BEST welcomes ruling on Tucker’s Point SDO
Appeals against a series of applications under the controversial Tucker’s Point Special Development Order (SDO) will be put back before the Minister for reconsideration as a result of a Supreme Court ruling.
However, Chief Justice Ian Kawaley found that the SDO itself was valid, despite its lack of requirements for an Environmental Impact Assessment (EIA).
Bermuda Environmental Sustainability Taskforce (BEST) chairman Stuart Hayward this afternoon welcomed the judgement, saying: “It means that the decision of the Minister on our appeal of the Development Applications Board (DAB) decision — his decision has now been quashed. We will have to look more closely at the judgement but, at first blush, it’s a decision that we are very happy with because it supports our contention that the Minister was incorrect in upholding the DAB’s decision.”
A spokeswoman for the Ministry of Home Affairs said Minister Michael Fahy acknowledged the Chief Justice’s ruling.
The 2011 Tucker’s Point SDO granted Castle Harbour Ltd in principle planning approval for an expansion of the Tucker’s Point Resort. The expansion was set to include multiple residential units, which would be sold to secure the struggling resort’s coffers, but the plans came under fire from groups such as BEST who objected to developing the historically and ecologically important land.
Several subdivision applications were submitted in connection to the property, all of which BEST objected to on grounds including that no development should be approved without an EIA and a related Environmental Impact Statement.
The DAB approved the applications and, while BEST praised the board for attempting to “shore up deficiencies in the SDO with additional conditions”, the organisation launched an appeal to the Minister.
The Minister dismissed the appeal but subsequently conceded that his decision was liable to be set aside on the grounds of natural justice and offered to withdraw it.
BEST continued with its legal action against the Minister, arguing that an EIA should have been carried out before the applications were approved by the DAB, and that the SDO itself was invalid.
In his written judgement, Chief Justice Ian Kawaley wrote that there is a discretionary requirement for conducting an EIA before granting planning approval, but in the case of projects likely to have a significant environmental impact, the assessment technique should be used as a general rule.
“Because at the international treaty level Bermuda has committed to use EIAs, and their use is so widely accepted as to form a general principle of international law, clear statutory language would have been required to justify construing the SDO as excluding the need for an EIA at any stage of the development project,” he wrote.
“Clearly the Minister adopted the SDO without first conducting a comprehensive or full EIA. But the conditions upon which ‘in principle’ approvals were granted, particularly the specification of various studies, neither expressly nor by necessary implication, negatived the general statutory duty of the DAB to obtain the best quality information to inform its decisions under the act, as read with the SDO.
“The DAB and the Minister erred in law by construing the SDO as excluding the option of requiring information in support of the applications to be presented in a manner which was not spelt out in the SDO. I also find that the SDO is valid and is not liable to be set aside on the grounds that either it was substantively ultra vires the Act or procedurally invalid.”
BEST sought for the DAB’s approval for the applications be quashed, but the Chief Justice wrote: “While BEST’s complaints about the fairness of the process before the DAB were justified, it was far from clear that a different decision would have been reached by the DAB had it proceeded more fairly and on a correct view of the law.
“Moreover, whether or not there should be an EIA and what form it should take are heavily policy-laden questions which the statutory scheme envisages will be resolved by the Minister and not this court.
“I accordingly find that BEST’s appeals against the DAB decisions should be remitted to the Minister for rehearing, ideally by a person appointed by him under the provisions of the act.”
The Bermuda Environmental Sustainability Taskforce (BEST) won a precedent-setting ruling in the Supreme Court by being granted a Protective Costs Order (PCO).
The order, granted by Chief Justice Ian Kawaley, meant that the organisation would not be ordered to pay the Minister of Home Affair’s legal costs if it lost its appeal in connection to the Tucker’s Point Special Development Order (SDO)
However, under the order BEST would be entitled to no more than $75,000 in costs if they won the appeal and the Minister was ordered to pay costs.
While such orders have been granted in other jurisdictions, the Chief Justice wrote in his ruling that there is no known precedent locally.
BEST had sought a PCO, arguing that it would be in the public interest to protect the non-profit organisation, which had no private interest at stake in the matter, from the usual costs associated with losing a legal action.
The Chief Justice found five points of public interest raised in the appeal, including the right of organisations such as BEST and the courts to scrutinise the implementation of SDOs, the lawful construction of SDOs and the impact of international instruments such as the Environment Charter on the interpretation of SDOs.
“It is clearly in the public interest that these issues be determined by the Court with a view to providing guidance for future planning cases with a public interest dimension to them, and also with a view to reducing the need for similar appeals by objectors like BEST in the future,” he wrote.
He also found that there was a risk that BEST may discontinue proceedings if a PCO was not granted and, given the financial resources of the parties involved and likely costs, it was fair and reasonable to make a PCO provided that a cost-capping order was also made.
