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Save the Bays Wins Court Approval to Start Judicial Review Action about Unregulated Development at Nygard Cay and Jaws Beach
By Sarah Kirkby
Jun 20, 2013 - 1:02:09 PM

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Following an ex parte hearing on 13 June 2013 before Supreme Court Justice Rhonda Bain, Save The Bays (STB) is delighted to announce unregulated development at Nygard Cay and Jaws Beach has been ordered to halt immediately and permission has been given for Save The Bays to challenge government inaction in relation to these unauthorized activities. Pictured leaving court are attorneys for STB (left to right) Romi Ferreira, Dawson Malone and QC, Fred Smith. (Photo courtesy of Bahamas Visual Services)

Permission Given by Supreme Court to Start Judicial Review Case

Following an ex parte hearing on 13 June 2013 before Supreme Court Justice Rhonda Bain, Save The Bays is delighted to announce unregulated development at Nygard Cay and Jaws Beach has been ordered to halt immediately and permission has been given for Save The Bays to challenge government inaction in relation to these unauthorized activities.

Background
Since its successful launch in March this year, Save The Bays has been raising awareness about unregulated development at Nygard Cay. Save The Bays alleges in the action, which for years Nygard has carried out unauthorised construction, dredging and land reclamation.  The beach at Nygard Cay has grown from 3.25 acres in 1984 to more than 6 acres in 2010. In his construction, reclamation and dredging, Peter Nygard has trespassed on Crown land and caused damage to the coast and marine environment. Previous Government attempts to force Nygard to obey the rule of law have been ignored.

More recently, illegal building works have been carried out by Keod Smith, Nygard’s lawyer, at the precious site, Jaws Beach at Clifton Bay. Save The Bays concern is that the Government's failure to act in respect of the events at Nygard Cay is breeding a dangerous sense of lawlessness, where private citizens do as they please on public land.


Who Are The Defendants
Consequently Save The Bays applied for permission to start a Judicial Review Case on 17 May 2013. The case is against:

The Prime Minister: as the Minster responsible for Crown Land;
The Deputy Prime Minister: as the Minister for Works and Urban Development and the Minister responsible for Building Regulation; The Minister for Transport and Aviation: as Minister responsible for Ports and Harbours; The Town Planning Committee: who has a mandatory duty to take action when an individual develops land without the appropriate approvals; Peter Nygard; and Keod Smith.

In order to satisfy the relevant legal tests, Save The Bays had to prove to the court that it had a "sufficient interest" in the proceedings, which it was able to do as an environmental organization made up of concerned residents and environmental experts.

Serious Issues For Trial
The Court also had to be satisfied that there is a serious issue to be tried. Save The Bays persuaded Mrs Justice Bain of this by highlighting the Government has itself recognized that Nygard has trespassed on Crown Land and has previously ordered him to stop. It is of national concern if individuals flout the law in this way. Likewise if members of the public are permitted to destroy public property and place permanent structures on Crown Land adjacent to public beaches without permission, planning or environmental oversight or regulation, it will send an unfortunate message to other Bahamians encouraging them to treat Crown Land that is held for the benefit of all Bahamians as their own private land and ignore concepts of property, due process and the rule of law. Indeed, the issues could hardly be more serious.

In addition, Save The Bays satisfied the Court that immediate disclosure by the government defendants of any applications for permits and permits granted was necessary in order to resolve this matter fairly and justly and in particular to enable the important questions of whether there has been unlawful building activity and/or improper exercise of governmental decision-making powers to be properly determined.

Next-steps
The Government, Nygard and K Smith  have now been notified of the Court’s decision and will shortly be served with   all the court documents.

Consequently Nygard and Smith will have to halt all unregulated development immediately. A failure to comply with the Court's decision could amount to a contempt of court.

 Of course, there are legal mechanisms for the Respondents to challenge the ruling, provided they follow the appropriate procedure.

Discovery and Disclosure of Applications

The relevant Government departments will have to disclose any applications by Nygard and Smith for permits or approvals, confirm what consents and leases have been granted (if any) any provide related correspondence. This kind of information would be available to all in any case if The Bahamas had a badly needed Freedom of Information Act.

After these crucial steps have been taken, a trial date will be set.


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