Burch takes own counsel on ATVs
A government minister rejected advice from civil servants to block all-terrain vehicle tours on the Railway Trail, a court heard.
The Supreme Court heard yesterday in a civil case that Lieutenant-Colonel David Burch, the public works minister, overruled technical officers from the Department of Parks and licensed tour operator Rudolph Hollis to run ATV tours on sections of the Railway Trail in the West End.
Ben Adamson, the lawyer for the plaintiff Bermuda Environmental Sustainability Taskforce, said that officials had warned that to allow the tours on the Railway Trail, Scaur Hill Fort Park and Hog Bay Park would breach several laws, including some designed to protect the natural environment.
Mr Adamson added that the use of ATVs on the Railway Trail was “unlawful at the time of the decision, and they remain unlawful today”.
He said that the officials had raised “palpable points” about “the safety, illegality, and environmental impact” of the plan. Mr Adamson added that Colonel Burch did not offer any reasons for why he disagreed with the advice.
Permission for the tours was granted under the former One Bermuda Alliance government in 2017.
Mr Adamson said that officials had warned Colonel Burch the tours would breach the Bermuda National Parks Act and the Road Traffic (Western Section of the Railway Path) Order 1955. Charles Richardson, representing the minister, said it was “absurd” to suggest that Colonel Burch had not considered the advice from officials,
He explained: “I think it can be said as a bold headline that the reason why the licence hasn't been granted, in fact, is because the minister wants to make sure that all the crooked roads are made straight so that no one is actually acting illegally.”
Mr Richardson said BEST's legal action was “highly premature”.
Mr Richardson said: “No one has done anything illegal yet ... It's a decision that hasn't been acted on.”
He added: “It's almost like saying I've decided to go outside and cut the lawn and therefore my neighbour can get an injunction on me for noise, when I haven't even started the lawnmower. Absurd.”
Mr Richardson said that Colonel Burch could make a decision to grant a licence but withhold its issue until required legal changes were made.
He added: “That's exactly what's happened here.”
Mr Richardson said that it was not necessary for Colonel Burch “to list every single iota” that he had considered when he made the decision to grant approval.
He added that if Colonel Burch had said he had “considered all the facts” and carried out “due diligence”, that was sufficient “unless my learned friends can show positively that he didn't do that”.
Mr Richardson added that concerns raised by officials were still under consideration.
He insisted that the tours did not represent a major change of use of the Railway Trial.
Colonel Burch announced in the House of Assembly last March that he had granted approval for a “licence to use vehicles on Government of Bermuda Property for a trial period of one year”.
He said that the conditions of the licence would allow for termination if conditions were not adhered to. Mr Richardson emphasised that a permit to operate the tours had not been granted.
Hundreds of objections to the plan were made by members of the public during a consultation period in 2017.
Legislation to introduce the quad bike tours was approved by MPs last July.
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