Westin loses court case about noise pollution

POSTED: 10/8/12 1:56 PM

St. Maarten – The Babitbay Beach Development Corporation N.V., the company that operates the Westin Hotel in Dawn Beach, has so far forfeited $39,500 in penalties for not living up to an April 13 court ruling that ordered it to take measures to bring noise pollution caused to neighborhood resident Michael Roger by its sewage treatment plant under control. An attempt by the corporation to suspend the verdict’s execution failed earlier this month.

The trouble between the Westin Hotel and its neighbors has a long history. Already on June 15, ordered an expert report about the noise pollution caused by the hotel’s sewage treatment plant, but when that report was not forthcoming Roger contracted Civil environmental and geotechnical engineer (Cege) from Curacao to do sound level tests in the vicinity of his home. The report from this company states that during all measurements it took in October 2011 the sound levels exceeded the levels permitted in the hotel’s hindrance permit. Other tests performed by bailiff Patrick confirmed these findings.

Roger, who was represented by attorney mr. Cor Merx, lives about 80 meters from the sewage treatment plant. Court documents show that the installation makes a deafening sound and that this even hinders Rogers when he has all doors and windows closed.
Westin’s attorney Mr. Maarten le Poole noted that “not every violation of the hindrance permit means that the installation produces unlawful hindrance.”
But Judge mr. Diederik Thierry ruled that the Cege-report made sufficiently plausible that the Westin violates the hindrance permit. “The report’s conclusion is unmistakable.”
Roger bought his house twenty years ago, before the Westin was even built. The hotel opened in 2006. The court considered the story Roger told during the hearing plausible. He said that he lives with his hurricane shutters closed because otherwise the noise is unbearable, that he moved his terrace to the back of his house and that one of his kids had to move to another bed room to be able to sleep.
The court held it against the Westin that it did not send a representative to the court hearing to present an alternative view on the situation. “That makes it sufficiently clear that the Westin even after it received the Cege-report does not really care about the noise pollution.”
The court ordered the Westin to pay expenditures to Roger totaling $4,145.65l to take measures within four weeks to bring the sewage plant’s noise level within the limits established in its hindrance permit and to pay $500 for each day it does not abide by the court ruling.

In September the Westin filed a lawsuit against Roger demanding that he stops the execution of the April 13 court ruling. Roger had put a lien on the Westin’s bank account at the Scotiabank to secure $39,500 in penalties. The Westin demanded in summary proceedings to reduce the penalty to zero and to lift the lien on its bank account.
The hotel’s attorney mr. Wim van Sambeek told the court that it had built a structure around the sewage treatment plant and that the installation no longer violated the sound levels established in its hindrance permit. The hotel also stated that it makes sure the installation is switched off in the evening.

Judge Mr. Coen Luijks ruled however that Roger had contested Westin’s claims with another Cege-report that shows that the installation is still violating the maximum noise levels. There is also a report from bailiff Patrick that confirms the finding in the Cege-report. from video-footage submitted by Roger it appeared that the sound levels reached between 80 and 90 decibel – far above the permitted 50 decibel.
“The court is of the opinion that the Westin has insufficiently demonstrated that it abides by the (April 13) court ruling,” Judge Luijks wrote in his verdict.
The court rejected the Westin’s demands to freeze the execution of the April 13 verdict and to lift the lien. It also rejected the request to mitigate the penalty.
This is the second time within a week that the Westin gets court-related publicity. Last week, SHTA-President and Princess Heights manager Emil Lee won a court case against the hotel that had banned him from its premises because parties are involved in lawsuits about noise pollution caused by the Westin’s generator and its cooling towers.

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