The Tribune

• Wynn’s Goodman’s Bay penthouse ‘varied’ in verdict

• Site plan approval ‘preliminary’; must seek final nod

• But neighbour’s challenge rejected by Appeal Board

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

PLANNING authorities yesterday modified the approvals granted to Wynn Development’s 14-storey Goodman’s Bay penthouse while ruling that “public protest” is not sufficient to overturn prior decisions.

The Subdivision and Development Appeal Board, in its ruling on the challenge to the Town Planning Committee’s initial approval by the project’s neighbour, Edward Hoffer, moved to clean up the process that Wynn must follow through “a slight variation” addressing stages that may have been missed out or leapfrogged.

The Board, in its six-page decision, said it was “troubling” that an application for “preliminary support for site plan approval”, which had previously been sent back to the Town Planning Committee after both sides agreed the proper process may not have been followed, was now back before it for a second time as an appeal against “final site plan approval”.

Suggesting that incorrect language may have been employed, the Appeal Board said the leap to “final” approval was “inconsistent with the basis upon which” Wynn’s first permission was overturned and went back before the Town Planning Committee.

To clean this up, it ruled that Wynn is granted “preliminary support for site plan approval” while also adjusting the conditions previously imposed by Town Planning. The developer must now first satisfy the Department of Environmental Planning and Protection (DEPP), obtaining its certificate of environmental clearance (CEC) and any other permits, before satisfying the Ministry of Works’ civil design unit.

Town Planning’s original decision had suggested that Wynn address the two agencies’ concerns the other way around, placing civil design before the DEPP and environmental approvals. However the Appeals Board is understood to have thought this made no sense, given that construction cannot begin until all environmental issues are satisfied and all necessary approvals obtained.

Once these concerns are addressed, Wynn must then seek “final site plan approval”. The Appeals Board verdict possibly adds another planning approval step to the developer’s journey, resulting in extra time and potential delay, but Mr Hoffer’s bid to halt the development - which has evolved into a campaign featuring a website urging Bahamians to oppose it - was rejected.

Recalling the appeal hearing, the Board in a verdict signed by its chairman, Dawson Malone, said: “There were, despite many arguments, two grounds of appeal. Firstly, the Town Planning Committee did not have regard to public protest and, secondly, the Town Planning Committee did not have regard to environmental concerns.

“The Record of Appeal contains the various protest letters as well as report of the public hearing. In fact, concerns expressed regarding the development near the beach, parking spaces, generator and garbage issues were all put to the second respondent (Wynn) for further submission post the October 18, 2023, hearing, and further submissions were made to the Town Planning Committee on November 1, 2023.

“There were also non-objection letters produced. Considered in the round and, upon review of applicable legislation inclusive of the Planning and Subdivision (Town Planning Committee) Rules, confronted with mere objection is not a sufficient basis to interfere with the decision under appeal.”

The Appeals Board added that the issues raised fell within the purview of the Ministry of Works’ civil design section, which was one of the conditions set by Town Planning for its original approval. And it said Town Planning was clearly “alive” to the environmental concerns given that the penthouse project’s progress to construction was conditioned on it obtaining the necessary environmental approvals.

While “much was made about” the lack of an Environmental Impact Assessment (EIA), the Appeals Board said the need for such an analysis - previously contained in the Planning and Subdivision Act - was switched to the Environmental Planning and Protection Act.

This, and its accompanying regulations, stipulate the need for EIAs and that such approvals are needed before construction starts.

Having disposed of Mr Hoffer’s appeal, the Appeals Board nevertheless said it was “troubling” that what it had sent back to Town Planning on September 8, 2022, as an application for “preliminary support for site plan approval” had now come back following October 2023’s hearing as “grant of site plan approval”.

It added that the latter was “inconsistent” with both “the basis upon which the previous decision was overturned” and Town Planning’s imposition of conditions on what it had described as a final site approval. If that had actually been granted, no conditions should have been imposed.

“In the circumstances, the Board is unable to reconcile the approval indicating that it was one granting site plan approval without regard to the requirements of section 42 (5) of the Town Planning Act,” the verdict said. As a result, it clarified that Wynn has “preliminary support for site plan approval” - meaning it has passed the “first stage” in the approvals process.

It also changed the order of conditions that Wynn must satisfy, placing the DEPP and environment ahead of the Ministry of Works’ civil design unit. “As the approval now stands as a ‘preliminary support for site plan approval’, the second respondent [Wynn] is obliged to seek final site plan approval upon satisfaction of the conditions,” the Appeals Board concluded.