The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A HARBOUR Island development company yesterday said a judge's order for it to stay construction until it gets the requisite approvals from the relevant authority was just an issue of "red tape."

4M Harbour Island Limited, in a statement, said in seeking to get approvals for the project, it always "followed the advice" given by the government on how to proceed. And while 4M lamented the "confusion" and bureaucracy over the approvals for its marina project, it "welcomes the opportunity to ensure the correct documentation is in place."

The company said it looks forward to the day "when the red tape is untangled" and it can "deliver to the public what we have promised".

4M also said it plans to take legal action against a hotelier on that island, Benjamin Simmons, for allegedly breaching a gag order by making a number of "false" claims about the controversial marina project.

4M claims Mr Simmons accused it of, amongst other things "performing construction without a building permit" as well as without an approved environmental impact assessment (EIA).

4M asserts that the gag order, which it did not make a request for, "limited" its ability to effectively respond to some of Mr Simmons' allegations, including on social media.

4M's assertions came after Justice Diane Stewart delivered a ruling that effectively confirmed Mr Simmons' and Briland Island Responsible Development (BIRD) successful bid at an order quashing the Town Planning Committee's (TPC) decision to approve 4M's construction of a new 55-slip marina at Harbour Island.

The project would form part of a new development called the Briland Residences and Marina.

Justice Stewart, in an October 17 written ruling, said 4M must make an application to the "appropriate authority" - the Harbour Island District Council - and receive the requisite approvals "in compliance with the law" if work is to ever resume on the project.

Until that time, Justice Stewart ordered any construction on the marina development be "stayed".

Justice Stewart simultaneously quashed the project's site plan approval by the TPC and "any decision which flowed directly therefrom," as it was "unlawful and without jurisdiction".

4M, in its statement, said it welcomes the ruling, which it said "provides clarity about the future path the project needs to take to secure approval."

"This is essentially a matter of red tape," the statement said. "4M is seeking to bring a boutique resort experience to Harbour Island, complete with over 100 jobs for the local community. We expect the Briland Club Residences and Marina development to be a boost to both the Harbour Island community and economy.

"At every step of the process, we have followed the advice given to us by the government on how to proceed. We followed the application process that was recommended, held a public meeting on Harbour Island on November 16, 2017, with more than 100 people in attendance, and worked closely with government agencies to secure a heads of agreement and proceed with the project as planned.

"While we were disappointed that this confusion arose over which agency was required to give the site plan approval, we welcome the opportunity to ensure the correct documentation is in place. The plan for our Briland Club Residences and Marina development is a long-term one, and so we want to start it on the right foot, not just for ourselves but for the community we wish to be part of."

The whole issue arose when Mr Simmons filed an application for judicial review against 4M and the TPC in a bid to have the court set aside the site plan approval. He and BIRD did so on the primary allegation that there was no compliance with Section 37 of the Planning and Subdivision Act (PSA), particularly in failing to hold a public meeting to hear and decide the application.

Alternatively, Mr Simmons and BIRD contended that if the PSA did not apply, the TPC had no jurisdiction to make the decision it did. When the matter came on for hearing, all of the parties agreed that the site plan approval was invalid and worthy of being set aside. However, they disagreed over why the approval was invalid.

The TPC maintained that the approval was unlawful because it was made by the wrong body. The TPC submitted that because the PSA was not extended to Harbour Island, it had no authority to approve the development.

The TPC contended that the Local Government Act (LGA) provided that the district council can exercise the powers of the TPC under the TPA. However, since that act has been repealed, the PSA must be substituted in its stead. Any decisions the TPC is empowered to make under the PSA must thus be made by the district council.

Meanwhile, 4M maintained that the PSA was not extended to Harbour Island by the Planning Subdivision (Extension to Family Islands) Order 2012 and that Parliament did not intend for the PSA to extend to Harbour Island. Rather, the provisions of the TPA were to continue to govern developments in Harbour Island.

Justice Stewart ultimately ruled that under the TPA, Harbour Island's District Council is "empowered to make decisions, including granting approvals for town planning matters for Harbour island utilising the powers, rights and obligations under that statute."

But as no decision was made by the district council--something that was accepted by both the TPC and 4M, the site plan approval to develop the marina as granted by the TPC to 4M was "unlawful and without jurisdiction."

Attorney Robert Adams, who represented 4M, said: "It may sound confusing with all the different acts - but essentially once it was agreed by all parties that the wrong authority had granted approvals, then it was an obvious step that we would need to receive those approvals from the correct authority instead.

"We are confident those will be secured and look forward to working with the Harbour Island District Council to secure those and proceed with the development."

A spokesperson for 4M added: "We look now to the future. We look to securing site approval under the (TPA) in Harbour Island, and we look forward to resuming the project once those are secured.

"Briland Club Residences and Marina Development is a game-changer for the local economy. It will bring jobs, more visitors and a real boost to the community. We know there is overwhelming public support - and we will be delighted when the red tape is untangled and we can deliver to the public what we have promised."