Frangipani Ltd v Calabash Ltd

JurisdictionAntigua and Barbuda
JudgeDrysdale J
Judgment Date24 May 2024
Judgment citation (vLex)[2024] ECSC J0524-1
Docket NumberCLAIM NO: ANUHCV2019/0227
CourtHigh Court (Antigua)
Between:
Frangipani Limited
Claimant
and
Calabash Limited
Defendant

CLAIM NO: ANUHCV2019/0227

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Justin L. Simon K.C. Counsel for the Claimant

Ms. E. Ann Henry K.C. Counsel for the Defendant

Drysdale J
1

This matter concerns a claim in nuisance consequent upon the construction of two groynes.

BACKGROUND
2

The Claimant's case concerns the unauthorized construction of two groynes on the seabed in front of the Defendant's property which the Claimant alleges caused erosion and devaluation of its property. The Defendant denied constructing the two groynes asserting instead that it only built up the existing groynes. As such the Defendant denied that it was liable to the Claimant for any alleged damages.

THE PLEADINGS
The Claim
3

The Claimant is a locally incorporated company and the owner of residential property registered as Parcel: 172 of Block: 41 2595A in the Registration Section: Barnes Hill & Coolidge.

4

The Claimant contends that sometime in 2017 the Defendant illegally and without permission from the Planning and Fisheries Departments constructed two groynes on the seabed extending perpendicular to the beachfront of parcel 174. That accordingly the groynes have produced negative effects resulting in sand erosion and alteration of the shoreline of its parcel. Consequently the Claimant claimed relief in the form of a demolition order of the two groynes, an order directing the removal of all boulders, stones and gravel deposited on the seabed and in the vicinity or in close proximity to their respective parcels, an injunction restraining the Defendant from dredging any sand or other material without permission from the appropriate government official and damages for loss of diminution of sand on the beach frontage.

THE DEFENSE
5

The Defendant is a locally incorporated company which owns the adjacent parcel of land registered as Parcel: 173 of Block: 41 2595 A in the Registration Section: Barnes Hill & Coolidge. The Defendant disputes the Claimant's assertion that it constructed groynes perpendicular to parcel 174. Instead, the Defendant, argues that it merely reinforced a pre-existing groyne that was originally constructed perpendicular to parcel 173, of which it is the registered owner.

6

The Defendant denied that its actions were unlawful and further asserts that even in circumstances, non-compliance with the Physical Planning and/or Fisheries Acts does not automatically make it liable to the Claimant for any relief sought. The Defendant further denied that the groynes caused a negative impact as contended by the Claimant.

7

The Defendant acknowledges that the Claimant requested the removal of the groynes but asserts that the parties jointly agreed to engage an expert to analyse the situation. According to the Defendant, the expert's report does not support the claim made by the Claimant regarding the impact of the groynes.

RECENT DEVELOPMENTS
8

Despite the ongoing dispute, the Defendant applied to the Development Control Authority (DCA) for permission to replenish the groynes. However, the application was denied, and the Defendant was ordered to remove the groynes which order it complied with. Nevertheless, the Defendant maintains its challenge concerning the viability of the relief claim for damages.

THE EVIDENCE
9

Although witness statements were filed for several persons, at trial each party called one witness to give evidence on their behalf. The Claimant's case was supported by evidence from Romolo Bardin whereas for the Defendant its Director, Mr. Stefan Widensohler, gave evidence on its behalf.

The Claimant's Evidence
Romolo Bardin
10

The witness deposed that he is the Managing Director of Delfin Sarl, the holding company belonging to the Del Vecchio family which owns the Claimant. The witness states that he plays a crucial role in managing the affairs of the Del Vecchio family including their assets and business ventures.

11

The witness testified about his presence in Jumby Bay Island, Antigua in 2014, and the state of the properties. Particularly the witness states that there were no groynes on the beach and that both of the parties' properties enjoyed an uninterrupted, sized, sanded and beautiful beachfront. The witness referenced a picture taken by Google Earth in 2014 to provide visual support to his testimony about the state and condition of the beachfront.

