A High Court judge permanently halted a private developer’s construction at Joe’s River in Bathsheba, ruling in favour of local residents after years of legal wrangling over public access to one of St Joseph’s most cherished natural sites.
Justice Dr H. Patrick Wells issued the order on Thursday in the dispute between developer Richard Hains of Ullswater Investments Limited and Joe’s River folk over generations of access to the area.
In his 42-page written judgment, Justice Wells also ordered the immediate dismantling and removal of all existing structures from the area.
“Justice has been served and my constituents are overjoyed,” said St Joseph MP Dale Marshall, the attorney general.
The suit, brought by residents Victor Lewis and Christopher Oliver, sought to enforce what they believe is a prescriptive right of way located on the defendant’s land leading to the Joe’s River basin below the Tenby footbridge.
The judge noted that it also leads to a concrete structure or monument known as the Teacup and Saucer, a recreational attraction on the defendant’s land, which is located on the coastal ridge overlooking the St Joseph coastline and the Atlantic Ocean. The area surrounding the Teacup and Saucer is [therefore] considered a lookout spot, the judge added.
He stated that the statutory basis for the claim is subsection 35(2) of the Limitation and Prescription Act, which provides: “Where such way or other matter has been so enjoyed for the full period of 40 years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.”
Justice Wells explained that the central remedy sought by the claimants is: “An injunction ordering the defendant to remove the concrete stone walls, restraining the defendant, by itself or by its servants or agents, or otherwise howsoever, from the repetition or continuance of the acts … complained of, or of similar acts [of] obstructions to said public right of way/right to pass and repass.
“Judgment is [therefore] entered for the claimants against the defendant.”
The judge further declared: “Effective immediately, and in perpetuity, the court declares that there is an absolute and indefeasible prescriptive public right of way at the southern end of the footbridge at Tenby, Joe’s River, St Joseph [facing the direction of Bathsheba], which goes both east and west [left and right] into the Joe’s River basin, and includes the Joe’s River basin in the immediate environs of the Tenby footbridge; the path leading up to the teacup and saucer concrete monument; and the area immediately surrounding the monument.”
He also ordered that “the defendant is permanently restrained from causing or permitting, whether by itself, its agents and/or its servants, the erecting of any obstruction of whatsoever kind, including but not limited to concrete walls, anywhere in the declared prescriptive public right of way identified in the locations above.”
Justice Wells ruled that “any structure of whatsoever kind, which has been erected in the path of the prescriptive public right of way described and declared in [the said locations previously mentioned], by the defendant, its agents and/or servants, shall be dismantled and removed immediately by the defendant.”
The claimants were also awarded costs against the defendant, to be assessed if not agreed, certified for two counsel.
Responding to the judgment, Marshall said: “I cannot contain my delight at the decision of the court in this matter. The rights of the residents of Bathsheba have been vindicated; and what is more remarkable is the fact that the case was only heard last week and today we have in our hands an extensive and well-delivered decision.”
“I have no doubt that the claimant will appeal, and that is his right; but all of us are happy that the small man has been able to stand up to might and wealth, and claim for themselves for all time, a right that generations have enjoyed to come and go to Joe’s River as they please from time immemorial.”
The attorney general expressed gratitude to attorney-at-law Senator Gregory Nicholls and his team for the “hard” work they put in.
“The road was not always smooth, but they have done an excellent job in representing my constituents in this case,” Marshall said.
Nicholls told Barbados TODAY he is not surprised at the court’s judgment because, according to him, the law is clear that once a right of way has been in existence for a period of time, there is nothing the landowner can do to defeat that right of way.
“So, the application of the law to the acts of this case by the court, follows the legal arguments that we presented, and we are not, in any way, surprised by the decision of the court. We were always fortified in our case that the developer attempted to go down to Joe’s River, build walls at the end of Tenby footbridge to prevent access to the river basin, and then also to access the ‘teacup’ and ‘saucer.’ That was the basis on which the court originally granted us the injunction to prevent the construction of those walls.”
“So, our case did not change materially from the beginning when the injunction was granted to when judgment was handed down today.”
“This is a vindication of Victor Lewis and Christopher Oliver, who brought this case to prevent an injustice… to prevent what we would call, communal sacrilege in respect of the inability to use the river, and access the river basin from the immediate access points coming from Cattlewash to Bathsheba. When you leave the Tenby footbridge, those pathways would have been blocked permanently.”
While he could not say whether the developer has indicated any intention to appeal the court’s decision, Nicholls said it is his legal right to do so.
But he was adamant that he and his team are ready and prepared to deal with any such challenge.
Neither Faye Finisterre, lead attorney for the defendant, nor her associates, could be reached to comment.
emmanueljoseph@barbadostoday.bb
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