NASSAU, BAHAMAS – Opponents of a multi-million marina and condominium development on Harbour Island are celebrating what they consider a ‘huge victory’ after a judge quashed the development’s permits and halted development.
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 Commitee, to set aside the development’s site plan approval.
The Court also made various cost orders, awarding the applicants the costs of the leave application and the injunction and awarding 4M and the Town Planning Committee (TPC) the costs of the Judicial Review hearing that took place on September 24th.
While the developer did not issue comment on the ruling, it is understood 4M intends to forge ahead and seek the requisite approvals under the Town Planning Act from the District Council for Harbour Island.
Simmons said: “This is a huge victory – we had concerns about the approval process and they have been seen by learned judged to be justified and even the opposition had to concede. The result, 4M building permits are quashed and they’re under injunction until they do it properly.
“Bahamians are not stupid, we will ask questions and challenge you if you can’t answer them. Develop but do it right! There are too many runaway insane developments, that rarely succeed all over the nation. You cannot come to our country and do what ever you want without accountability.”
Simmons added: “At the end of the day Harbour Island is one of the more prosperous islands; we don’t really need development on this scale what we need is take care of what we have so that other islands in the Bahamas might attract prospects and prosper as we have.”
The government signed a heads of agreement with American real estate developer and 4M’s principal Michael Wiener to develop a $45m world class tourism resort on Harbour Island back in March 2018.
However Simmons, a Harbour Island resident and chief critic of the project, expressed concerns over the projects impact.
Simmons argued the project could have negative impacts to the local environment, and was too large in scope for the tiny island.
At the center of the judicial review proceedings 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 Planing 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.
In an interview with Eyewitness News Online, Simmons expressed concern that by ruling that the PSA does not apply to Harbor Island, the island’s future development rests in the hands of a small group of persons.
He expressed concerns the members of the Harbour Island District Council are not fully equipped to evaluate, regulate or monitor a project of the scale proposed by 4M.
Gail Lockhart-Charles, attorney for the applicants, said: “Our goal was to prevent this development from going forward because we felt it was contrary to the interests of The Bahamas and the Bahamian people. This is not the end of it.
“We still have to deal with the structure in Harbour Island bay that they have built as well as the contempt proceedings. Whatever application they seek to put in has to be scrutinized and nothing can be approved that is unlawful. Bahamian law requires the planning authority, whether it is the District Council or the Town Planning Committee to make a reasonable decision, they can’t just let anything pass through.”
Lockhart-Charles added: “We say that what the developer proposed and started to build are materially different.”