The Queen v Major

JurisdictionBahamas
CourtSupreme Court (Bahamas)
JudgeBain, J.
Judgment Date25 October 2017
Date25 October 2017
Docket NumberPUB/JRV 0004 of 2015

Supreme Court

Bain, J.

PUB/JRV 0004 of 2015

The Queen
and
Major
Appearances:

Mr. Frederick R. Smith, QC with Mr. Romauld Ferriera, Mr. Roderick Dawson Malone, Mr. Martin Lundy II for the applicant

Mr. Wayne Munroe, QC with Mr. David Higgins and Ms. Adelma Roach, Ms. Anastasia Hepburn, Mr. Clinton Clarke Jr. and Ms. Tommel Roker for the respondent

Mr. Damien Gomez, QC and Ms. Gia Moxey for Peter Nygard, an Affected Person

Mr. Leif Farquharson and Mr. John Minnis for the 103 Neighbours, Affected Persons

Administrative Law - Judicial review – Whether Director of Public Prosecutions decision to issue and amend Dredging Permit was ultra vires and irrational – Whether decision of Director of Public Prosecutions communicated by a letter to Ms. Hall to waive or vary conditions of Dredging Permit issued to Mr. Nygard was irrational – Whether Director of Public Prosecutions should have given notice of his intention to consider whether an excavation or landfill operation should be carried out – Whether Mr. Nygard was in breach of conditions of Dredging Permit issued October, 2014 – Director Public Prosecution's failure to act amounted to a breach of statutory duty – Sections 7, 8, 10 and 11, Conservation and Protection of Physical Landscape of Bahamas Act – CPPLB Clauses Act – Howard v. Bodington 1877 2 PD 203R v. Secretary of State for the Home Department ex parte Doody 1994 1 AC 531R v. Panel on Takeover and Mergers ex parte Guinness Plc 1990 1 QB 146.

Bain, J.
1

(1) The applicant, the Coalition to Protect Clifton Bay, is a company limited by guarantee formed to represent the collective interests of persons committed, inter alia, to the protection and preservation of the delicate environmental ecological and cultural balance of Clifton Bay and other marine environments around the western end of the Island of New Providence and in The Bahamas generally (“the Coalition”).

2

(2) The respondent, Michael Major, is the Director of Physical Planning, (“the DPP”). The DPP is responsible for considering and granting excavation i.e. dredging and landfill permits under the Conservation and Protection of the Physical Landscape of The Bahamas Act (“CPPLB Act”).

3

(3) The Coalition made application Ex Parte on 15 January 2015 for Leave to Commence Judicial Review Proceedings against the DPP. An Amended Ex Parte Application for Leave was filed 23 January 2015.

4

(4) The Ex Parte Application for Leave was supported by an Affidavit of Fotini Duncombe aka Sam Duncombe in support of an Ex Parte Application for Leave to Apply for Judicial Review and Interlocutory Relief filed on 15 January 2015.

5

(5) Leave was granted on 21 January 2015 and the order granting leave filed on 23 January 2015. It was ordered, inter alia,

“…

  • 2. The Coalition be at liberty to bring Judicial Review proceedings against the respondent upon the grounds and for the relief set out in the Coalition's Application for Leave to Commence Judicial Review and Discovery.

  • 3. Within 14 days of service of this Order, the respondent do provide discovery of copies of any and all application(s) and supporting documents made by Nygard Holdings Ltd., Peter Nygard and/or their assigns with respect to an application for

    • 3.1 A permit to dredge and or conduct excavation works on the seabed in an area comprising 134,947 square feet located southeast of Simms Point/Nygard Cay and particularly described and delineated on a map reproduced on the permit dated 9th October 2014 and signed by the respondent (“the Dredging Permit”); and

    • 3.2 An appeal as for a variation or waiver of condition (f) attached to the Dredging Permit.”

6

(6) The Originating Notice of Motion for Judicial Review was filed on 26 January 2015 seeking the following relief —

  • “1. Declarations as follows:

    • 1.1 A Declaration that the respondent's decisions to grant Nygard Holdings Limited a dredging permit dated 9 October 2014 (“the Dredging Permit”) and/or to amend it were ultra vires and irrational as in contravention of the interlocutory injunction dated 17 July 2014 obtained by the applicant against the respondent in R v. Prime Minister of the Commonwealth of The Bahamas and 6 others, ex parte Coalition to Protect Clifton Bay 2014/PUB/jrv/00015 (“JR2”) and/or the interlocutory injunction dated 25 August 2014 obtained by the applicant against the respondent in R v. Prime Minister of The Commonwealth of The Bahamas and 7 others, ex parte Coalition to Protect Clifton Bay 2014/PUB/jrv/00019 (“JR3”).

    • 1.2. A Declaration that the respondent's decisions to grant the Dredging Permit and/or to amend it were ultra vires and/or irrational because the dredging was prohibited by an interlocutory injunction dated 13 June 2013 obtained by the applicant against Peter Nygard in R v. Prime Minister of The Commonwealth of The Bahamas, and 5 others ex parte Coalition to Protect Clifton Bay 2013/PUB/jrv/00012 (“JR1”).

