The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge has slammed the Government’s “reprehensible” failure that drove a Bahamian woman to “almost financial ruin” after it failed to compensate her over acquiring land for a road yet to be built.

Justice Denise Lewis-Johnson, in a September 27, 2023, verdict blasted that it was “nothing short of disgraceful and unacceptable” that Leclevia Danica Colebrooke has for more than 17 years both been denied use of - and not received a penny for - a property she acquired as both her primary residence and an income earner.

She found that the Government’s failure to pay compensation not only breached Ms Colebrooke’s rights under the Bahamian constitution’s article 27, which protects citizens from being deprived of their rightful property, and ruled that she is also “entitled” to damages for “loss of revenue and cost of alternative housing” that must be determined by the Supreme Court.

Detailing the background to the dispute, Justice Lewis-Johnson wrote that Ms Colebrooke agreed to purchase her 5,199 square foot property in Nairn Close, located south of Cowpen Road, from Sandra Nairn Johnson and Cleotha Nairn Myers in October 2005. The acquisition price was settled at $36,000, and the transaction closed in January 2006.

The land was zoned as multi-family residential, and Ms Colebrooke submitted her building permit application to the Ministry of Works on August 21, 2007. The plans, though, were not approved and she made “countless inquiries... without success” as to why there was no progress.

Eventually, some ten months later on June 5, 2008, she received a letter from Craig Delancy at Building Control informing Ms Colebrooke that her newly-acquired property had been earmarked for inclusion in a proposed roadway that would extend Milo Butler Highway and connect both Carmichael Road and Cowpen Road.

The Government then gave formal notice on January 21, 2009, as required by the Acquisition of Land Act, that it intended to compulsorily acquire certain land for the public interest to construct roads. Khader Alikhan, of the Ministry of Works, subsequently contacted Ms Colebrooke’s then-attorney more than two years later, on May 24, 2011, to confirm that her land was included in the acquisition.

“The plaintiff has not been compensated pursuant to the Acquisition of Land Act or at all,” Justice Lewis-Johnson wrote. “To-date, the roadworks contemplated by the Government have not materialised. The acquired property remains in its original state as purchased by the plaintiff.” There has, though, been talk about reviving the Milo Butler Highway extension under the Davis administration.

Ms Colebrooke alleged that she had planned to build a two-bed multi-family property on the land. One of the units was to be rented out to tenants for $750 per week, while she lived in the other as her main residence. Lynden Hepburn was contracted to produce the architecture and engineering plans.

After being notified of the Government’s compulsory acquisition of her property, she asked her then attorney “to arrive at a reasonable compensation figure” with the Prime Minister’s Office. A “possible land swap” and “payment of consequential loss” was mulled, but an alternative site at Marshall Road was rejected because the land was “not comparable”, while Ardastra Gardens was only zoned for single family - not multi-family - lots.

Ms Colebrooke switched attorneys in July 2020 to Cedric Parker & Company in a bid to obtain compensation and settle the matter, but no response has been received. In the meantime, she had settled the Scotiabank (Bahamas) mortgage that financed the property’s original purchase and been forced to pay $800 per month to rent somewhere else because she cannot use the land for her intended purpose.

Wellington Woods, an appraiser, in a report dated November 23, 2021, determined that the property’s market value then was $72,786, while in 2010 it would have been $67,587. He confirmed the multi-family zoning and that the area was an approved subdivision.

The Government, in its response, provided an appraisal from the late Peter Galanos, which described the areas as “undeveloped/rural farmland” and valued it at $42,000. However, Roshan Noronha, an accountant, calculated that the compensation due to Ms Colebrooke under the Acquisition of Land Act was $134,669 at February 2022.

Justice Lewis-Johnson, rejecting the appraisal by Mr Galanos, ruled: “The evidence reflects that the Ministry of Works refused to issue the building permit in 2007. This prolonged deprivation of right, title, interest and benefit is unacceptable.” She also questioned why Ms Colebrooke was denied approvals, and “forced to pay rent and satisfy a loan” on the property, when others had built homes and apartments in the same neighbourhood.

“The Government failed and/or refused to approve her plans thereby preventing her from constructing her planned duplex,” the judge added. “This is unacceptable and what is reprehensible is their failure to provide timely and adequate compensation....

“The prolonged failure to provide compensation has put the plaintiff at a significant disadvantage and this failure is nothing short of disgraceful and unacceptable. What is even more disconcerting is that the plaintiff obtained a mortgage to purchase this property which she repaid/satisfied and hoped to use the property as an investment. The Government prevented the plaintiff from obtaining a return on her investment.”

This, the judge found, caused “significant hardship and almost financial ruin” for Ms Colebrooke, resulting in the award for loss of revenue and cost of having to pay for alternative housing. The case again highlights just how long many Bahamians have to wait - sometime for decades - to receive their rightful compensation for land taken by the Government to facilitate public infrastructure development and other projects deemed to be in the public interest.