its provisions since 2012.

“The PLP pretended as if it did not exist, but we relied upon it in litigation and were successful. Until it’s put into effect, and the Government populates the Department of Physical Planning with physical and human resources, and skilled land planners and inspectors, no development in The Bahamas can lawfully occur without the required Land Use Plans mandated by Parliament.”

Justice Bain’s verdict stemmed from a Judicial Review challenge to the then-Christie administration’s decision to launch a new round of public consultations over Peter Nygard’s applications for building permit, seabed leases and future buildings at his Nygard Cay property.

Besides breaching an existing injunction on granting the Canadian fashion tycoon any such permits, Mr Smith and the Coalition to Protect Clifton Bay argued that the new consultation was “illegal and/or irrational and/or ultra vires” because the Government had failed to follow the Planning and Subdivisions Act - especially the requirement to develop a Land Use Plan for New Providence.

Justice Bain noted that the Act requires a Land Use Plan to be developed for every Bahamian island, not just New Providence, which was described as an approved policy document “showing existing and future planned land users land to be protected from development”.

Land Use Plans are supposed to designate areas identified for residential, commercial, industrial and other purposes, while also segregating areas that should not be developed. The Act also mandates significant public consultation before any Plan is approved.

Finding that these obligations are “mandatory”, and that Land Use Plans are essential “as a guide to development” in The Bahamas, Justice Bain said the Government gave no explanation for why it had failed to develop such a plan for New Providence.

The Supreme Court’s upholding of the Planning and Subdivisions Act and its provisions, and Order for the Government to enact it, will likely shock many developers - especially those who have been calling for major changes to it.

Sir Franklyn Wilson, Arawak Homes’ chairman, in a 2014 interview with Tribune Business urged the Government to fix the Act “sooner rather than later” otherwise all development projects would become bogged down in “never ending Judicial Review” actions.

He argued that the Government “absolutely cannot” enforce and implement the statutory processes in the Planning and Subdivisions Act 2010 due to a lack of expertise, resources and manpower.

Effectively implying that it will cost the Government money it does not have to uphold its own laws, Mr Wilson backed Michael Major, the then-director of physical planning, as “dead right” for his alleged assertion that properly applying the Planning and Subdivision Act would send the administration ‘bankrupt’.

Mr Major, according to documents filed with the Supreme Court as part of the Judicial Review action challenging the permits/approvals granted to the Blackbeard’s Cay project, allegedly told activists from the ReEarth environmental group that it was “too costly to hold public meetings on every development” and “if we were to do that we would be bankrupt”.

However, Mr Smith lauded Justice Bain’s ruling, and said properly implementing the Act will prevent the Prime Minister’s Office and other government agencies from “blindly approving projects and transactions” without reference to laws passed by Parliament. He added that it would also give investors/developers certainty over the rules surrounding their investments.

“This refusal by the executive to abide by the rule of law is at the root of a lot of the challenges The Bahamas faces in achieving prosperity,” he told Tribune Business. “There are a lot of developments that have occurred unlawfully, and some of the financing arrangements will be in jeopardy because proper permits may not have been obtained as required under the Planning and Subdivisions Act.”

Mr Smith called on conveyancing and transactional attorneys to be especially mindful, given that agencies such as the Bahamas Investment Authority (BIA) and Bahamas Environment, Science and Technology (BEST) Commission do not exist in law.

As for the implications of Justice Bain’s ruling, and enforcement of the Act, the outspoken QC said: “It would bring transparency. It would bring due process. It would bring protection to environmental issues. It would ensure proper consultation with third parties, and be part of a Land Use Plan governing everybody’s prospective development and investment.

“It brings the rule of law and regulated development in a real way to The Bahamas. It’s a very good piece of legislation; one which developers and the executive don’t like because it shackles them to process, thereby depriving both sides of secrecy.

“If the Planning and Subdivisions Act was properly applied, the director of physical planning becomes one of the most important persons that every domestic and foreign developer must turn to. It’s a very powerful position that all the non-statutory executive agencies will have to turn to.”