    • 1.3 In the alternative, if the Dredging Permit is not impugnable for breach of the said injunctions, a Declaration that the decisions to grant the Dredging Permit and/or to amend it are fundamentally flawed and/or procedurally improper because taken by the respondent without any or any proper and/or meaningful consultation and/or without complying with the requirements of the Conservation and Protection of the Physical Landscape of The Bahamas Act (“the CPPLB Act”) in that:

      • 1.3.1. The respondent failed to advertise the existence of the application to dredge:

      • 1.3.2. Knowing that the applicant was an interest party that was entitled to be consulted and that the applicant had obtained an injunction against Mr. Nygard prohibiting dredging, the respondent failed to notify the applicant of the existence of the application and supply it with a copy of the application and relevant supporting documents.

  • 2. As a consequence of the declaratory relief sought above and further and/or alternatively, the following orders:

    • 2.1. An order of Certiorari quashing the decisions to grant the Dredging Permit and/or to amend it:

    • 2.2. An order of Mandamus directing the respondent to require Mr. Nygard to remove the sand deposited on the beach at Simms Point as a result of his dredging:

    • 2.3. An order Prohibiting the respondent from issuing any further dredging or landfill permits to Mr. Nygard and or his assigns in respect of the surrounding seabed to Simms Point/Nygard Cay Site pending final resolution of JR1, JR2, and JR3.

  • 3. In the event that the decisions to grant and or to amend the Dredging Permit are not quashed and the above relief is not granted, the applicant seeks the following relief in relation to the respondent's decision to take no action in response to the breaches of the Dredging Permit conditions:

    • 3.1. A Declaration that the dredging has and is taking place in breach of the conditions attached to the Dredging Permit as amended:

    • 3.2. Further or alternatively, an order of Mandamus requiring the respondent to consider according to law whether to exercise his discretionary power under section 10(1) of the CPPLB Act to revoke or suspend the Dredging Permit.

    • 3.3. An order of Mandamus directing the respondent to require Mr. Nygard to remove the sand deposited on the beach at Simms Point.

    Further Relief

  • 5. Further or other relief as this Honourable Court may deem just.”

7

(7) The Order granting leave to bring judicial review proceedings along with other documents including the Ex Parte Application for Leave, the Affidavit of Fotini Duncombe, and the Originating Notice of Motion for Judicial Review were served on the Attorney General on 23 January 2015.

8

(8) An appearance was entered by the Office of the Attorney General on behalf of the DPP on 5 February 2015.

9

(9) In support of the application the Coalition filed the following Affidavits —

  • (i) Affidavit of Fotini Duncombe aka Sam Duncombe filed 15 January 2015;

  • (ii) Affidavit of Deidre Henfield filed 13 February 2015;

  • (iii) 2nd Affidavit of Deidre Henfield filed 30 December 2015;

  • (iv) 3rd Affidavit of Deidre Henfield filed 4 July 2016.

  • (v) Affidavit of Crispin Hall filed 2 February 2017.

10

(10) The DPP relied on the following Affidavits —

  • (i) Affidavit of Charles Zonicle filed 1 October 2015;

  • (ii) Affidavit of Michael Major filed 30 March 2016.

BACKGROUND
11

(11) This is the fourth application for judicial review by the Coalition with respect to dredging at Simms Point/Nygard Cay.

1. FIRST APPLICATION — 2013/PUB/JRV/00012 (“JR1”)
12

(12) Leave was granted on 13 June 2013 and filed 14 June 2013 for the Coalition to commence judicial review proceedings. The respondents in JR1 were

  • (i) 1st respondent

    The Rt. Hon. Perry G. Christie, Prime Minister of the Commonwealth of The Bahamas (in his capacity as the Minister Responsible for Crown Lands).

  • (ii) 2nd respondent

    The Hon. Philip Brave Davis, Deputy Prime Minister of the Commonwealth of The Bahamas (in his capacity as the Minister of Works and Urban Development and Minister Responsible for Building Regulations).

  • (iii) 3rd respondent

    The Hon. Glenys Hanna-Martin, Minister of Transport and Aviation of the Commonwealth of The Bahamas (in her capacity s the Minister Responsible for Ports and Harbours)

  • (iv) 4th respondent

    The Town Planning Committee

  • (v) 5th respondent

    Peter Nygard

  • (vi) 6th respondent

    Keod Smith

13

(13) By Order filed 14 June 2013 it was ordered, inter alia —

  • “1. The applicant be at liberty to bring Judicial Review proceedings upon the grounds and for the relief set out in the Ex Parte Notice;

  • 2. Until judgment in the judicial review proceedings or until further order of the Court, the 5th respondent (acting directly or through his employees and agents) be and is hereby enjoined from:

    • a. proceeding with or continuing to undertake the construction of a groyne on the sea bed located south east of Simms Point/Nygard Cay or north of Clifton...

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