The Tribune

WHILE the question of who has the right to access Cabbage Beach made headlines last week this wasn’t the first time this complex issue has reared its head.

Last week vendors became irate when they showed up on site in preparation for their return to work next month, only to discover the Paradise Island beach entrance had been locked, while their items had been relocated across the street.

Needless to say, this action sparked immediate upset and eventually some vendors forced open the locked gates and began placing their possessions back onto the beach.

Access Industries, the owner of the land over which access to the beach runs, released a statement explaining its actions. According to the company, the fence was erected due to an upcoming $250m development project. They said the access point to the beach will be closed due to “safety” concerns during construction.

This explanation failed to appease Cabbage Beach vendors and many said they are determined to fight for their livelihood and called for Prime Minister Dr Hubert Minnis to intervene, noting he protested against a similar situation while in opposition in 2016.

Where the matter will end up this time is still unclear but just two years ago an almost identical situation ended up with a Supreme Court ruling in favour of Access Industries.

In this case, the access point involved was at the eastern end of Cabbage Beach adjacent to the Paradise Island Beach Club.

Ownership of Cabbage Beach was transferred from Atlantis (Brookfield) to a subsidiary of Access Industries in 2014. And In 2019, Supreme Court Justice Gregory Hilton adjudicated in a matter involving Atlantis Holdings Ltd and a Cabbage Beach vendor. At the time, he ruled that a public access point in question to the beach was a “private access way”, which meant the vendor was trespassing on the property.

The judgement noted the company, which was the plaintiff in the court action, was the owner of a hotel resort property, inclusive of the Paradise Island Beach Club and the Ocean Club Estates Beach Club situated on Paradise Island. Court documents also note the resort’s property encompasses land on Cabbage Beach extending to the high-water mark.

According to the ruling, since the company’s purchase of the property, it has allowed access to Cabbage Beach over its land by the public — “restricted to leisure and recreational purposes” —at certain designated access pathways.

Monique Taylor, the vendor involved in the case, had a government-issued business licence which allowed her to rent chairs and umbrellas and sell souvenirs and snacks on Cabbage Beach.

“The defendant has from 2012 utilised various ‘access pathways’ over the plaintiff’s land to access Cabbage Beach to conduct her vending business, which the plaintiff has objected to, and the plaintiff has on several occasions had the police remove the defendant and her goods/wares from the property and the beach,” the court documents read.

“The plaintiff has contended that the defendant has set up her vending business on the plaintiff’s property on Cabbage Beach above the high-water Mark; while the defendant has contended that her vending business on Cabbage Beach is set up and conducted below the high-water Mark on the beach.”

The company further argued Ms Taylor did not have the right to use the access pathway to set up or conduct her vending business on the beach. The defendant, on the other hand, asserted the access pathway was public, which meant she had a right to use it to gain access to the beach.

In their court action, Atlantis Holdings Ltd filed for loss and damage on the grounds the defendant’s “acts of trespass diminished” the value of their property. They also requested an injunction barring the vendor, or anyone associated with her, from “entering, using or traversing across the premises”, along with a declaration stating the defendant was not entitled to do the same.

They furthered that they were owed exemplary damages on the basis the vendor’s actions were done with a “view to make a profit”

“The defendant threatens and intends, unless restrained by the Honourable Court, to continue and repeat the wrongful acts above complained of,” they argued. “The plaintiff is entitled to interest at such rate and for such (a) period as the court may seem just pursuant to the Civil Award of Interest Act”.

In December 2017, Atlantis Holdings Ltd were granted an interlocutory injunction, which Ms Taylor sought to get set aside. Nevertheless, her appeal was refused.

In a counterclaim filed in April 2018, she maintained that Cabbage Beach was public, which meant she “had a right to use the right of ways” which provided access to the beach. She also cited loss of income and damage to rental articles.

In his judgement, Justice Hilton said the two “real issues” which had to be determined were whether the access way from the road to Cabbage Beach was public or private and whether or not the foot of the access way on the beach was above or below the high-water mark.

He noted that following his 2018 interlocutory ruling, Atlantis Holdings Ltd provided an “expert survey plan” which plotted the mean high-water mark on the part of Cabbage Beach which abutted their property. He said after reviewing the plan, it was clear the foot of the access way steps, where the vendor had set up her business, was “well above the mean high-water mark” and according to the survey, “clearly within the plaintiff’s property”.

“While the court accepts that the defendant had a valid licence from the government to conduct her business on Cabbage Beach, this could only be done on those parts of Cabbage Beach above the high water mark abutting property owned by the government (which would be a public beach); and not above the high water mark on property owned by the plaintiff or other private owners (which would be a private beach) except with their consent or by their permission,” he stated.

Justice Hilton also said the court found the access pathway, which was created in 2015, could not be considered a public highway since there had not been “long customary use” of it. In addition, he noted Atlantis Holdings Ltd had, since its inception, “continually exercised control of it by having it closed off by a gate at sporadic times and erecting signage circumscribing the conditions of its use”.

“As a result of my findings I make the following orders,” he stated. “Summary judgement is awarded to the plaintiff pursuant to Order 14 Rule 1 of the Rules of the Supreme Court (RSC) and specifically: A declaration that the defendant is not entitled to enter, use or traverse upon the plaintiff’s premises; A perpetual injunction restraining the defendant whether by herself or her servants or agents from entering using or traversing across the premises of the plaintiff; Damages against the defendant for trespass to be assessed by the Registrar.

“The court also orders that the defendant’s Defence and Counter claim be struck out… and also awards costs of the action to be paid by the defendant to the plaintiff to be taxed if not agreed. Dated this 30th day of April A.D. 2019”.