Found at: http://www.anguillaguide.com/article/articleprint/5924/-1/135/
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COURT HALTS DOLPHIN PROJECT Safeguarding Public Interest
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The High Court in Anguilla has handed down a historic judgment in which Resident Judge Justice Janice George-Creque delivered an overnight ruling on Tuesday this week halting the construction of a dolphin pier at the protected Sandy Point Bay Beach, Blowing Point.
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The Dolphin Pier Dolphinarium under construction
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The Judge said the required permission by the Minister of Crown Lands and the Minister responsible for Ports, Harbours and Piers had not been granted to the developers, that the provisions of the requisite laws were not observed, no Government servant or agent had intervened and therefore the Court had to step in to protect the public interest by ordering a halt to the construction work.
The Court’s ruling followed a request by a number of applicants for a “judicial review of the various decisions of the governmental bodies or persons giving rise to the construction of a dolphin pier and/or a dolphinarium” at the above location. The matter was taken before the Court on Monday by Webster Dyrud Mitchell on behalf of the applicants and the Judge reserved until the following day, Tuesday, whether an interim relief should be granted to the persons making the request.
Facts Of The Case
In her judgment the Judge noted, from the evidence, that on June 12, 2007, Dolphin Fantaseas in Anguilla applied for permission to construct a dolphin pier in the water at Sandy Point in respect of Block 28309, Parcel 169. The area is owned by the Crown which secured ownership by compulsory acquisition for a public purpose: the development of a public park and a sports complex.
The facts revealed that planning approval was given by the Land Development Control Committee on December 12, 2007. The only other written approval granted was on December 14, 2007 when the Anguilla Building Board approved an application by the developers for a building at Sandy Point.
The Judge stated that the construction of a dolphin pier or dolphinarian had commenced in the water within the prescribed limits of the Blowing Point Port at Sandy Point Bay Beach. She pointed out that under the Beach Control Act all rights in and over the foreshore of Anguilla and the floor of the sea were vested in the Crown and that the use of the same by anyone required a licence by the Minister of Crown Lands. In addition, no one can construct a pier on any part of the foreshore without the written permission of the Minister responsible for Ports, Harbours and Piers under that specific legislation.
Justice George-Creque further pointed out that under that law “the Supervisor of Ports has responsibility for the management and protection of the foreshore with power to order the removal of any obstruction or construction thereon.” He “is also empowered to operate the ports as appears best calculated to serve the public interest.”
The Judge quoted Counsel (Mr. Ivor Greene of the Attorney General’s Chambers) for the Respondent (the Government of Anguilla), as stating that there was no decision to lease Parcel 169 to the developers of the dolphinarium and that no licence had been issued by the Minister responsible Crown Lands in relation to the Beach Control Act. The only reference he provided in this matter was when he referred to an affidavit of Vincent Proctor of the Planning Department in which Proctor alluded to information passed on to him by the Permanent Secretary in the Ministry of Lands. That information was to the effect that “the Ministry of Lands gave the developer permission to commence building the pier” and that “the licence to use the beach is a new concept, the details of which is still being developed.”
Judge’s Conclusions
The following are the conclusions, remarks and eventual ruling of the Judge after looking at the evidence before the Court:
“From this it is readily inferred as accepted by Counsel for the Respondent, that no licence has been granted for the use of the foreshore of the floor of the sea as required by the Beach Control Act.
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Ferry boats at the harbour east of the Dolphin Pier
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“There is no written permission given by the Minister of Ports pursuant to the Ports, Harbours and Piers Act. Indeed, there is no evidence of any permission in any manner given by the Minister of Ports for the construction of a pier on that part of the foreshore falling within the domain of the port of Blowing Point, or that any licence for such has been applied for or granted by the Superintendent of Ports as required under the Ports, Harbours and Piers Act. Breach of any provisions of the Ports, Harbours and Piers Act also attracts a penal sanction. (See section 44 of that Act.)
“Despite the lack of such licences and permissions under the Beach Control Act and the Ports, Harbours and Piers Act, it is not challenged that construction of a Dolpoinarium of Dolphin Pier has been proceeding apace in the water forming part of the pier and harbour of Blowing Point and encroaching on the fioreshore and floor of the sea at Sandy Point Beach.
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The current Ferry Terminal at Blowing Point
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“It is because of the Dolphinarium’s peculiar location which brings it within the ambit of the provisions of these Acts quite apart from any other law which may be applicable thereto. Admittedly, the construction as being carried out runs afoul of the provisions of these Acts. This then begs the question: “How could such activities which attract criminal sanctions, in the absence of the requisite licences and permissions, simply be allowed to occur and proceed unabated without the necessary intervention by the relevant servants or agents of the Crown? Yet no steps have been taken to bring such activities which are being carried out in plain sight to a halt. Can such a dereliction or abdication of responsibility be permitted to the detriment of the public interest? I think not. It is after all in the public interest that the laws of the land be applied and obeyed. Such is essential for the good governance in a democratic society. Accordingly, in such an instance, the Court must step in with a view to safeguarding the interest of the ordinary citizen.
Judge’s Order
“Based on all the circumstances as I have set out, I am satisfied that the granting of interim relief is warranted to halt the activities being undertaken in admitted violation of the provisions of the Beach Control Act and the Ports, Harbours and Piers Act.
“Accordingly, it is ordered as follows:
(1) That all construction work of all piers or structures or any encroachment on the foreshore or floor of the sea in whatever manner at the Sandy Point Beach or in the waters forming the Port at Blowing Point by any persons whether by themselves, their servants or agents, in violation of the requisite licensing provisions of the Beach Control Act and the Ports, Harbours and Piers Act cease forthwith until further order.
(2) The Respondent shall perform all acts and do all things as may be necessary to ensure compliance with the terms of this order.
(3) It is further ordered and directed that this order be served upon Dolphin Fantaseas Anguilla, being a person appearing to the Court to be directly affected by the making of this order.”
The request for the Judicial Review was made by nine Applicants/Intended Claimants listed in the Court documents with the Attorney General being the Respondent/Intended Defendant for the Government of Anguilla.
Appearances before Justice Georged-Creque were made on behalf of the Applicants by lead Counsel Palmavon Webster assisted by Gerhard Wallbank and Tameka Davis, all of the law firm of Webster Dyrud Mitchell; Ivor Greene of the Attorney General’s Chambers for the Respondent and Josephine Gumbs-Connor (as watching brief on behalf of Dolphin Fantaseas Anguilla).