The Bermuda Environmental Sustainability Taskforce has announced it will be seeking legal advice after an appeal against final planning approval for the South Basin development was dismissed.

The group had appealed against the decision to grant final approval for the proposed 11-acre land reclamation on the Dockyard site, which is intended to house the event village for the 35th America’s Cup and later the Department of Marine and Ports.

According to planning documents, planning inspector Mark Hornell recommended that the Development Applications Board’s (DAB) decision be upheld and this was approved by Home Affairs Minister Michael Fahy.

Last night, BEST president Stuart Hayward said the group is consulting with its legal advisers and considering all remaining avenues available to have the proposal revised “so as to leave a legacy that will do credit to Bermuda and to the America’s Cup”.

The group had hoped to have the end-use portion of the proposal decoupled from the rest of the development.

“This would have provided for public consultation and diligence prior to the end-uses being determined,” Mr Hayward said.

In his report, Mr Hornell stated: “The Board’s decision to approve the filling of 11.1 acres of South Basin and the end-uses, even if not made clear in either the Board report or the minutes, is moot: the decision was already made by virtue of Parliament’s approval of July 18, 2014, under the Land Reclamation Act 1964.”

Mr Hornell said Parliament considered and approved the land reclamation agreement between Wedco and the Government of Bermuda, for the purpose of developing a world-class marina and consolidated facility for the Department of Marine and Ports.

He continued: “Clearly Parliament had already taken the fundamental decision to approve the land reclamation and the end-use in concept, leaving for the Board only questions regarding the physical development of the reclaimed site itself and matters of mitigation attendant upon the physical works undertaken to complete the land reclamation and subsequent developments.”

The conditions established in the DAB’s decision to mitigate the impacts of the land reclamation, he added, and the conditions and process established to guide further consideration the next phases of development, “appear reasonable with Planning Statement policy guidance”.

Earlier this year, BEST appealed against the decision to grant final approval for the landfill, the use of the area for the ACBDA event village and for the Department of Marine and Ports operations, a commercial marine facility and marina.

It listed six grounds of appeal, including that the environmental impact study was flawed and the Department of Planning failed to convey certain information to the DAB.

The organisation also said the department failed to include key recommendations from Bermuda Environmental Consulting, the applicant’s designated environmental consultants, or the concerns of government agency consultants including the Departments of Conservation Services and Environmental Protection.

Mr Hornell said that in the absence of Parliament’s fundamental approval he would agree with BEST that the “information and the quality of analysis undertaken and presented, provided an insufficient basis to enable the Board to reach a defensible decision on final approval for the proposed interim and end uses”.

According to Mr Hornell, while the Department of Planning asserted the Bermuda Plan 2008 Planning Statement is silent on development schemes involving land reclamation, it provides clear statements about the importance of protecting and conserving areas and features of biological and ecological significance along coastlines and in marine environments.

“While the Department of Planning assert interim and end-uses are acceptable for the proposed reclaimed land, but does not, in my view, present a comprehensive planning analysis that provides a compelling rationale to overcome the goals of the Planning Statement with respect to protecting and conserving the marine environment,” Mr Hornell said.

He added that there was also no comprehensive analysis that considers the need for the proposed interim and end-uses within the context of an analysis of the Department of Marine and Ports space and operational needs, or a market analysis of forecast demand for commercial marine and marina space.

There was also no comparative evaluation of alternative locations, nor an assessment of the scale and fill site needed to accommodate the proposed uses.

In a letter dated July 9, Sen Fahy agreed with the recommendation made by Mr Hornell and granted planning permission for the proposal, subject to the conditions listed in the DAB’s April decision letter.