By NEIL HARTNELL
Tribune Business Editor
Opponents of a controversial Harbour Island project have seen the Supreme Court reject their bid to include the local council as a respondent in the battle to overturn its permits and approvals.
Justice Diane Stewart ruled on Monday that local hotelier, Benjamin Simmons, and Briland Island Responsible Development were unable to amend their Judicial Review action to include the Harbour Island District Council.
This came after attorneys for the multi-million dollar Briland Residences & Marina project, headed by Michael Wiener, argued that the Planning and Subdivisions Act did not apply to Harbour Island because the government had failed to include it in the list of islands it was extended to cover in 2012.
As a result, Robert Adams and Adrian Hunt, of Graham, Thompson & Company, said the Town Planning Act and its procedures govern any planning-related appeals on Harbour Island. This stipulates that there is a "statutory right of appeal" to the Supreme Court that must be followed, rather than the Judicial Review route taken by Mr Simmons and Briland Island Responsible Development.
Ruling that they must comply with the Town Planning Act process, Justice Stewart rejected the changes that sought to add the Harbour Island District Council as an "intended respondent" in the Judicial Review action.
And she also declined Mr Simmons and Briland Island Responsible Development's effort to amend their action to take into account that marina construction was allegedly taking place in violation of the Planning and Subdivisions Act on the basis that the project's site plan had lapsed.
Given that Judicial Review actions focus on the process leading to how permits and approvals are granted, Justice Stewart ruled: "Accordingly I am satisfied that the amendments set out.. have nothing to do with the decision-making process of a public body and they are refused." She awarded costs to Briland Residences & Marina.
Mr Simmons said he had not seen Justice Stewart's ruling when contacted by Tribune Business yesterday, and was unable to comment since he could only be reached by e-mail. Mr Wiener, in an e-mailed response, said the developer will now "take steps" to recover the awarded costs.
This initial skirmish occurred as both sides await the Supreme Court's decision on whether it will give the Judicial Review challenge leave to proceed. A decision could come as early as August 6.
The National Economic Council (NEC) gave an approval-in-principle to Mr Wiener's 4m Harbour Island to develop the 5.6 acre Harbour Island Marina project on October 6, 2017.
The Bahamas Environment Science Technology (BEST) Commission approved the developer's environmental studies on December 11, 2017, and the Heads of Agreement was signed on March 14, 2018, although it has never been made public.
In November 2018, the Government approved-in-principle the developer's acquisition of a further 21.4 acres of land and an expanded marina resort comprising "a waterfront restaurant, a gourmet food store, retail stores, restaurants and spa facilities, cottages, villas and suit [and four] over-the-water bungalows, subject to meeting the requirements". The project now calls for an "exclusive 27-acre waterfront community with 83 residences".