Peter Nygard’s proposed expansion plans at Simms Point/Nygard Cay...

Flawed Process For Nygard Plans

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

IN the face of mounting legal pressure and international attention, the government has been forced to extend its public consultation process on Peter Nygard’s proposed expansion plans at Simms Point/Nygard Cay for a further 21 days. In an embarrassing climbdown it has also had to admit to confusion and flaws in the process thus far.

Letters obtained by The Tribune yesterday, signed by Director of Physical Planning Michael Major and sent to Save The Bays (STB), the environmental group leading the opposition to the development, show that the consultation period has officially been extended because of the department’s failure to obtain certain information about Mr Nygard’s plans and its failure to disclose certain documents.

Concerned residents had requested the information and documents in order to make meaningful representations with respect to Mr Nygard’s applications.

Lawsuits were filed this week against the government by STB and wealthy Lyford Cay property owners, including Baha Mar Chairman Sarkis Izmirlian and retired British actor Sir Sean Connery, seeking a judicial review of the process.

On June 18, the government announced the start of the initial 21-day public consultation period that ended on Wednesday with respect to Mr Nygard’s applications for Crown land and approvals for building, dredging and other types of development in the surrounding seabed.  

Mr Major noted in a letter dated July 6 that despite the start of the public consultation process, his department has not received applications from Mr Nygard with respect to certain “future buildings” in his site plan.

He said that Mr Nygard’s “set of architectural plans displayed are incomplete and insufficient to secure a building permit.”

He added: “The plans displayed represent all of the plans submitted with the application. It is customary that more plans are required by the relevant agencies as the application progresses through the approval process.”

Mr Major also said that copies of certain relevant documents cannot be given to residents and apologised for not having a study that considers the sustainability of Mr Nygard’s work electronically available for inspection.

“While it is not possible to provide copies of the documents for each request, three printed copies of each document are available to accommodate simultaneous inspections,” the letter said. “The department will continue to make available for public inspections, all of the information submitted in respect to planning applications during the consultation period.”

“We apologise for the unavailability of the electronic version of the study referenced ... and instead another relevant study was posted on the BEST Commission’s web page.”

“In light of the initial difficulties in obtaining the digital information, consideration will be given for a reasonable extension to the consultation period.”

That extension was granted in a letter dated July 9. 

Earlier this week, American television personality Nancy Grace and former US Treasury Secretary Nicholas Brady were among the 103 people who jointly sued the government while expressing concerns about environmental degradation and alleged unauthorised activities by Mr Nygard that they believe have already taken place in the area.

The government’s consultation exercise has been labelled a “farce” by some critics who believe that the government might try to sanction Mr Nygard’s plans as a favour for his financial support to the Progressive Liberal Party (PLP) over the years.

The Tribune understands that STB will be before the Supreme Court on Monday to continue to press the case for judicial review. 

July 11, 2014

Tribune 242

Peter Nygard has unlawfully “trespassed” on Crown Land through his construction activities at Simms Point/Nygard Cay

Government Proposed 21-Year Lease Of Reclaimed Crown Land To Peter Nygard

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Government proposed a 21-year lease of reclaimed Crown Land at Nygard Cay to its fashion mogul owner, with an annual rental rate pegged at $25,000.

Documents obtained by Tribune Business reveal that the Christie administration sought to justify the lease on the grounds that it was needed to support an “estimated $50 million touristic development” at Nygard Cay.

The August 3, 2012, letter from Richard Hardy, the Department of Lands and Surveys’ acting director, provides the first concrete confirmation that the Government was assessing its options for granting a Crown Land lease - the issue at the heart of recently-launched Judicial Review proceedings.

The letter, described as a Memorandum, does not go into detail about the nature of the tourism project proposed by Peter Nygard for his Lyford Cay property.

However, the $50 million sum referred to matches the figure discussed at a meeting between Mr Nygard and Bahamas Investment Authority (BIA) officials, which was held two months’ prior to Mr Hardy’s letter.

Previously obtained notes of that June 2012 meeting revealed that Mr Nygard was proposing a $25-$30 million investment to rebuild his fire-destroyed Nygard Cay home, with the balance earmarked for a stem cell research and treatment facility targeted at medical tourism. It would thus appear this proposal is what Mr Hardy is referring to.

