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Court halts Botanical Gardens construction

The three story water tower in the maintenance yard located in the Botanical Gardens Photo David Skinner

Construction of a maintenance yard at the Botanical Gardens has been halted by an interim injunction from the Supreme Court.

The injunction came as a result of a legal action between the Minister of Public Works and two people who live near the worksite and have claimed the development was “unlawful” and a nuisance.

While lawyers representing the Minister of Public Works attempted to strike out the claims, Chief Justice Ian Kawaley dismissed that application and ruled that the plaintiffs were entitled to an interim injunction preventing further work on the site.

“The defendant has adduced no evidence capable of supporting a finding that he would be prejudiced by delaying the clearly intermittent development process,” the Chief Justice said in a written ruling.

“It is perhaps self-evident that the Department of Parks staff will be prejudiced by a further delay in establishing a proper central working base, but it is entirely unclear what timetable exists (if any) in relation to completion of the proposed works or, indeed, how great that inconvenience will be.

“There is no evidence of any compelling public interests which will be prejudiced if an injunction is granted. There are, on the other hand, wider public interest considerations on the plaintiffs’ side. The proposed development is seemingly actively opposed by roughly 5 per cent of the country’s population (more than 10 per cent of all those who voted in the last election), who have signed a petition.

“It is also a development in relation to a protected area which it is all but admitted obtained planning approval without giving the public the opportunity to comment which is required by the Bermuda National Parks Act.

“In these circumstances the balance of convenience favours granting injunctive relief without requiring the plaintiffs to furnish a cross-undertaking in damages.”

The decision was applauded this morning by Take Back Our Parks (TBOP), a campaign group who had been fighting to have the maintenance yard erected elsewhere.

Jennifer Flood, a spokeswoman for the group, said: “We understand that this is a private case being brought by local residents, given their rights and interests as neighbours.

“It has succeeded in halting the work for now, and the court’s ruling has brought this whole issue to the forefront again as a matter of public interest and concern.”

The plaintiffs, Graham Jack and Susan Armstrong, had sought an injunction halting “unlawful development activities” at the site, along with declarations that the development was unlawful and planning approval for the project had lapsed.

In an affidavit, Mr Jack stated that an application for the development of “169 South Road” was announced not long after he and the other plaintiff purchased the property and, upon discovering the location of the development, filed a belated objection.

However, they did not appeal the Development Application Board’s approval of the project, partially because of the conditions attached to the project, including that in-principle and final planning approval was only valid for two years.

The site was cleared in July 2013 and, while the plaintiffs expressed concerns during a meeting with the Planning Department the next month, they were assured that the water tower on the site “wasn’t going to be one of these big water towers”.

In the wake of the Sage Report and a lack of activity on the site, the plaintiffs said they came to the belief the project was not proceeding.

However, in March 2014, a large prefabricated water tank — which did not comply with the specifications of the plan — was erected on the site. After further meetings, the plaintiffs helped formed TBOP to campaign against the project.

While the plaintiffs launched a legal action against the Ministry of Public Works, lawyers for the ministry argued the claims should be thrown out because the statement of claim did not properly specify what the alleged “nuisance” was.

An affidavit by acting permanent secretary for the Ministry of Public Works, William Francis, denied that the “peace and tranquillity” of the Botanical Gardens would be destroyed and noted that the plaintiffs had not appealed the decision to approve the plan.

In a judgment, dated August 28, Mr Justice Kawaley dismissed the strikeout applications, without prejudice to the defendant’s right to seek better particulars in the plaintiff’s statements of claim, on the condition that the Minister for Planning be added as a defendant unless that Minister signifies his willingness to be bound by any judgments without being formally joined.

Mrs Flood said this morning: “We are delighted that the Chief Justice recognised the size of TBOP’s petition and that he also made a direct reference to the Bermuda National Parks Act, which we feel is being breached by this proposed development.

“We ask for the public’s support in helping us reach our goal of 5,000 signatures for the petition. Coupled with the lack of information forthcoming from our Pati requests, we feel that it is clear that this project has been pushed through regardless of public opinion.

“We hope that the Government will recognise that the Chief Justice’s ruling now provides an opportunity to reconsider the wisdom of this project, both in the public interest, and in the interests of local residents.”