The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An Eleuthera resort developer’s bid to launch Judicial Review proceedings after it clashed with a rival Briland resort over beach usage has been rejected by the Supreme Court.

Justice Carla Card-Stubbs, in a January 29,2025, verdict also dismissed the Potlatch Group’s efforts to obtain an injunction against the Rock House Hotel after finding that the decision it is complaining about “was never given” in the first place by North Eleuthera’s administrator.

She ruled that the Potlatch Group’s Judicial Review application consistently referred to “beach frontage” when the decision it was actually challenging - a February 15, 2022, letter from Gilbert Kemp, the administrator, to Rock House Hotel - merely gave the latter permission to continue using “the beach access” to Pink Sand Beach for the benefit of its own guests. 

The battle between the Potlatch Group, which opened the high-end, 11-key Potlatch Club on mainland Eleuthera last year following that property’s redevelopment, and Rock House was triggered by the former’s early 2022 acquisition of what was the Sip Sip Restaurant and Lightbourne House on Harbour Island in early 2022.

The Potlatch Group, whose principals are Bruce Loshusan and Hans Febles-Frank, planned to upgrade their-newly acquired property into a “self-catering hotel” or upscale bed and breakfast attraction. After completing the Sip Sip’s purchase from former owner, Julie Lightbourne, they then sought to lease “beach frontage” adjacent to the property and applied via the Bahamas Investment Authority (BIA) for a Crown Land lease.

However, the Potlatch Group found that chairs and umbrellas had been placed on the beach immediately in front of the Sip Sip property by the Rock House hotel for the benefit of the latter’s guests. While Ms Lightbourne and Don Purdy, Rock House’s former owner, had struck an agreement for the latter to do this the deal did not extend to the Potlatch Group’s takeover.

After Sip Sip’s new owner “confronted” Rock House about its use of their beach frontage, the rival resort subsequently withdrew its original claim that it possessed a valid Crown Land lease for the site. And, on April 12, 2022, the Potlatch Group’s own bid to obtain a Crown Land lease for the beach immediately in front of its property was denied by the Government prior to the launch of Judicial Review proceedings.

“In February 2022, the applicant [the Potlatch Group] sought advice on leasing the beach frontage adjacent to the applicant’s property and, on February 3, 2022, submitted an application to the Bahamas Investment Authority (BIA), enclosing a Crown Land application and development/land use form details,” Justice Carla-Stubbs recalled.

“Beach frontage, in this context, refers to the beach in front of, and immediately adjacent to, the Sip Sip property. On assuming possession of the Sip Sip property, the applicant noticed that there were chairs, umbrellas etc on the beach frontage. These, the applicant learnt, were the property of the Rock House Hotel.

“The affidavit of Hans Febles-Frank recounts how the previous owner of the Rock House hotel had acquired permission of a previous owner of Sip Sip to put chairs and umbrellas etc on the challenged beach frontage. That permission did not extend to the current owner.”

Some 12 days after the Polatch Group submitted its Crown Land lease application to the central government in Nassau, Mr Kemp in his capacity as North Eleuthera’s local government administrator issued the February 15, 2022, letter giving Rock Sound permission “to continue to utilise the beach access located in front of Sip Sip Restaurant for your hotel guests”.

In challenging this decision, the Potlatch Group sought Supreme Court declarations that its “beach frontage is not a public beach but a  private beach” and/or that it has “an exclusive and private right of natural easement over its beach frontage”. 

In addition to seeking a declaration that Rock House “has no right or interest” in its beach frontage in front of the former Sip Sip Restaurant, the Potlatch Group also sought to overturn the administrator’s decision and argued that the permission granted was “unlawful” and breached the Local Government Act.

Finally, the resort developer wanted the Supreme Court to order Rock House to remove its cabanas, umbrellas and chairs from the beach while also granting a stay, or injunction, preventing Rock House, its guests and staff from using that section of Pink Sand Beach.

The Potlatch Group, in submissions supporting its case, argued that the Local Government Act does not give the administrator authority to take such a decision and, in any event, it should have been consulted first. While it took Sip Sip’s new owner nine months to mount its challenge to the February 15, 2022, letter it argued that it “learnt of the decision late” and needed time to prepare.

“The applicant also submits that the issue involved is of significant public interest warranting the court’s exercise of a discretion to grant leave,” Justice Carla-Stubbs wrote in her ruling. “The applicant submits that while the Local Government Act allows for appeals of a decision of the District Council, there is no ‘corresponding provision for decisions made by an administrator’.”

Mr Kemp, not surprisingly, disagreed and asserted that the decision was made using powers granted to the North Eleuthera District Council under both the Local Government Act and Bahamas Public Parks and Beaches Authority Act 2014.

He added that he did not take the decision by himself but, rather, was merely communicating that taken by the District Council in his capacity as its secretary. And Mr Kemp also pointed out that the letter referred to beach access permission, not “beach frontage”.

Rock House, meanwhile, argued that the Judicial Review was “irregular, inappropriate, frivolous and vexatious” because there was no decision by a public body violating the Potlatch Group’s rights. Asserting that no issue of public interest was at stake, the Briland resort also reiterated that the letter complained of makes no reference to “beach frontage”.

Henry Rolle, Rock House’s president and general manager, had originally written “to obtain permission for beach access to Pink Sand Beach by way of the reservation road leading from the public road known as Court Street to the public access beach steps between the Sip Sip Restaurant and Ocean View Club”.

Justice Card-Stubbs, in her verdict, ruled “there appears to be no evidence on the face of the letter” that it granted permission to use a “beach frontage”. And she added: “It is my finding that the letter did not make the decision said to have been made, and which the applicant [the Potlatch Group] seeks to impugn.

“I find that there was no permission granted for the use of ‘beach frontage’ or for any other description that would pertain to the use of the beach adjacent to the applicant’s land. The permission provides for ‘beach access’.....

“I am satisfied that the permission sought by the [Rock House], and given by the [administrator], was permission to ensure continued access to the reservation path known to be used as the beach access and to give permission for [Rock House] to continue acts of maintenance.”

Noting that Mr Frans-Keble was himself uncertain as to whether ‘beach frontage’ is the same as ‘beach access’, Justice Card-Stubbs noted that the “confrontation” between the two resorts may have triggered both to make their respective applications to the Government and District Council.

But, finding that the decision made did not involve ‘beach frontage’ as alleged by the Potlatch Group, she rejected the Judicial Review bid on the basis that there was nothing for the court to assess. Justice Card-Stubbs said the case “appears to be a misuse of the Judicial Review procedure” as the Potlatch Group was really seeking to establish “private law rights” and should have used a different mechanism.