12

In early 2018 he was contacted by the Del Vecchios who advised that the Defendant had erected two groynes on the eastern and western seabed of its property in an effort to protect the beachfront. This led to him contacting the Jumby Bay Board seeking clarification on whether permission had been granted for the construction of the groynes as no contact had been made with the Claimant prior to their construction. It was revealed that no permission had been given to the Defendant from the Board or from the Development Control Authority for the construction of the groynes.

13

The witness stated that he had been advised than in 2019 of the gradual erosion of the beachfront due to the construction of the groynes. The erosion became even more pronounced the following year and thereby eliminated the previously existing sandy beach and posed a potential danger to the retention wall.

14

On 8 th December 2020, the DCA recognised that the illegal construction of the two groynes caused significant threats to the environment and the neighbouring properties. The Fisheries Division as well found that the groynes negatively impacted the coastline impeding the normal longshore drift of sediment leading to erosion. Accordingly, the DCA demanded that the two groynes be removed by the Defendant.

15

Following the removal of the two groynes it was observed that the seawater line retreated allowing for sand sediment to be noticed on the western seafront. In December 2020 the Claimant after receiving proper authorization from the DCA took proactive steps to restore the beachfront by importing sand from Barbuda. This has effectively replenished the beachfront and prevented further erosion, maintaining its original sandy nature.

16

Similarly, the Defendant in 2021 obtained permission from the DCA to replenish its beachfront with imported sand. Despite the bans imposed on the Defendant, it was observed that the Defendant again attempted to construct a small groyne by adding rocks to the sand. The Defendant has refused to comply with the Claimant's several requests to remove these rocks.

17

The unlawful actions of the Defendant have caused loss and damage including but not limited to the erosion of the beach and the resultant cost to replenish it and the inability of the Del Vecchio family to enjoy the property.

18

On cross examination the witness admitted that he had only visited Jumby Bay in 2014. Thus, he exclusively relied on photos and information provided by others about the conditions at Jumby Bay to prepare the witness statement.

The Defendant's Evidence
STEFAN WIDEMSOHER
19

The witness deposed that he is the Director of the Defendant which is a family-owned company which owns the property at Jumby Bay. Mr. Widemoser says that although the property is used by his family it is also used as an income generating property for vacationers.

20

The witness states that there were two groyne like structures already in existence when the property was purchased, one on the eastern side close to the beachfront in front of the Claimant's property and the other on the western side and suggests that these structures were part of the natural headland rock formation.

21

The eastward beach connection from the beach in front of the Defendant's property towards Jumby Bay main hotel was compromised to which he attributed the lack of sand and irregular rock supply. As a result, extensive research was undertaken to address the beach issues, including possible trapping sand to secure a nice natural beach. Based on the extensive research it was determined that inter alia DCA approval was not required for groynes outside property borders and the lack of the need for the Claimant's consent as the intention was to enhance by heightening and extending the pre-existing groynes which would have no negative effects on neighbouring beaches.

22

After the passage of two major hurricanes in 2017, protecting the beachfront became even more pressing and the plan to enhance the two groynes was executed in or around September/October 2017. Subsequently in 2018 the Board of Directors of Jumby Bay, of which he was a director, faced a challenge with the Claimant alleging that the Defendant's actions caused complete erosion of the beach in front of the Claimant's property. In response the Board chose to hire Coastal Science & Engineering (hereinafter the experts) to analyse the situation with the beaches in front of the parties' properties and to explore effective alternatives for beach protection.

23

Based on the recommendations of the experts it was agreed between the parties to implement option 1 which involved exchanging existing groynes with submerged breakwaters and adding significant beach nourishment. Sometime later in 2019 however the Claimant demanded that the Defendant demolish the groynes and stated that consideration of option 1 was contingent upon this.

24

Notwithstanding a series of communication between the parties the Claimant remained insistent that the groynes be demolished otherwise legal action would be pursued. Subsequently the experts produced a Summary Report, Beach Assessment and Restoration which also contained Recommendations for Lots J-0 (beach in front of the Claimant's property) and J-1 (beach in front of the Defendant's property) and that report was forwarded to the Claimant. Despite this, the present legal action was commenced a few weeks later and highlighted the Preliminary Report from experts...

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