Director unlawfully raised ‘zombie’ Sampson Cay approval from the dead, lawyers tell Supreme Court

The Director of Environmental Planning and Protection brought a “zombie” environmental approval back from the dead when she twice revived an expired clearance for Yntegra’s East Sampson Cay works, in secret and without any legal power to do so, lawyers for Turtlegrass told the Supreme Court.

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Fred Smith, KC, Turtlegrass, said Certificate of Environmental Clearance (CEC) 2400A expired for Yntegra’s Rosewood Exuma project on October 8, 2025. Nearly two months later, on December 15, 2025, the Director purported to extend it. On or about April 28, 2026, she purported to extend it yet again.

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He warned that if the court allowed the extensions to stand, no one could take decisions based on an approval having lapsed. “What we would have, my Lord, is a series of zombie CECs that could be resuscitated to haunt people after they were supposed to be dead and interred,” he said.

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“One could buy land on the basis that your neighbour’s CEC had expired. If it could then be revived, the entire basis that you purchased the land would be undermined.”

“The question is whether the Director had statutory power to revive or extend CEC 2400A after it had expired,” Mr Smith said. “The applicant’s case is very simply that she did not.”

“It had expired, so there was nothing to extend, and therefore there was no power to do so.”

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After the certificate expired, he noted, the developer bulldozed and cleared land, disturbed the shoreline and moved earth. It held no Forestry permits and only a single building permit, for a collapsible structure at the time. The court was shown recent photographs of the damage.

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“Land grading, destruction, bulldozing, all on the back of this alleged CEC extension,” Mr Smith said. The works stopped only when the Department of Physical Planning intervened.

He said the certificate had been irregular from the start. It was originally granted without any application. When it expired, the developer acknowledged this and asked for an extension, and the Director “obliged.” Again, there was no application, no review of whether an environmental impact assessment or management plan was needed, and no public consultation.

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He said the government’s argument, that the director’s power to vary a certificate’s conditions includes the power to change its expiry date, “confuses the power to vary a live instrument with power to revive a dead one.”

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“Silence is not enough to authorise retrospective revival of an expired instrument,” he said.

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He pointed to the Planning and Subdivision Act, which expressly provides for when a preliminary site plan approval lapses. He argued that if Parliament had intended expired environmental certificates to be revived, it would have said so.

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The lawful course, he said, was a fresh application. That would have required the Director to consider the works as they then stood. According to Turtlegrass, those works had grown well beyond geotechnical investigations to include diesel generators, fuel storage, dredging, employee housing, a waste disposal plant and several iterations of a groyne and jetty.

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Mr Smith said Turtlegrass had written to the Department in June and July 2025 raising its concerns and received no reply. By the time of the first extension, a judicial review challenging how certificates had been granted for the project was already under way.

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He told the court the developer produced the extension at the injunction hearing in that case and relied on it to argue the works should be allowed to continue.

“How inappropriate could that have been, for that extension of a CEC that had expired, as far as we were concerned, to have been resuscitated and resurrected in secret in the teeth of a judicial review about the project as a whole?” he said. “If there ever was a breach of a duty of candour from inception, it is laid bare.”

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“There was no respect for the EPPA (Environmental Planning and Protection Act), no respect for the regulations, and no respect for the process before the court. Absolutely none.”

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Even if the director did have the power to extend, Mr Smith argued, the decisions were still unlawful. She followed no process, gave no reasons, and ignored changes to the project, the extent of the works, and the pending litigation. He said the timing supported an inference that the extensions were intended to legitimise works already carried out.

The judge raised a practical concern: requiring a developer to start again from scratch whenever a certificate expires could be burdensome. Mr Smith replied that it “may be most inconvenient for the developer,” but the law requires a fresh application, and that certainty matters more.

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“There must be certainty in the process,” he said. That certainty, he argued, protects the Director in monitoring projects, developers in knowing their deadlines, and affected parties in knowing their rights.

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“The court is not being asked to micromanage environmental regulation,” he said. “It is being asked to enforce the limits of statutory power. An expired CEC cannot be revived by administrative letter.”

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Turtlegrass is asking the court to quash both extension decisions and to stop the developer relying on them for any works on East Sampson Cay.