Grand Court Justice Charles Quin on Friday rejected an application for judicial review of the closure of the West Bay Road, saying local activist Rupert Ackermon had waited too long to challenge development plans.
In a 55-page, 129-paragraph decision, Justice Quin scolded Mr. Ackermon, saying “there were so many compelling reasons to apply promptly and urgently for leave to apply for Judicial Review. They failed to take the one necessary step, which was to file the application for leave, promptly.”
Filed on 11 March, Mr. Ackermon, through Campells law firm and Legal Aid funding, challenged the 15 December, 2011, “NRA Agreement” between developer Dart Realty, the Cayman Islands government and its statutory authority, the National Roads Authority.
The public-private partnership proposed an exchange of land between Dart Realty and government, closing more than 4,000 feet of the West Bay Road between Public Beach and Yacht Drive, redeveloping the former Courtyard Marriott, creating recreational facilities throughout the area and extending the four-lane Esterley Tibbetts Highway into the Batabano section of West Bay.
Claiming the agreement was flawed and should be voided, Mr. Ackermon and his attorneys asked the court to quash the decisions of the partnership, keep West Bay Road open and prohibit formal vesting of government land in the developer.
The Cayman Islands Constitution, subsidiary laws and natural justice, he claimed, had been violated.
Describing a chronology of events as “of great importance”, Justice Quin, in a seven-and-a-half page summary, detailed Dart’s initial 2009 acquisition of land between Governor’s Harbour and Batabano, its 2010 purchase of 72 acres in Salt Creek, acquisition of the hotel and procurement of more than 4,000 feet of land along the road corridor.
Pointing specifically to Dart’s April 2011 closure of West Bay Road public access points to Seven Mile Beach and the government’s 15 June, 2011 announcement of the Dart partnership, Justice Quin said Mr. Ackermon had had ample opportunity to seek a judicial review, but had failed to do so, at one point, in the face of funding problems, declaring “the campaign has closed”.
While acknowledging the law stipulates a three-month window to apply for judicial review of any decision, Mr. Ackermon said his 15-month delay had been due to confusion about the dates of the December 2011 agreement and a series of subsequent amendments and additions; a failure of Dart Realty to give him information about the project; and problems with securing funding for the suit.
Rejecting the claims, Justice Quin wrote: “The court has no difficulty in finding as it has, that the applicant [Mr. Ackermon] has failed to file his application for leave to apply for Judicial Review promptly”, and cited the complexities of ongoing construction, a variety of contracts among builders, suppliers, employees and developers.
“I find that if the relief sought by the applicant were granted, at this very late stage, it would cause substantial hardship and prejudice to the Respondents [Dart Realty and government], and would be detrimental to good administration,” Justice Quin said.
Following Friday’s decision, Mr. Ackermon said he was disappointed, but would not give up.
“I’m not happy with the verdict,” he said, “but I kind of figured this would happen. I think we are going to leave it for now.
“We are not going to fold up yet, though,” he said. “We will meet with the lawyers and see what they say. I think everything is appealable, but I’ll leave it to them. We are not ready to fold up.”
Dart Realty Chief Operating Officer Jackie Doak said the company was pleased with the decision, and would press ahead with its plans: “Dart Realty (Cayman) Limited welcomes the court’s decision and looks forward to continuing to fulfil its obligations under the terms of the NRA Agreement.”
Still before the Grand Court, however, is a 25 February writ of summons, filed by four independent West Bay activists – Alice Mae Coe, Annie Multon, Ezmie Smith and Betty Ebanks – seeking relief similar to Mr. Ackerrmon.
Filed against the governor, the attorney general, the minister for works and the NRA, the suit claims the 15 December “NRA Agreement” is unconstitutional, implemented with only minimal consultation and likely to enrich Dart Realty by as much as $500 million at the expense of Caymanians.
While no hearing on the writ of summons has been scheduled, Miss Coe, seeking to review the Quin verdict, declined to comment on Friday.
Similarly, Mr. Ackermon declined to speculate on whether Justice Quin’s rejection of his application might affect the writ of summons.
At a government press briefing last week, Cabinet Minister Mark Scotland told reporters that the finalisation of a value-for-money report on the NRA agreement and the ForCayman Investment Alliance deal between Dart and the government, which is being prepared by accounting firm PricewaterhouseCoopers, was “imminent”. He said the accountants were doing a final review of the report before releasing it to Cabinet.
Mr. Scotland also said the expansion of the Esterley Tibbetts Highway to Batabano in West Bay could be completed within weeks.