Mr Hardy’s memorandum, addressed to the permanent secretary in the Prime Minister’s Office, and which bears the director of investments’ (Joy Jibrilu) stamp, dated August 15, 2012, is headed: ‘ Proposed Lease of Land at Nygard Cay for a proposed touristic development’.

Referring to an August 1, 2012, missive he had received, containing two proposed “plans”, Mr Hardy disclosed that the minister responsible for Crown Lands - who is Prime Minister Perry Christie - had decided to lease a portion of the reclaimed seabed at Nygard Cay to Mr Nygard.

“It is noted in your second paragraph that the Minister Responsible for Crown Land has determined that appropriate acreage should be leased to Mr Peter Nygard to facilitate the proposed estimated $50 million touristic development,” Mr Hardy wrote.

Referring to one of the lease options presented to him, Mr Hardy said the “area coloured red is recommended on a 21 years renewable lease basis, at an annual rental of $25,000, (with reviews after seven and 14 years)”.

The Lands and Surveys acting director then effectively confirmed the acreage involved was Crown Land reclaimed from the sea.

He added: “In effect, this recommendation is in respect of the property between the December 1984 high water mark and the June high water mark.

“It does not include those areas..... which are covered by water (other than the northern lagoon) and are tidal, i.e. (4.779 acres minus tidal, non-lagoon, areas).”

A handwritten note at the bottom of Mr Hardy’s letter says a proposal was expected imminently, and that all these details “should factor into Cabinet/National Economic Council papers”.

While there is no evidence to suggest that the Nygard Cay lease was a ‘done deal’, the contents of Mr Hardy’s letter are likely to reignite the controversy surrounding its Canadian owner’s construction endeavours.

This is because the Save the Bays coalition, in its Judicial Review action, is challenging the Government’s alleged failure to prevent “unauthorised development” at Nygard Cay - the same development it claims has resulted in the seabed reclamation subject to the Crown Land lease.

In effect, if the coalition’s allegations are correct, the Christie administration’s plan to lease the reclaimed Crown Land to Mr Nygard, under cover of facilitating a tourism development, would be tantamount to legitimising/sanctioning wrongdoing.

Mr Nygard has argued that his Simms Point property has expanded through natural accretion, but this has been dismissed by both Save the Bays and the former Ingraham administration.

In the Attorney General’s draft defence and counterclaim, filed in response to a legal action initiated by Mr Nygard, the former government sought a court declaration that the Canadian fashion mogul had unlawfully “trespassed” on Crown Land through his construction activities.

Implying that Mr Nygard lacked the relevant permits and approvals, the Attorney General’s Office had also sought a court Order requiring Nygard Cay’s owner to remove - at his own expense - all the groins, docks and seabed infilling he has allegedly carried out, thus returning the coastline to its original 1984 boundaries.

The Christie administration’s Crown Land lease proposals thus represent a stunning U-turn on the position taken by its predecessor within three months of the 2012 general election. The $25,000 annual lease payment, which over 21 years would amount to a collective $525,000, also pales into insignificance alongside both the Government’s fiscal deficit and the alleged $25-$30 million valuation Save the Bays has placed on Mr Nygard’s reclaimed Crown Land.

And the coalition had previously warned that granting Nygard Cay’s owner his much-desired lease would set a bad precedent, sending signals to Bahamian and other foreign landowners that they could ‘do as they pleased’ with respect to developing their properties without reference to existing laws and regulations.

Further evidence that the Government was contemplating a Crown Land lease to Mr Nygard is contained in the August 16, 2013, affidavit by Hyacinth Smith, an attorney in the Attorney General’s Office.

The affidavit, sworn in support of the Government’s bid to have Save the Bays’ Judicial Review action thrown out, refers to “the consideration of any lease options by the Government” in relation to Nygard Cay.

Other documents filed in support of the Government’s application, though, have also revealed previously unknown facts related to the Nygard Cay situation.

• The former Ingraham administration obtained two $2.7 million-plus bids from construction firms to return Nygard Cay’s size, and coastline, to 1984 conditions. The work, it told Mr Nygard, would have to be paid by himself.
  
  
• The Christie administration issued Mr Nygard an annual dredging permit, via the Department of Lands and Surveys, for the period June 13, 2012, to March 12, 2013. The issuance came just six weeks after the general election.

