The revelations by the Bermuda Environmental and Sustainability Taskforce (BEST) about the granting of planning permission to Cabinet Minister Zane DeSilva to build warehouses on environmentally protected land raises grave concerns.
There will on rare occasions be issues where the public interest overrides the requirements of the Development Act. But these decisions should be made judiciously and only after careful consideration.
Because the system was heavily criticised under the United Bermuda Party, it was decided to introduce an independent inspector who could look objectively at appeals and make a recommendation to the Minister. Because the independent inspectors came from overseas, it was expected that they could not be accused of bias or favouritism. The Minister can still ignore the independent inspector, but should have very good reason for doing so.
Mr DeSilva, through a trust of which he is a beneficiary, applied to build three warehouses and other buildings on his Island Construction site at the western end of Devonshire Marsh. But the land is zoned in such a way that the application could not be approved by the DAB, as Mr DeSilva’s architects admitted. An application to overturn the zoning under the 2008 Development Act was turned down by the Tribunal appointed to hear appeals, and that decision was upheld by the then-Environment Minister, Glenn Blakeney.
Nonetheless, Mr DeSilva proceeded with his application and it was turned down, as expected, by the DAB. It was then appealed to the Minister and referred to the Independent Inspector. It was considered carefully by the Inspector, who then recommended the appeal be rejected, giving a plethora of reasons but particularly citing a concern also raised by the DAB and by every single Government department consulted that the information contained in the application and appeal was inadequate and was covered, essentially, by a promise to provide all the detail in the final application, assuming the zoning was overturned in essence, bolting the stable door after the horse was long gone.
One of the more remarkable admissions in the application is that the site as it stands is in breach of the zonings. This was used by Mr DeSilva’s architects to argue that the zoning was incorrect for a site that had been used for industrial purposes for decades. But a different inference can be drawn, namely that under Mr DeSilva’s occupancy of the property, a valuable wetland site has been allowed to deteriorate, despite the existence of the zonings.
If Mr DeSilva were an ordinary private citizen, this would be of some concern, given the sensitivity of the adjacent marsh and the importance of Bermuda’s few remaining wetlands to the Island’s environmental health. But Mr DeSilva is a public figure, an elected official and a member of Cabinet, in which role he is sworn to uphold the laws of Bermuda. He should still be able to pursue his business interests like anyone else, and exercise his right of appeal like anyone else. But it is critical that there should be no hint that he, or any other Cabinet Minister, has been shown any special favour.
So when an Environment Minister rejects the advice of his own Board, his own technical officers, technical officers from other Ministries, his own independent planning inspector and his predecessor as Minister, he needs to have good reasons for doing so. To be sure, Environment Minister Walter Roban was able to apply conditions suggested by the Director of Planning in the event that he did decide to uphold the appeal. But is also clear from the Inspector’s Report that the Director was recommending against such an approach.
Mr Roban simply said he felt the conditions outlined were “more than satisfactory” to afford approval in principle, and that if they were not complied with, then final approval should not be granted. So there is no way of knowing what arguments had persuaded him to reject virtually all of the advice he had been offered, or why he felt the arguments made by Mr DeSilva’s team, which the Inspector had derided, were valid.
What has also raised eyebrows is the fact that Mr Roban did this on November 1, one day before he was moved from Environment to Works & Engineering. Was he simply trying to clear his desk of outstanding issues to afford his successor a clean start? There is no way of knowing. But it is worth noting that the Inspector’s report was submitted on July 22, more than three months earlier, plenty of time, seemingly, for careful consideration to be given.
Finally, there is BEST’s criticism of one Cabinet Minister ruling on another’s application. BEST suggests that in these cases the Minister should simply assign responsibility to the Independent Inspector to avoid the obvious conflict of interest. That seems to be an eminently sensible idea, although in this case it would have led to a different result.