Opponents of a planned seven-storey hotel on Seven Mile Beach, who are appealing the Central Planning Authority’s approval of the development, are applying for a judicial review to enable new evidence to be presented at an upcoming Planning Appeals Tribunal hearing.
The Grand Court has allowed the objectors to file the judicial review application and has granted a stay of the tribunal’s appeal hearing until the resolution of the proceedings.
The objectors to the $20 million, 129-bedroom hotel, called The Shores, are the owners of several condominium complexes across the street from the proposed hotel, north of the Renaissance condos on West Bay Road.
In court documents, they assert that the tribunal, without a hearing, had rejected their application to allow the introduction of new evidence before it was even filed and any legal arguments had been made.
More than one month before the appeal hearing, which was scheduled for 20 Nov. 2020, the applicants’ attorneys notified the other parties to the appeal that the minutes of the Central Planning Authority hearing, at which the project was approved, were lacking important details.
These minutes are included in the appeal brief used by the Planning Appeals Tribunal to determine the appeal.
According to the appellants, at the CPA hearing, the developer’s representative drew or wrote on a white board before the members of the CPA. However, despite their protestations at the hearing, neither the objectors nor their legal counsel were shown or allowed to review the content of the white board.
In addition, the appellants asserted that the chairman of the CPA had limited the number of objectors who could speak and had “rushed” them through their submissions while allowing the developer “ample time”.
The appellants argue that exclusively relying on incomplete minutes would provide the CPA with an “unfair and unreasonable” advantage. To save money and time, they requested the consent of the respondents in the appeal to the tribunal to introduce new evidence in the form of an affidavit that included notes taken at the CPA hearing by one of the appellants’ attorneys.
However, the attorney for developer Libanon Property Limited rejected the request, stating there was no way of verifying any record other than the minutes.
On 12 Oct., the applicants’ attorneys, JacksonLaw, sent an email to the Planning Appeals Tribunal and the respondents informing them of their intention to file an application for leave to adduce fresh evidence under the Planning and Development (Appeals) Rules and asked the tribunal to schedule a hearing.
Three days later, the tribunal, following a virtual meeting on 13 Oct., issued a written decision that denied the request.
In that decision, it wrote, “The Tribunal however recognizes in reviewing the minutes of the CPA hearing, that there were materials presented by way of whiteboard sketches at the CPA hearing which were not visible to all parties.”
To this end, the tribunal wrote it would invite Mike Stroh, the developer’s agent, to provide a reproduction of the sketches he presented at the hearing.
In response, the objectors’ attorneys wrote to the secretary of the Planning Appeals Tribunal, questioning how it was possible for the tribunal to convene a meeting, “hear an application” and make a decision without the applicants’ or any other parties’ representations or legal submissions.
The attorneys also complained that the tribunal appeared to have allowed the developer’s architect, without an application, “to adduce fresh evidence at the hearing of the appeal, so as to ostensibly ameliorate the breach of natural justice committed by the CPA at the original hearing”.
In further correspondence, the tribunal stated it had the right to convene and make a decision in the matter without hearing oral arguments, and it also had the right to add documents to the appeal record.
In the judicial review application, the applicants seek, among other things, a declaration that the tribunal acted in breach of procedural fairness and contrary to the rules of natural justice.
At the CPA hearing in August 2019, objectors had questioned the suitability of a business hotel in the area, citing its size, height, density, lack of beach and parking facilities to manage beach access, traffic and other issues. They had, in particular, relied on the fact that the CPA had previously refused permission for a similar development the previous year.
However, after the original plan for a 10-storey hotel was rejected by the CPA in March 2019, the revised seven-storey hotel plan was granted planning permission, although the objectors argued that the overall size and scale of the approved project were virtually identical to the previously refused project.