A transcript of the court hearing at which Save the Bays obtained permission to file its Judicial Review action saw its attorney, Fred Smith QC, disclose the contents of a January 9, 2009, letter sent by the then-government to Mr Nygard.

Referring to talks with the fashion mogul’s then-attorney, Sidney Collie, the Government said it was its “intention to cause the coastline at Simms Point... to be reinstated”.

It added: “The Government has sought and obtained bids from two suitably qualified firms, Tycoon Management and Bahamas Marine Construction, in the amount of $2.75 million and $2.73 million respectively, to undertake the proposed reinstatement work.

“The two bids are being reviewed, and you will be advised of the successful bid shortly. It is the Government’s determination that the full cost of the work be borne by you.”

Tycoon Management is headed by James Curling, while Bahamas Marine is part of the Mosko Group of Companies.

Ms Smith’s affidavit for the Government, though, questions the “bona fides” behind the Save the Bays’ Judicial Review claim.

She alleges that the action is nothing more than the latest extension of the battle between Mr Nygard and his Lyford Cay neighbour, hedge fund billionaire Louis Bacon, who is a prominent member of Save the Bays.

This, she added, “throws doubts on the bona fides of the Judicial Review claim”. And the application’s reference to the Bahamas Investment Authority meeting “speak clearly to the collateral interest of the coalition in opposing the consideration of any lease options by government with respect to the Nygard Cay matter, and a stem cell facility connected to Mr Nygard”.

All three of the Government, Mr Nygard and the latter’s attorney, Keod Smith, are seeking to have the Judicial Review action dismissed on legal technicalities.

For example, the Attorney General’s Office and Mr Smith are alleging that in obtaining leave to file its Judicial Review action at a hearing where only it was present, Save the Bays and its attorneys failed to properly disclose all material facts relevant to the case.

Indeed, Mr Smith’s summons blasted those behind the Judicial Review action as “busybodies with misguided complaints”.

Mr Nygard, for his part, wants the injunction halting all further construction works at Nygard Cay thrown out on the grounds that he is not a public official or body subject to Judicial Review. He is also seeking damages for the injunction.

And the Attorney General’s Office has blasted the document discovery order imposed on the Government as a “fishing expedition”.

April 26, 2013

Tribune242 

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Supreme Court Orders Peter Nygard and Keod Smith to Halt Works at Clifton Bay and Simms Point / Nygard Cay...

Court Halts Peter Nygard Work In Clifton Bay Area

By DANA SMITH

Tribune Staff Reporter

dsmith@tribunemedia.net

THE Coalition to Protect Clifton Bay has won a court ruling halting construction works in the Clifton Bay area by Peter Nygard.

They were also successful in their Supreme Court application to require any dealings between the government, Mr Nygard and Keod Smith regarding Clifton Bay to be made public.

 

The court documents halt works in the Bay area by Mr Nygard and Mr Smith “acting directly or through (their) employees or agents.”

 

Filed before Justice Rhonda Bain, documents say Prime Minister Perry Christie, Deputy Prime Minister Philip ‘Brave’ Davis, and Transport and Aviation Minister Glenys Hanna-Martin must provide the coalition with ‘full and frank disclosure’ of several items.

 

These include copies of any applications or grants of permits, approvals, or leases made by Mr Nygard and Mr Smith in the Clifton Bay area.

 

The Queen and Mr Christie are named as the first respondents, Mr Davis as the second, Ms Hanna-Martin as the third, the Town Planning Committee is listed as the fourth, Mr Nygard as the fifth, and Mr Smith as the sixth. The coalition is the applicant.

 

The fourth paragraph of the court documents say: “The first to fourth respondents must forthwith provide the applicant with full and frank disclosure of the following to the extent that they are within their possession and control:

 

“Copies of all applications (if any) made by the fifth and sixth respondents for permits, approvals, or leases in respect of the works and properties referred to in paragraphs two and three herein;

 

“And copies of all permits, approvals or leases (if any) that have been granted to the fifth and sixth respondent together with, in each case, copies of all the documents that were before the relevant respondent when it reached the decision to grant such permits, approvals, or leases and the reasons for such decisions and the conditions (if any) upon which is may have been made.”

 

The works and properties referred to in paragraphs two and three, involve various construction works in the Clifton Bay area.

