The final version of the special development order for the Fairmont Southampton hotel is now official, but it should be challenged in Parliament.

This SDO allows the owner of the hotel property to build up to 250 tourism and residential units, largely on what has been open space. It comes two years after Walter Roban, then the home affairs minister, approved the scheme despite widespread public opposition.

There are two issues at hand. The first concerns the process by which SDOs are handled under legislation steered through Parliament by Mr Roban in 2021. The second is the scale of the development itself and whether it is necessary or desirable for the island.

SDOs have always been contentious because they create a system in which there is one law for a select few and another for everyone else.

In general, planning laws are what they say they are — the law. They have to be obeyed. There is an appeal process, but in general, what you see is what you get.

However, there is an exception. Major developments which would override zonings can be approved if they are judged to be in the national interest, not via appeal but through a broadbrush SDO. This is not wrong. There will be instances where it is necessary to override existing regulations. In times of war, it may be necessary to build fortifications in a hurry on land zoned for other uses.

The more usual justification for SDOs is for economic reasons. In recent years, they have been usually granted to hotel properties which wish to use some of their land for residential purposes, rather than hotel rooms — or wish to encroach on lands which are zoned for open space.

Tourism, despite its diminished state, remains an essential part of Bermuda’s economy, and there can be no doubt that the closures of hotels such as the Elbow Beach and the Fairmont Southampton have harmed the overall product. Getting those properties open and ensuring they will be viable is in the national interest.

Hotel owners have previously argued that they need a residential product in order to be commercially viable and to generate a rate of return that would attract investment. They have also said they can do this only by using land that hitherto could not be built on.

The minister responsible for planning must decide if these overrides of the law are justified, and this then requires parliamentary approval because it requires a change in the law that Parliament passed.

SDOs have therefore had to be debated by both the House of Assembly and the Senate to enable the change to take place. There have been some fierce debates over the years, notably for the Tucker’s Point resort when it was allowed to rezone tracts of open space for luxury homes. That was a fractious and prolonged debate.

One of the ironies in the present dispute is that it was Mr Roban who brought back the requirement for SDOs to be debated by Parliament in 2011 after it had been dropped for a number of years. Then it was Mr Roban in 2021 who reversed course, making SDOs debatable only by negative resolution, which means consideration by MPs is not automatic.

Typically, negative resolutions are used only for statutory changes that are uncontroversial. Recently, there was one for approval of a new speed gun for the Bermuda Police Service. Politicians have better things to do than debate whether this speed gun is right for Bermuda. So unless there is an MP or senator who has a particular reason to object to this device being used, it will not be debated.

SDOs are different. They are significant changes in law and have required the minister to carry out a rigorous exercise in establishing whether there is a national interest to allowing a developer to do something no one else can.

In 2021, Mr Roban argued that mandatory debate of SDOs unnecessarily lengthened the development process. He also argued that if there were objections, legislators could use the negative-resolution process to bring the subject to the floor of Parliament.

At the time, the One Bermuda Alliance opposed the change, while all three independent senators expressed reservations about it before supporting it.

OBA MP Scott Pearman said in this newspaper: “The OBA believes SDOs must be voted upon by Parliament before taking effect; not presented afterwards as a deal already done. You should, too.”

So far, the OBA has not followed through on this. It should live up to its words from four years ago and force a debate. The public deserve nothing else from their elected representatives on such a crucial issue.

The second question is whether the proposed development is in the national interest.

Gencom, the developer, claims the hotel will not be viable without it. In the SDO application, it says that it will be unable to secure financing if it cannot provide a return to investors — and this is not possible without the additional development.

It has presented estimates that the development will put $1.4 billion into the Bermuda economy over the next 20 years.

Gencom has also tried to allay some concerns. Some buildings were originally going to be six storeys high, but now the tallest will be four storeys. Some areas have been designated as nature reserves and will be preserved. Those changes are welcome.

Nonetheless, the overall scope of the plan is still excessive and will result in the permanent loss of open space. More than 100 objections to the SDO were submitted and more than 4,000 people signed a petition opposing it. The planning department’s own officers and the Development Applications Board said the SDO should not be granted.

Nonetheless, Mr Roban granted it, citing its economic importance to Bermuda. Now his successor, Diallo Rabain, should be made to defend the final SDO in the House of Assembly.

The public deserve nothing less.