By FAY SIMMONS

TRIBUNE BUSINESS REPORTER

jsimmons@tribunemedia.net

A PREVIOUSLY undisclosed Physical Planning letter has opened a new disclosure fight over the controversial Rosewood Exuma development, after the document emerged in court two weeks after the project’s proponents had offered to voluntarily halt work.

Miami-based Yntegra Group, developers of the $200m Rosewood Exuma project’s claim that it voluntarily halted work on Sampson Cay as a “gesture of goodwill” has been thrown into question after court filings revealed the developer had been told by the Department of Physical Planning (DPP) the previous day to keep the site in its existing state.

The disclosure comes in an affidavit filed yesterday by attorney Lavar Ferguson on behalf of Turtlegrass Resort & Island Club project, which says the DPP’s August 11 letter was not disclosed to the applicant until the Government filed it in court on August 24.

The letter, addressed to Yntegra’s attorneys, states that works proposed at East Sampson Cay constituted “development” under the Planning and Subdivisions Act and required Site Plan Approval, despite the reduced scope and temporary nature of the works.

The acting director of Physical Planning, Jehan Wallace, further advised that the department had deferred consideration of Yntegra’s request for an exemption and that “the existing position should be maintained and the site should remain in its current state” pending clarification or determination of a matter before the Subdivision and Development Appeal Board.

The letter also instructed Yntegra’s attorneys to bring the position to their clients and contractors.

“Notwithstanding the reduced scope and temporary nature of the proposed works, the Department considers that they constitute "development" under the Planning and Subdivisions Act and require site plan approval. The Building System Deviation Approval does not replace that requirement,” said Ms Wallace

“Therefore, be advised that consideration of your request has been deferred. The Department is not in a position to render a decision until the status of the matter pending before the Subdivisions and Appeals Board has been clarified or determined. In the meantime, the existing position should be maintained and the site should remain in its current state.”

The timing is significant because Yntegra issued a public statement on August 11 describing its decision to pause further activity on Sampson Cay as a “further gesture of goodwill”, noting the move was intended to bring the parties to the table and expedite resolution of the outstanding legal proceedings.

The following day, at a Supreme Court hearing, the developer respondents gave an undertaking not to carry out further activity on Sampson Cay through August 26, save for receiving equipment already scheduled to arrive between August 15 and 25.

According to Mr Ferguson’s affidavit, Yntegra’s attorneys pressed for the undertaking to be characterised as “voluntary” without disclosing the DPP’s August 11 letter to the Court or the applicant.

Yntegra, however, is disputing the characterisation of the DPP communication as a government stop order.

In a separate affidavit also filed yesterday, Yntegra principal Felipe MacLean confirmed that the letter had been received by the developer’s attorneys on the afternoon of August 11, the day before the hearing.

Mr MacLean said the developers considered the letter to be “simply a request to stop activity” rather than an order to cease and desist.

He said Yntegra did not consider there was “any lawful basis” for the DPP to order it to stop the activity being conducted at the time and maintained that, because the developer was going to provide an undertaking to the Court in any event, it was not necessary to advise the Court of the letter.

Mr MacLean said the developers disputed the contents and legal effect of the DPP communication.

The dispute has now become part of a wider disclosure fight in the Supreme Court, with Mr Ferguson maintaining the August 11 letter revealed an earlier July 20 letter from Yntegra seeking an exemption for the installation of a temporary man camp and related works.

That July 20 correspondence has not yet been disclosed to Sampson Cay Retreat Limited, according to the affidavit.

Mr Ferguson said Turtlegrass is seeking disclosure of the earlier application and supporting materials, as well as correspondence, applications, plans, decisions, approvals, refusals, exemptions and authorisations passing between Yntegra and the Government concerning the proposed development and works at Sampson Cay.

He said the late emergence of the DPP letter raised concerns about compliance with the duty of candour and the obligation to place material documents before the Court.

The filings also introduce a second dispute over activity at East Sampson Cay during the court undertaking.

Mr Ferguson said video recorded on August 24 appeared to show a crawler bulldozer operating across the cleared works area, with its blade lowered and pushing, moving and spreading earth or other material. He said other heavy construction equipment was also visible and that the activity appeared to go beyond the receipt, off-loading and storage of equipment permitted under the undertaking.

Yntegra has rejected that interpretation.

Mr MacLean said equipment was received on August 23 and that a crane was used to offload it from flat racks, while a power shovel moved the flat racks to their intended location. He said a small dozer, shown in the video, was used to level the ground where the equipment was to be placed and secured.

“There was absolutely no excavation or felling of trees,” said Mr MacLean.

He said the activity took place over three days and was entirely consistent with the conditional undertaking given to the Court.

Turtlegrass is now seeking urgent injunctive relief, arguing that the undertaking expires on August 26 and that the video evidence raises a serious question about compliance.

The matter is before the Supreme Court for a case management conference on today, where Turtlegrass is seeking for the undertaking to be continued and converted into a court order pending determination of its injunction application.

The competing affidavits leave the central issue sharply defined: Yntegra acknowledges that it had the DPP’s August 11 letter before the August 12 hearing, but disputes that the communication amounted to a lawful order to stop work and says its separate undertaking to the Court made disclosure of the letter unnecessary.