The Tribune

By YOURI KEMP

Tribune Business Reporter

ykemp@tribunemedia.net

A senior government official yesterday disputed assertions by the Ocean Club’s owner that it did not require permits to begin clearing the property at the heart of last week’s Cabbage Beach dispute.

Rochelle Newbold, director of the Department of Environmental Planning and Protection (DEPP), told Tribune Business she believed Access Industries needed to first obtain a Certificate of Environmental Clearance (CEC) before it could begin work on clearing property earmarked for a $250m condo-hotel project.

Confirming that no application has been made to, or approval granted by, the DEPP for clearing a site that includes an easement long used by Cabbage Beach vendors and others to access the beach, Mrs Newbold said: “We have no active application for any project on Cabbage Beach, or any condominiums of any value of that nature. So they haven’t gone through the environmental review.

“They could have approval at the Heads of Agreement level, but they have not gone through the environmental process. At this time, the department is not aware of any submission for Certificate of Environmental Clearance (CEC) for any construction activities related to Cabbage Beach.”

The DEPP Act’s clause 13 states that no person shall begin work on any project unless that they have been issued a CEC in accordance with the prescribed regulations. However, an Access Industries spokesperson said the developer was unaware it needed approval from the DEPP to clear their own private property.

They added they have “reached out to DEPP for clarity on this issue, as the company believes that preliminary clearance work on its private property is allowed”.

Yet Mrs Newbold replied: “What lawyer told them that they could clear land and erect fences as they see fit? I can’t go by what Access Industries says, but I want to know what lawyer told him that clearing land without approval was okay?

“Clearing land would also have incidences where they would have the removal of whatever trees and vegetation that’s on the land. If they are clearing land in preparation for the construction of their condominium, they need a CEC for what the intended outcome is.

“They just can’t come and build a house and say they will clear down the land. If they did that we would have another situation with what we had with Ginn, where we had cleared down land and nothing happened. Anything with regard to the environment requires an approval.”

Questions were raised last week as to whether the Ocean Club owner had all the necessary permits and approvals to begin it development. There were strong indications that it did not, especially since no public consultations appear to have been held either by the Town Planning Committee or the Department of Environmental Planning and Protection (DEPP).

Adrian White, the Town Planning Committee’s chairman, who is also the FNM’s St Ann’s candidate in the upcoming general election, referred Tribune Business to Mandie Maynard, the committee’s secretary and a Department of Physical Planning employee, when asked whether Access Industries had applied for the necessary permits and if a public consultation had been held or scheduled.

Access Industries, in a statement at that time, said it had merely been doing site clearing so it could better assess the property’s development possibilities. “The owner of the private land is doing comprehensive and permissible site work, including the clearing, so it can assess the property for the development of the hotel, condominium and retail project,” it added.

“Because of the use of heavy machinery, the site was closed because of safety concerns, and signs were posted to this effect, as well as to direct traffic to other access points to the beach.”

However, numerous Supreme Court rulings have confirmed that the route/easement to Cabbage Beach that was blocked off lies on land owned by Access Industries. Justice Gregory Hilton, in an April 30, 2019, ruling found it was “a private access way” over which the owner can set the terms and conditions of its use.

This effectively means the Ocean Club owner can act as it sees fit. Ownership of the Cabbage Beach property was transferred from Atlantis – owned by Brookfield Asset Management – to a subsidiary of Access Industries in 2014 as part of the Ocean Club’s sale to the latter.

Prior to the sale, Atlantis had allowed access to the beach via the easement through the private property. However, the company had petitioned the government on several occasions to address the vendor operation at the beach, due to concerns that standards were not consistent with the high-end tourism product the mega resort was offering.

In December 2015, the Cabbage Beach Vendors Association filed an injunction in the Supreme Court to prevent Access Industries from restricting access by way of the path. A 30-day injunction was put in place, but further applications to have that extended were denied.

The vendors, from that point, still had just over 50 days to access the beach via that easement, based on an agreement between the then-Christie administration and Access Industries that was not made public. These events allowed Access Industries the leeway to erect a fence to restrict access to the beach, leading to the 2016 dispute and protest that eventually resulted in it being taken down.

Despite what happened five years, the Ocean Club owner appears to have given no advance warning or notice of the new fence that was erected on Wednesday, even though the 2016 protest should have alerted it to just how sensitive and emotive an issue Bahamian access to land - and especially beaches - is.

Its initial release, saying Bahamians “still can readily access the beach at Beach Club Drive, off Paradise Island Drive, or consider Junkanoo Beach or Montagu Beach in Nassau”, is also unlikely to have gone down well with many.