Planning applications related to the Tucker’s Point Special Development Order should be sent back to the Development Applications Board (DAB), according to the Bermuda Environmental Sustainability Taskforce (BEST).

Representatives for the Ministry of Home Affairs argued that the requirements listed in the SDO had been met by the developers. Lawyer Alex Potts, representing the environmental group, told Chief Justice Ian Kawaley that an environmental impact assessment (EIA) should have been carried out before subdivision plans were approved by the board.

Mr Potts argued that, based on comments made during the House of Assembly and Senate debates on the SDO and discussions between the Government and BEST, there had been a substantial legitimate expectation that such an assessment would be carried out before any approval was granted.

“There was nothing that says an EIA is not required,” Mr Potts said. “What we have are repeated assurances that EIAs should and would be carried out.”

Mr Potts also told the court that rather than receive a singular application for the project, the DAB received a series of subdivision applications, dividing the land into smaller parcels, which were later brought together and re-advertised.

While some environmental studies were performed, Mr Potts argued that the studies fell short of an EIA and, together with the piecemeal handling of the applications, effectively hid their cumulative impact. And he said that while the DAB sought input from Ombudsman Arlene Brock, technical officers and the developers in a series of meetings, Mr Potts argued that representatives from the objectors, such as BEST, should have also been included.

Lawyer Benjamin Adamson, representing the Minister of Home Affairs, however, told the court that neither the Bermudian planning policy nor the SDO mandated an EIA and as a result there was no legitimate expectation that such a procedure would be carried out.

Mr Adamson said that the DAB did host several meetings to determine if they had the ability to vacate the SDO and if the environmental studies carried out were sufficient, but said such meetings are usually held in private.

He said that Minister of Environment and Planning, Walter Roban, who tabled the original SDO, had told the House of Assembly that the order had been carefully crafted by technical officers to balance the environmental interests with economic ones so that an EIA was not required.

Mr Adamson said the SDO clearly detailed what was required of the developers in order for approval to be granted.

“The whole point was to bypass the usual requirements,” Mr Adamson said. “Parliament had decided that it should go ahead and therefore the Board doesn’t have to determine the same issue.”

The Tucker’s Point Residential Development (Hamilton and St George’s Parishes) Special Development Order 2011, as tabled in the House of Assembly, was originally intended to allow the resort owners to build an additional 78 private residences and 70 hotel rooms, but it was reduced in scale from 63 acres to 44 acres after the Senate expressed concerns about the impact of the project.

Mr Roban said the success of the five-star resort was vital to the Island’s future, but the United Bermuda Party continued to express concerns, and the then-Shadow Finance Minister Bob Richards called the project a “property development masquerading as a tourism development”.

The Ombudsman subsequently said in a report that the then-Government had acted unlawfully by approving the SDO without first carrying out an EIA.

The resort went into receivership last September, reportedly facing debts of more than $150 million.