Environment Director breached her duty to the public, Smith KC tells court

The Director of Environmental Planning and Protection (DEPP) breached her legal duties to the public when she approved Yntegra's Rosewood Exuma development on Sampson Cay, Exuma, the Supreme Court heard on Tuesday.

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Lawyers for Turtlegrass argued the government conducted public consultation without ensuring the public had access to all the relevant environmental information about the project and failed to re-consult the public and other affected stakeholders after Yntegra made major changes to its project design that would have significant environmental impacts.

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They also argued that DEPP director Dr Rhianna Neely-Murphy breached her duty when she gave no reasons for her decision to grant certificates of environmental clearance for Yntegra. This was particularly problematic given that those clearances would have allowed Yntegra to do exactly what Turtlegrass had been explicitly prohibited from doing - dredging and major marine works in the North Bay.

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Mr Smith described the approvals given to Yntegra to dredge the North Bay and install a service dock and other major marine works as “unbelievable” and “unfair”, particularly given that there was specific provision made in approvals given to Turtlegrass that there should be no extensive marine works or dredging around the island. “Those are in large letters. So it is unbelievable how the director could have approved dredging and marinas in North Bay in the same location where it told Turltegrass there was to be no dredging and no marine works,” said the lawyer.

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“It is baffling and completely irrational - no decision maker properly informed could’ve come to the decision to approve the plan as she did,” he added.

Yntegra’s plans for the North Bay of Sampson Cay - which its opponents have described as plans to turn the bay into an “industrial shipping channel” - have been a major flashpoint in the ongoing legal battle between the Rosewood Exuma developers, Yntegra, and neighbours Turtlegrass and Over Yonder Cay, as well as in concerns raised by local community members via the Save Exuma Alliance.

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Fred Smith, KC, appearing for Turtlegrass in its judicial review of the lawfulness of two certificates of environmental clearance granted to Yntegra, said the Director had failed in both her statutory duties under environmental regulations and her separate common law duty to ensure the public consultation around the project’s widespread impacts was proper and fair.

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He argued that a failure to ensure detailed information was available about the proposed project undermined the objective set out in the Environmental Planning and Protection Act itself, “to promote best practices and to minimise harm to the environment through public consultation.”

He noted that the government itself had said the project would undoubtedly have a significant environmental impact.

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Mr Smith said that once the Director decided an environmental impact assessment (EIA) was required, she was under a statutory duty to run a fair consultation on both the EIA and the Environmental Management Plan (EMP). The EMP is the document setting out how a developer will reduce environmental harm. He cited Regulation 9(2)(c) of the Environmental Regulations.

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Yet the EMP was never available during the public consultation period. That consultation included a public meeting at Black Point, Exuma, on October 3, 2024, and closed in early November. A draft EMP was submitted on February 3, 2025, and a first revision on May 16, 2025. The draft was never made public and only surfaced as an exhibit to the Director's affidavit, filed in February 2026.

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The court heard that the Director herself told the October meeting that the EMP would be posted “once it's completed” and that “we haven't gotten to the environmental management plan portion of the project yet.”

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Under questioning from the judge, counsel for Turtlegrass confirmed the EMP did not exist at the time of the consultation meeting. “There's no sense in having a public consultation that doesn't deal with the proposed mitigation,” Mr Smith said. “As night follows day, the consultees should have had an opportunity to comment on what the proposed mitigation would have been.”

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Even the EIA the public could see was deficient, he argued. It lacked hydrodynamic modelling, sediment transport analysis and a maintenance dredging assessment. Key studies on the North Bay service dock were submitted only after consultation closed. These included its flushing report, design philosophy and marine habitat survey.

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Counsel for Turtlegrass told the court that nowhere in the final EIA or EMP Revision 1 were the environmental effects of works permitted under certificate of environmental clearance  2400A considered at all. “It's not deficient because it doesn't consider it adequately. It doesn't consider it at all,” the court heard. Nor was there any consideration of geotechnical works that the developers themselves said were likely to have significant negative environmental impacts.

This, counsel argued, was “in itself fatal to the lawfulness of the CECs and the EIA.” Even as the decision maker, Neely had been left to engage in a “paper chase”, when she should have had adequate information before her.

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Mr Smith said that by failing to require these documents to be published, the Director breached her duties under Regulations 6 and 9. She also breached her common law duty to ensure consultees were properly informed before consultation. He said this undermined the Act's own objective “to promote best practices and to minimise harm to the environment through public consultation.” The court heard that the Director herself approved parts of the development outside the public process.

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Mr Smith said the Department had already approved “fundamental, foundational and significant parts” of the project, including the service dock and roadways, “without an EIA, EMP or public consultation.” After the public meeting, he said, the Director revoked CEC 2400 and granted CEC 2400A. She did this without any application, EIA, EMP or consultation, and “without independent consideration.” She then solicited and granted CEC 2884 for geotechnical works without even requiring an enabling works statement.

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He said letters from the Department of Physical Planning ordering the works to stop showed they were “not minor little works for geotechnical studies” but development under the Planning and Subdivision Act. This was contrary to the Director's own affidavit evidence.

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He also stressed that the approved “service dock” covers a waste treatment plant, a fuel depot, a roll-on/roll-off facility, a groyne, dredging and diesel generators. “There's just a reference to service dock, as if it's an innocuous little service dock,” he said. “It isn't.” Mr Smith said the Director also breached her duty to reconsult after the project changed.

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“The developer sought to sneak in a massive, environmentally destructive additional element to the project after it was too late for consultees to comment,” he said.  He said it would have dramatic effects on the bay's ecosystem and would be “devastating to the beauty and tourism potential of that environment and to the neighbours already there.”

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Relying on the English case of Holborn Studios, he argued the test is “what fairness requires,” and that fairness plainly required further consultation. The Director had the chance to require a fresh consultation on a single, complete set of documents. “She did not take that opportunity,” he said. “In so doing, she acted unfairly and in breach of her duty to consult and to reconsult.”

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He said Turtlegrass and Over Yonder Cay had an even stronger claim as immediate neighbours. He also noted that the Government had approved the Turtlegrass project before Yntegra's development came along.

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Mr Smith also said the Director's handling of the October 3 town hall meeting that was intended to allow for public consultation on the Rosewood Exuma project fell short in several ways, including the fact that it was held at 4.30pm, the fact that the developer used 48 minutes of the two-hour meeting before questions began, online participants struggled to be heard, and participants were held to unreasonably short time limits.

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The judge asked how the timing had prejudiced Turtlegrass, since its representative attended in person. Mr Smith replied that the consultation was for the whole public, with Turtlegrass being one member of the public with an acutely important interest.

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“A two-hour consultation for a project of this scale is just form over substance,” he said.

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He also argued the Director breached a legitimate expectation of proper consultation. That expectation, he said, was created by her Department's own guidance and by her promises at the October meeting.

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Mr Smith said the Director also breached her duty to explain her decision, giving no reasons for granting CEC 2894. “How would any consultee have known whether, in fact, their concerns were properly considered by the director?” he asked. Turtlegrass says this is particularly egregious because her decision allowed Yntegra to carry out dredging and extensive marine works, the very activities Turtlegrass had expressly not been permitted to do. Mr Smith repeated his objection that Turtlegrass had only two days to make their submissions in the trial.

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“This is a rush to trial, with all due respect, my Lord,” he said. “A matter of this scale and importance, we ought to have been provided with more time to properly present our case.”

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