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Tribunal calls for more meaningful dialogue between Planning and objectors

Cover of the Tribunal Report on the Bermuda Plan 2018

A tribunal established to hear objections to the Bermuda Plan 2018 said changes must be made to address concerns about arbitrary decisions.

The Bermuda Plan 2018, which details planning policies and zoning across the island, was tabled in the House of Assembly this month after a public consultation and appeals process.

But the Tribunal Report said more meaningful dialogue was needed between the Department of Planning and objectors to ensure their complaints are heard.

The report said: “A major concern of the tribunal is that full and open dialogue between the Department and objectors does not appear to have taken place during the consultation period.

“There were comments made during the inquiries that the objectors simply had to accept the position of the Department, with no opportunities invited to rebut the Department’s position.”

The tribunal acknowledged that in some cases objectors had failed to put forward any details to demonstrate why the development they wanted to carry out could not be carried out within the established zoning.

However they added that it did not seem appropriate for a property owner to go to the expense of having plans drawn up and submit an application which may be refused by the Development Application’s Board.

The tribunal also raised concerns about the Minister of Home Affairs having the final say in the process.

The report said: “The tribunal believes that the process where the Minister is the sole decision maker after consideration of the recommendations by the Tribunal does not represent due process and leaves many objectors to consider the tribunal process a formality only to lead to an arbitrary decision by the Minister.

“The tribunal therefore recommends that amendments to the legislation are undertaken to enable the tribunal to make the final decisions on planning policy and zoning matters and then allow objectors to appeal those decisions to the Minister, which is consistent with the process of how planning applications are determined.”

The tribunal also recommended more frequent Bermuda Plans, suggesting that the ten-year gap between plans limits flexibility and hampers the ability to adopt new technology.

The report said: “Changes in technology and the impact of climate change suggest that the zonings and related policies should be reviewed on a more frequent basis.

“The exact period should be determined after appropriate consultation with the relevant stakeholders.”

The tribunal further called for policies to be considered first and the zoning matters secondly to avoid zoning decisions being made based on polices that could still change.

The report said: “Depending on the how the cases are presented to the tribunal, some objections may be considered before a related or relevant policy had been finalised.

“This was mitigated to some extent by considering the Tribunal’s decision to hear majority of the policy objections before zoning objections.

“The tribunal recommends that policies should be developed with full input from the stakeholders to permit challenges to the information used to formulate the policies prior to the objections and allow the Minister the opportunity to review and approve the policies.”

Walter Roban, the Minister of Home Affairs, said in the report that he welcomed the recommendations of the tribunal.

He said: “It is the intent to review the legislative process moving forward regarding the development plan process.

“Reviewing the legislative framework aligns with the Department’s current efforts in streamlining the planning process to enable opportunities for fluid changes in order to adapt to today’s rapidly changing environment.”

Mr Roban said 457 submissions were made to the Draft Bermuda Plan during the public consultation process, including 282 objections and 161 counter objections.

He said that of the objections, 50 were withdrawn or deemed invalid and 232 were processed, with 52 per cent of those objections “resolved” by technical officers and the objector.

The tribunal report said the tribunal initially believed that counter objectors had been told in writing when a matter was “resolved” – only to later discover that was rarely the case.

As a result, the tribunal made the decision that counter objectors should be formally notified of an outcome in the same way that objectors are.

The report added that the tribunal also deliberated on a number of “resolved” cases in which the Department and the objector had come to an agreement despite counter objections.

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Published June 22, 2021 at 7:56 am (Updated June 22, 2021 at 7:24 am)

Tribunal calls for more meaningful dialogue between Planning and objectors

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