The way is now clear for attorney-at-law and social activist David Comissiong to legally challenge the decision by Prime Minister Freundel Stuart, in his capacity as Minister responsible for Town Planning, to approve construction of the controversial $200 million Hyatt Centric Resort on Bay Street, The City. High Court judge Madame Justice Dr Sonia Richards this afternoon threw out an application by the Prime Minister, who had asked the court to rule that Comissiong had no legal ground on which to challenge his decision.
Stuart’s attorney Hal Gollop, QC, immediately served notice of his intention to appeal the judge’s ruling.
The court found that Comissiong had standing under the Town and Country Planning Act as a person aggrieved, and he had the right to challenge Stuart’s decision under the Administrative Justice Act as a person whose interest was adversely affected by the permission given to build the hotel.
The judge also ruled that the High Court would hear Comissiong’s case in the public’s interest, a decision the social activist said that was most pleasing.
“In other words [the judge said] that there was sufficient public interest in this in whether the grant of the building permission was correct or incorrect, that the court should hear the matter,” he explained.
Comissiong, who from the very beginning had been pressing Government to conduct an environmental impact assessment and full public consultation, particularly with residents who were likely to be impacted by the construction of the 15-storey hotel, was over the moon following the ruling.
“The decision is in a sense a slam dunk for me in that all three grounds that I argued were upheld by the court,” he said.
Drawing from one of his late father’s sermons as a Methodist minister, Comissiong preached a message of righteousness, justice, humility, love and truth in his pursuit of the Hyatt case.
“And you know, that kept resonating with me. As I walked to the courtroom this afternoon, I felt my father was speaking to me and I felt he was telling me that when I come to address the media after the decision is given, this is what I should say to the country . . . that we are all called upon to be ministers of love and justice and righteousness, and that all of us must resolve to be the protectors of our country,” he said.
The attorney-at-law encouraged Barbadians never to give up in defence of the country by saing that whatever the challenge it is the will of God. Instead, he advised that they should do God’s will in an active, conscious, determined manner.
“I would like to send this message to the Barbadian people. I hope that what I am doing with this case, that I am doing it in humility, and that through me I am trying to be a minister of justice and righteousness,” he said, adding that all he wanted was to look after the country’s best interest, and that “when I come to the court and I say that I am concerned by this grant of permission to build a 15-storey hotel on one of Barbados’ most precious beaches, and that I am concerned that that decision made in the absence of an environmental impact assessment, I am so concerned, that I am asking our Supreme Court to review that decision”.
While Comissiong was understandably elated, the mood was different in the Prime Minister’s camp, as well as in that of Vision Developments led by Hyatt developer Mark Maloney, who had joined Stuart’s legal challenge.
Maloney’s attorney Barry Gale, QC, pointed to the fact that the matter was far from being settled, and that the judge had granted permission for her decision to be challenged in a higher court.
“The ruling made by the court this afternoon is not a ruling on the merits of the case in any way. The court made that very clear. The merits of the case would be determined subsequently at a trial,” Gale said.
“But what is of significance is that both the Prime Minister, the defendant, and Vision Developments applied for leave to appeal to the Court of Appeal,” he stressed, adding that it was significant that the judge had granted leave to both parties.
The senior attorney also said the court decision did not mean the project could not go ahead since there was no injunction stopping it.
It is a point that Comissiong has made in the past, even as he has warned on several occasions that it could prove foolhardy for the developer to begin construction while the matter is before the court.
In fact, when word surfaced in June of this year that work was being carried out at the site of the proposed development as workmen were seen spreading construction material, the social activist had advised Stuart to rescind the permission pending a final court ruling on his challenge.
“One would have expected that as soon as the application challenging the permission was made in court, a responsible and careful Government would have even temporarily suspended the grant of permission,” Comissiong had said, while warning that “if Government does not suspend [construction], it runs the risk that the developer can expend money in beginning construction, only to find, six months down the road, that the court says that the permission to construct was not properly granted and is terminated, thereby leaving the developer with a loss.”
Comissiong has challenged Government’s decision not to conduct an environmental impact assessment on the multi-million dollar beachfront development. The attorney had also argued that Stuart had relied on an outdated physical development plan, even though Section 11(1) of the Town & Country Planning Act stipulates that the plan, which is over 14 years old, must be updated every five years.
He also took issue with the 15-storey elevation, pointing out that the maximum height allowed for beachfront hotels was five storeys, compared to seven storeys for non-beachfront tourist accommodation.