Beef Island’s unique salt pond to be replaced by mega-yacht marina with cement shores that empties into Hans Creek marine protected area. 100 acres of turtle grass shallows to be dredged for artificial beach, no mangrove shores for waders, upside-down Caseopia jellies, conchs and pelicans. Beef Island airport and Tortola looms beyond.
VIEC challenged the Beef Island development on three grounds: irrationality, illegality, and bias.
Barrister Hockman noted that the strength of VIEC’s case is that the judge needs only to agree with one principle of the multipronged argument for the judicial review to succeed and the developers plans “quashed”.
The time linefor the case noted that in May 2004 chief minister Dr. Smith and others travelled to Hong Kong, where they met developer Raymond Hung, owner of property on Beef Island. At that meeting and in subsequent correspondence they reiterated their commitment to seeing a five-star resort, golf course and mega-yacht marina built before term of office completed saying“We appreciate this relies on requisite approval from relevant departments.” Following this, Quorum Developers spent millions drawing designs and planning the resort –a commercially imprudent step, VIEC’s barrister argued, unless they were assured of forthcoming planning approval.
Mr. Hockman told the Court, the government next passed an order permitting any development over $10 million to be referred to the chief minister for approval, “a power never exercised before or since.” The order is “clearly directed to enable [Dr. Smith] to make the decision in this particular project, given the timing, given the obligation government entered into . . . to facilitate this project.”
Irrationality was argued based on the preponderance of scientific evidence presented to Dr. Smith which he ignored. He must have been acting irrationally to approve the project. Two environmental impact assessments completed by qualified experts agreed in calls for redesign because the development would have serious adverse impacts on a fisheries protected area. The government commissioned their own environment assessment by one less qua lified than the others. This individual also agreed on the adverse impacts to the fisheries protected area. None of the reports, argued Mr. Hockman, gave a green light to the decision that was made by the Chief Minister. The documents “never found the light of day, and were never put in the public domain, either by the interested party or the government.” Any rational decision maker would have used one or all EIA reports as a reason for not granting permission.
Illegal development was the strongest of VIEC’s claims. The developments planned for Beef Island are clearly a breach of the Fisheries Ordinance. No developments can be carried out that may adversely impact a marine protected area. Mr. Hockman introduced the precautionary principle as additional reason for no development near environmentally sensitive or protected areas. It is impossible to replicate a healthy salt pond with widgeon grass somewhere else. It is illegal to build a mega-yacht marina on top of a salt pond that drains into a marine protected area. It is illegal to dredge and destroy 100 acres of turtle grass shallows to create an artificial beach. Plans called for the golf course to punch through shore-lining mangroves, across conch nursery water, onto Little Cay Bay. (A place where I had the good fortune to observe brown pelicans plunge dive for fish and Cassiopeia upside-down jellyfish dwell by mangrove roots.)
The case involved judicial review of the former NDP Government’s planning approval for a five-star hotel, marina and golf course that would destroy the scientifically documented biologically important Hans Creek Fisheries Protected Area in Beef Island, British Virgin Islands.
The case has received international attention and acclaim, including the support of Sir Richard Branson, owner of Virgin Atlantic Airways and Mosquito and Necker Islands in the BVI. Sir Richard provided ORI discounted flights on his airline for the legal team flying in from the UK.
In relation to funding for the legal action which continues to be a major challenge, the VIEC has been fortunate to receive the assistance of the Cambridge-based Ocean River Institute (ORI). It is a registered US Charity that provides support services for small environmental groups to take action in their own communities. You may join with Sir Richard in support of VIEC by making a contribution on line. Please indicate your ecological interests on the tax-exempt form.