4M Harbour Island developer says court ruling gives ‘clarity’ on future approvals path

NASSAU, BAHAMAS – Developers of the 4M Harbour Island marina and condominium project said yesterday they welcomed last week’s Supreme Court ruling which effectively halted the project due to ‘unlawful’ permits.

In a press statement yesterday, 4M said the ruling provides clarity over the path the project needs to take to secure the necessary approvals, adding the outcome was just a matter of “red tape”.

The developer further claimed the multi-million project has overwhelming support from residents of Harbour Island.

In a ruling handed down last week, Justice Diane Stewart found the approvals granted by the Town Planning Committee to 4M Harbour Island Limited for development of the marina was unlawful.

The judge ordered the project be stayed until the appropriate approvals are obtained. Ben Simmons, owner of The Other Side hotel, and Br-Island Responsible Development Ltd. (BIRD) had initiated judicial review proceedings against 4M’s Briland Club Residences and Marina development and the Town Planning Committee, to set aside the development’s site plan approval.

“This is essentially a matter of red tape,” the 4M statement read.

“4M is seeking to bring a boutique resort experience to Harbour Island, complete with over 100 jobs for the local community. We expect the Briland Club Residences and Marina development to be a boost to both the Harbour Island community and economy.

“At every step of the process, we have followed the advice given to us by the government on how to proceed. We followed the application process that was recommended, held a public meeting on Harbour Island on November 16, 2017, with more than 100 people in attendance, and worked closely with government agencies to secure a Heads of Agreement and proceed with the project as planned.”

The statement continued: “While we were disappointed that this confusion arose over which agency was required to give the site plan approval, we welcome the opportunity to ensure the correct documentation is in place. The plan for our Briland Club Residences and Marina development is a long-term one, and so we want to start it on the right foot, not just for ourselves but for the community we wish to be part of.”

The developer expressed concerned over accusations leveled by Simmons, the development’s chief critic – despite a court gag order.

“At various times, Mr Simmons accused 4M of, among other things, performing construction without a building permit, and without an approved EIA. These accusations were all false,” the statement continued.

“4M has complied with all the requirements of the court, including the gag order which limited our ability to respond to some of the allegations raised, including on social media. 4M intends to pursue remedies against Mr Simmons for breach of the gag order.

“Mr Simmons has signaled an intent to pursue remedies against 4M for an alleged breach of an injunction which will be opposed on the basis that, among other things, 4M complied with the injunction – just as we have sought to comply with every step of the process.”

Attorney Robert Adams for 4M said: “It may sound confusing with all the different acts – but essentially once it was agreed by all parties that the wrong authority had granted approvals, then it was an obvious step that we would need to receive those approvals from the correct authority instead. We are confident those will be secured and look forward to working with the Harbour Island District Council to secure those and proceed with the development.”

4M also sought to clarify some assertions made by Simmons.

The statement read: “On the basis of how attorney’s fees were awarded, the court was clear that Mr Simmons was not the prevailing party. The court ordered payment of fees as follows; the Town Planning Committee – and not 4M, an innocent party – is to pay Mr Simmons costs for the application for leave for judicial review; Mr Simmons is to pay 4M and the Town Planning Committee costs for the application for leave to amend the application (this was the most time-intensive part of the lawsuit); Mr Simmons is to pay 4M for its costs related to the substantive hearing (i.e. Mr Simmons’ underlying complaint that site plan approval should be quashed because of the government’s failure to comply with the PSA).

“He is also to pay half of the costs of the Town Planning Committee relating to this hearing.”

A 4M spokesman added: “We look now to the future. We look to securing site approval under the Town Planning Act in Harbour Island, and we look forward to resuming the project once those are secured. Briland Club Residences and Marina Development is a game-changer for the local economy. It will bring jobs, more visitors and a real boost to the community. We know there is overwhelming public support – and we will be delighted when the red tape is untangled and we can deliver to the public what we have promised.”

At the center of the judicial review proceedings initiated by Mr Simmons was determination of what statute law governed the development – namely whether the Planning and Subdivision Act or the Town Planning Act governs the process for obtaining approvals to develop the Briland Club’s marina and resort project.

The applicant’s primary ground was that the Planning and Subdivision Act (PSA) governed the Development in Harbour Island.

It was furthered the TPC failed to comply with Section 37 of the PSA, and any decision made by the TPC in breach of act is unlawful and invalid, and ought to be quashed.

They also argued if the PSA was not extended to Harbour Island, the TPC had no jurisdiction to grant the approval that it did.

Under the TPA, the District Council for Harbour Island is empowered to make decisions, including granting approvals utilizing the powers, rights, and obligations under that statute.

The Planning and Subdivision Act, while it refers to Eleuthera it does not specifically reference Harbour Island as one of the islands where the Planning and Subdivision Act applies, which would mean approvals for such developments rest with the Harbour Island District Council.

The developers attorneys have argued for this interpretation, claiming the PSA was not extended to Harbour Island by the Planning Subdivision (Extension to Family Islands) Order 2012.