The Tribune

• Bid to overturn four-storey condo hotel approval

• Claim Town Planning breached Act, own Rules

• And homeowners ‘deprived of right to be heard’

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Balmoral residents have moved to overturn approvals granted for an earlier four-storey condo hotel proposal, which “threatens the integrity of the community”, due to non-compliance with legal processes.

The Sanford Drive community’s Owners Association, and Phase One Condominium Association, in their November 6, 2023, notice of appeal argued that the Town Planning Committee committed multiple breaches of the Planning and Subdivision Act 2010 and its own rules in giving the Balmoral Club the go-ahead for a condo hotel that was half the size of the eight-storey project recently rejected.

Tribune Business sources, speaking on condition of anonymity, yesterday confirmed the gated community’s homeowners were unaware of the February 22, 2022, approvals granted to the four-storey proposal until the Balmoral Club recently sought a “deviation” from those permissions to change the development’s location and double its height.

The latter 50-unit, eight-storey project was rejected by the Town Planning Committee late last month because it is “incompatible” with land use and development trends in the community. Following that decision, the homeowners associations are now bidding to kill the Balmoral Club’s condo hotel ambitions off entirely by overturning the original four-storey plan’s approvals.

“Town Planning never published the information that there was going to be a hearing on the four-storey,” one contact said. “People were shocked, and didn’t learn about it until the eight-storey application was made. They were like: ‘What do you mean, a four-storey hotel?’

The Associations’ notice of appeal, filed on their behalf with the Department of Physical Planning by Khalil Parker KC, the Bahamas Bar Association president, argued that the original February 2022 approvals for the four-storey project were “void” and flawed because they failed to follow the legal procedures and process set out in the Planning and Subdivisions Act.

It alleged that the decision violated several sections in the Act because the Town Planning Committee “failed to hold any public hearings” or notify affected persons of the application, thus depriving them of their right to be heard. And there was a lack of transparency because no formal notice was issued to alert Balmoral residents about the decision.

The appeal notice alleged that the decision also breached the Town Planning Committee Rules 2011, which require that “an applicant and all interested parties shall be given the right to be heard by the Committee and may be represented by counsel or an agent”.

“The Committee, having failed to conduct a public hearing or otherwise give notice of the subject application to the owners and residents at Balmoral, unreasonably and unlawfully deprived the appellants of their right to be heard,” the appeal notice argued.

“The decision is void having been taken in breach of the Town Planning Committee Rules and the Act, pursuant to and in accordance with Rule 9(8), which provides that: ‘Where the Committee has made a decision which contravenes these Rules, whether through inadvertence or by reason of an error in judgment made in good faith, that decision shall be deemed void and the application shall be reconsidered by the Committee as a new application.”

The appeal notice also cited concerns about the impact on Balmoral, which is located just to the west of the US ambassador’s residence and at the back entrance to the Prime Minister’s Office/Ministry of Finance, if the four-storey condo goes ahead.

“The decision is incompatible with surrounding land use, compromises the integrity of the community and undermines the interests of the owners and residents in Balmoral as follows,” it added. “Increased security risks for owners, residents and their visitors. Increased traffic and stress on infrastructure. Loss of residential character of Balmoral.”

Other concerns cited were a “negative impact on property values and quality of life in Balmoral”, and assertions that the project “undermines historical value, adversely impacts right to light and views, and conflicts with the character of Balmoral”.

Legal and regulatory impediments to constructing a hotel in Balmoral were also cited, and the appeal notice, reiterating the Town Planning Committee’s words over the rejected eight-storey variety, added: “The proposed development is an incompatible land use. The scale of the development is not in keeping with the prevailing trend of developments in Balmoral.”

It is presently unclear whether the Balmoral Club will move ahead with the four-storey proposal. Town Planning approvals only remain valid for a certain time, which sources suggested was two years, giving its present set of permissions until end-February 2024 before they expire and a fresh go-ahead has to be sought.

The earlier Town Planning Committee approval, revealing that the condo hotel application was first submitted more than two years ago on August 24, 2021, granted site plan approval subject to the project meeting several other conditions.

These included obtaining a Certificate of Environmental Clearance (CEC) from the Department of Environmental Planning and Protection (DEPP) prior to work beginning. “On-site drainage and internal roadways must meet the requirements of the civil design section of the Ministry of Works,” the earlier Town Planning Committee approval stipulated.

“Provisions for site infrastructure (electricity, water supply and treatment and waste management) must be reviewed and meet the requirements of the relevant utility corporations. Any excavation on the property must adhere to the provisions of the Conservation and Protection of the Physical Landscape of The Bahamas Act.”

Charles Diggiss, the condo hotel’s architect and project manager, in a May 30, 2023, letter said a “deviation” from the original 2022 approval was then sought because of a change in the condo hotel’s location to the north-east portion of the existing Balmoral clubhouse. No mention was made of the doubling in storeys from four to eight.

Even if the homeowners’ associations succeed in overturning the four-storey application that may not be the end of Balmoral Club’s condo hotel ambitions, and a lengthy planning battle could move through the court system. 

The Club, which is a separate entity from the homeowners associations, could appeal any decision by the Planning and Subdivisions Appeal Board. And Dwayne Mortimer, its president, told this newspaper earlier this week that he separately plans to appeal the “baffling” rejection of the $25m, eight-storey proposal.

“This is baffling because the Town Planning Committee had already approved the initial hotel and we only applied for deviation,” he argued. “The other question that they raised was the scaling, and we can address that.

“But the building will be no taller than many other buildings that exist around them. One thousand feet to the west, next to the American Embassy, there is a building much taller than that. So I do believe based on the facts that were discussed at the meeting we will address these issues properly.”