BEST loses appeal against road construction

  • The Caroline Bay site (Photograph by Simon Jones)

    The Caroline Bay site (Photograph by Simon Jones)

An environmental charity has lost a legal battle to halt road construction at the site of a new hotel in the West End.

Caroline Bay Ltd won conditional planning permission to build a road across farmland to the site of the future Caroline Bay resort at Morgan’s Point.

The Bermuda Environmental Sustainability Taskforce launched an appeal against that decision and argued that former environment minister Sylvan Richards had acted beyond his powers.

Chief Justice Ian Kawaley dismissed the appeal and found that the minister had acted lawfully in allowing the application.

Mr Justice Kawaley said in a written judgment: “At the end of the day, the pivotal finding of this court has been that the Development and Planning Act 1974 permits the minister to override the environmental protection policies embodied in the Bermuda Plan 2008.

“The rationale for this legal conclusion is that they are the minister’s own policies.

“Should the minister’s wings be clipped and a positive legislative presumption in favour of conservation be introduced into the Act? That is a matter for Parliament.

“The most the court can say is that the minister acted lawfully and with some degree of environmental sensitivity, in granting the conditional permission that he did, following the advice of the planning inspector.”

In 2015, Caroline Bay Ltd applied for permission to build the road from Middle Road to Morgan’s Point, passing over Glebe land, the Railway Trail and a section of land allocated for farming.

The first application was refused in January 2016 by then minister Michael Fahy, who said that insufficient information had been provided about the impact on traffic or the farmland.

The developer subsequently filed a revised application, supported by a traffic impact study, a road location analysis, a stakeholder consultation plan and letters of support from nearby businesses and a tenant farmer.

The application also set aside 2.2 acres of property for agriculture, which resulted in an increase in farmable land.

BEST, the Bermuda National Trust and the Bermuda Farmers’ Association all filed objections against the plan and complained about the fragmentation of farmland.

The Development Applications Board rejected the plan and said: “It is not considered to be good planning, best agricultural practice, or in the spirit of sustainable development and the Bermuda Plan 2008 to approve a new road through a valuable, cultivated agricultural field to accommodate a future development that may or may not materialise ten to 12 years from now.

“This new access road is only needed to accommodate Phase 2 of the Morgan’s Point development. The proposal for this new access road should be reconsidered at the time of assessing a Phase 2 proposal.”

The developer launched an appeal against the decision and argued the road was designed to serve all phases of development.

A planning inspector examined the application and recommended planning permission for the road should be granted with conditions.

Mr Richards, who became Minister for the Environment that February, approved the application under the conditions recommended by the report.

Mr Justice Kawaley said that the “basic thesis” of BEST’s appeal was that the minister did not have the power to “displace the environmental protection” presumed in legislation in deference to other economic or policy issues.

The Chief Justice said in his conclusion: “The minister was entitled to depart from the Bermuda Plan 2008, but did so because the developer took meaningful steps to justify the incursion on the farmland through carrying out, inter alia, a traffic study and making 2.2 acres of its land available for agricultural purposes.

“The minister crucially accepted the advice of an independent planning inspector. This advice did not just take into account the realities of the fact that the developer had received in-principle permission to develop Morgan’s Point through an Act of Parliament.

“The inspector also recommended conditions which the minister imposed. These were clearly designed to mitigate the adverse environmental impact that the access road would inevitably have on the protected land.”

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Published Jan 5, 2018 at 8:00 am (Updated Jan 5, 2018 at 7:18 am)

BEST loses appeal against road construction

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