 

The second paragraph says: “Until judgement in the judicial review proceedings or until further order of the court, the fifth respondent, (acting directly or through his employees and agents) be and is hereby enjoined from proceeding with or continuing to undertake” the construction of a groyne on the seabed of Simms Point/Nygard Cay or north of Clifton Bay, as well as the dredging of the sea bed in that same area.

 

The third paragraph says: “Until judgement in the judicial review proceedings or until further order of the court, the sixth respondent (acting directly or through his employees or agents) be and is hereby enjoined from proceeding with or continuing to undertake the demolition of the old dock, the construction of a new dock on the sea bed and beach and the placement of large boulders on the western edge of the concrete ramp all at Jaws Beach, south east of Clifton Bay.”

 

Court documents also note a penal notice to the first, second, third, and fourth respondents if they neglect to obey the court’s order for full disclosure.

 

“If you, the within named first, second, third, or fourth respondents, neglect to obey paragraph four of this order, you may be held to be in contempt of court and liable to imprisonment at Her Majesty’s Prison, or a fine or the sequestration of your assets,” court documents say.

 

A penal notice is also listed for Mr Nygard if he neglects to obey the court’s order regarding constructions, north of Clifton Bay.

 

“If you, the within named fifth Respondent, neglect to obey paragraph two of this order, you may be held to be in contempt of Court and liable to imprisonment at Her Majesty’s Prison, or a fine or the sequestration of your assets.”

 

A similar penal notice is listed for Mr Smith.

 

“If you, the within named sixth respondent, neglect to obey paragraph three of this order, you may be held to be in contempt of Court and liable to imprisonment at Her Majesty’s Prison, or a fine or the sequestration of your assets.”

 

June 14, 2013

 

Tribune 242

 

Caribbean Blog International

 

Save the Bays... formerly Coalition to Protect Clifton Bay has filed an action in the Supreme Court... seeking a judicial review to stop the dredging at Simms Point / Nygard Cay... ...

Nygard Cay Also Part Of Review Bid

By SANCHESKA BROWN

Tribune Staff Reporter

sbrown@tribunemedia.net

AN ENVIRONMENTAL group has filed an action in the Supreme Court, seeking a judicial review to stop the dredging at Nygard Cay.

 

The action was filed by Callenders law firm on behalf of Save the Bays, formerly Coalition to Protect Clifton Bay, the new umbrella organisation. Respondents include several government departments, the Town Planning Committee, Peter Nygard and Mr Nygard’s associate, former ambassador to the environment Keod Smith.

 

The coalition has claimed that work carried out at Simms Point/Nygard Cay, which doubled the size of the area since it was purchased by fashion mogul Peter Nygard, has damaged areas of Clifton Bay, including Jaws Beach.

 

They have previously called for the government to step in and protect the delicate, environmentally significant area.

 

Fred Smith, QC, said the judicial review is on the basis that Save the Bays represents the collective interests of persons committed to protecting Clifton Bay and other parts of The Bahamas of particular environmental interest.

 

“In a nutshell, the judicial review seeks to determine whether the rule of law applies in The Bahamas or not,” he said.

 

In addition to a judicial review, the action seeks an interim injunction restraining Nygard and Smith from continuing what it claimed was “unauthorised construction and dredging.”

 

It also alleges that Nygard and Smith are trespassing on Crown land. Specifically, it cites construction of a groyne, dredging of the seabed, demolition of an existing dock at Jaws Beach, construction of a new dock on the sea bed and beach and the placement of large boulders on the western edge of the public boat ramp at Jaws Beach.

 

The suit alleges that the works being carried out “without the requisite permits and approvals constitute offences under the Planning and Subdivision Act, the Building and Regulation Act and the Coast Protection Act.”

 

Initially called the Coalition to Protect Clifton Bay, the organisation announced its name change to Save the Bays in early May to avoid confusion with the original coalition to save the historic area east of Lyford Cay for the Bahamian public when it was the target of developers some 14 years ago. At that time, the coalition called for the creation of a land and sea park but only the land park was created. The original coalition continues to call for the sea park and has expressed concern about activities at Nygard Cay. With many of the same supporters in both organisations, Save the Bays is also urging passage of a Freedom of Information Act and an Environmental Protection Act.

 

May 24, 2013

 

Tribune 242

 

Caribbean Blog International