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Leave
Granted for Judicial Review of Government’s Decision on
Dolphinarium
Date Posted: May 07, 2008.
On Monday and Tuesday 5th and 6th May 2008, the Anguilla
High Court heard an application for leave to apply for
Judicial Review of the Government's decision to permit the
construction of a Dolphinarium at Sandy Point Bay Beach,
Blowing Point.
The Hon. Justice Janice George-Creque granted that
application at the hearing on Monday but reserved overnight
the question whether she should grant an interim order
restraining continued construction of the Dolphinarium.
On Tuesday morning she held that the Dolphin pier
construction should be halted. In doing so, she concluded
that the Government was in breach of its duties to uphold
the law in the public interest. She therefore ordered that
all construction at Sandy Point Beach or in the waters
forming the Port at Blowing Point cease forthwith until
further order.
The Applicants were represented by Webster Dyrud Mitchell.
Ivor Greene senior Crown Counsel represented the Government.
Josephine Gumbs Connor held awatching brief for Dolphin
Discoveries.
The next hearing has been fixed for Friday 13 June 2008.
Background and further details:
In May 2007, Dolphin Discoveries had begun work on the
construction of dolphin pens at Sandy Ground but halted
operations when the approval for the site in that location
was withdrawn. Later that year they were ordered by the High
Court to vacate their location at Meads Bay. In January
2008, they began to construct dolphin pens at Sandy Point
Bay Beach, which is in front of an area previously
designated as a National Park, and in February four dolphins
were moved into those pens.
In reaching her decision on Tuesday May 6th, the Hon.
Justice Janice George-Creque said:
"Despite the lack of ........... licences and permissions
under the Beach Control Act and the Ports, Harbours and
Piers Act, it is not challenged that construction of a
Dolphinarium or a Dolphin Pier has been proceeding apace in
the water forming part of the port and harbour of Blowing
Point and encroaching on the foreshore and floor of the sea
at Sandy Point Beach. It is because of the Dolphinarium's
peculiar location which brings it within the ambit of the
provisions of these Acts quite apart from any other law
which may be applicable thereto. Admittedly, the
construction as being carried out runs afoul of the
provisions of these Acts. This then begs the question: "How
could such activities which attract criminal sanctions, in
the absence of the requisite licences and permissions,
simply be allowed to occur and proceed unabated without the
necessary intervention by the relevant servants or agents of
the Crown?" Yet no steps have been taken to bring such
activities which are being carried out in plain sight to a
halt. Can such a dereliction or abdication of responsibility
be permitted to the detriment of the public interest? I
think not. It is after all in the public interest that the
laws of the land be applied and obeyed. Such is essential
for the good governance in a democratic society.
Accordingly, in such an instance, the Court must step in
with a view to safeguarding the interest of the ordinary
citizen.
Based on all the circumstances as I have set out, I am
satisfied that the granting of interim relief is warranted
to halt the activities being undertaken in admitted
violation of the provisions of the Beach Control Act and the
Ports, Harbours and Piers Act."
The Judge then made the following Order:
"Accordingly, it is ordered as follows:
(1) That all construction of all piers or structures or any
encroachment on the foreshore or floor of the sea in
whatever manner at the Sandy Point Beach or in the waters
forming the Port at Blowing Point by any persons whether by
themselves, their servants or agents, in violation of the
requisite licensing provisions of the Beach Control Act and
the Ports, Harbours and Piers Act cease forthwith until
further order.
(2) The Respondent shall perform all acts and do all things
as may be necessary to ensure compliance with the terms of
this order.
(3) It is further ordered and directed that this order be
served upon Dolphin Fantaseas Anguilla, being a person
appearing to the Court to be directly affected by the making
of this order."
