By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge has rejected evidence from a former Cabinet minister alleging that a Staniel Cay homeowner “circumvented” environmental requirements in constructing a property “typical of of a boutique hotel”.

Justice Neil Brathwaite, in a written ruling dated December 6, 2022, but released yesterday, said he “preferred” the assessment provided by Janeen Bullard to that given by Romauld Ferreira, minister of the environment in the former Minnis administration, on behalf of a group of homeowners challenging the Certificate of Environmental Clearance (CEC) obtained by Kevin Doyle and DeepBlue Properties.

In particular, he found that Mr Ferreira’s assertion that DeepBlue Properties had cleared its “entire property” was contradicted by photographic evidence “which shows vegetation intact at various points of the site”. Justice Brathwaite also hinted the former minister’s findings that “dumped material” came from Mr Doyle’s project were unsupported, while his report also ignored that a property owned by one of his clients had similar “setback issues”.

However, the judge denied the bid by the Attorney General’s Office to exclude Mr Ferreira’s evidence on the ground that he was “conflicted” by virtue of having been minister of the environment, with responsibility for the Department of Environmental Planning and Protection (DEPP), when the Certificate of Environmental Clearance (CEC) at the heart of the Judicial Review challenge was issued on August 9, 2021.

Five other Staniel Cay homeowners, including two Bahamians, Don Rolle and Loyal Rolle, together with Paul Fuchs, Robert Kelly Blake Jr and Daniel Clay Smith Jr, had initiated Judicial Review proceedings seeking to quash the Certificate of Environmental Clearance that allowed Mr Doyle to proceed with construction.

They claimed the property was “larger than existing boutique hotels in Staniel Cay”, and an attempt to construct a mini high-end resort under the guise of a family residential property. Mr Doyle, though, described the project as a “family residence” and not the “Hotel Thunderball” that was originally proposed. The CEC permit forbade any excavation, mining, burning or mass clearance of vegetation by DeepBlue Properties.

Mr Ferreira, in his evidence, denied the Attorney General’s Office’s ‘conflict of interest’ claims, asserting: “I can confirm that I had no involvement with the decision-making with regard to the issuance of the CEC in this matter, not would I have been expected to, as the issuance of CECs falls within the purview of the director of environmental planning and protection pursuant to the Environmental Impact Assessment Regulations 2020.”

The former environment minister, in his assessment of DeepBlue Properties’ project, argued that by presenting it as a single family residence and private villa - rather than a boutique hotel - the developer had been able to obtain the necessary permits while sidestepping the need to perform an Environmental Impact Assessment (EIA).

“Upon true construction and interpretation, the nature and scope of this project is typical of a boutique hotel on Staniel Cay not a single family residence,” Mr Ferreira argued. “DeepBlue Properties, by not describing their development as a boutique hotel during the application process for a CEC, were able to circumvent the requirements for an EIA.”

The Attorney General’s Office, acting for the DEPP, attacked Mr Ferreira’s evidence on the basis that he was the minister responsible for the agency when the CEC was issued and handled any appeals of its decisions. It also asserted that his role contravened the Bahamas Bar Association’s professional conduct regulations, which stipulated that an attorney should not represent any party “with whom he has been concerned in any capacity”.

“They therefore submit that the [former] minister is conflicted and, as a practicing attorney, is in breach of the Bar Code of Professional Conduct and, as a result, his evidence should be excluded,” Justice Brathwaite noted while rejecting the Attorney General’s Office bid.

“I note, as was submitted by the applicant, that Mr Ferreira is not appearing in this matter as counsel and attorney. The provisions of the Bar Code of Professional Conduct are therefore, in my view, irrelevant. I also do not consider that there is any potential conflict as Mr Ferreira has not referenced any information which may have been obtained by him in his former capacity, and there is no suggestion that this matter came to his attention as minister in any way..

“More importantly, the evidence given by Mr Ferreira relates primarily to an ‘environmental audit’ conducted by him at the construction site well after he ceased being a minister. I therefore decline to exclude the evidence of Mr Ferreira on the basis of any perceived conflict.”

Mr Doyle’s opponents also alleged that the CEC was no longer valid because there had been excavation that was expressly forbidden by the permit itself. However, the judge was unpersuaded by that argument or Mr Ferreira’s evidence. He added that Dr Rhianna Neely-Murphy, the DEPP’s director, could not be accused of irrational action in issuing the CEC because there were three other properties of similar size on Staniel Cay.

Justice Brathwaite applied the same logic in finding that there was no need for an EIA or Environmental Management Plan (EMP). And the swimming pool was excluded from the CEC’s prohibition on excavation, resulting in the judge dismissing the Judicial Review and removing the injunction that had halted DeepBlue Properties’ construction work.