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Withdraw special development order changes, says BEST

Environmentalists fear that changes to the way special development orders are approved could pave the way for mass development of real estate around the the Fairmont Southampton property. (Photograph by Akil Simmons)

Changes to the way Special Development Orders are granted could pave the way for a mass sell-off of land for real estate development at the Fairmont Southampton, an environmental group fears.

Yesterday the Bermuda Environmental Sustainability Taskforce (BEST) called on government to withdraw amendments to the Planning Act tabled in Parliament last week.

In a statement, BEST said: “Under these Amendments, the Government will have the ability to approve future Special Development Orders (SDOs) and Emergency Development Orders by negative resolution.

“It is understood that this will allow the Minister and Government a possible way to avoid having SDOs tabled and debated in the House before coming into effect.

“It should be noted that this part of the Planning Act was amended in 2011 by the Government to require a positive resolution. An Act brought forward by positive resolution must be tabled, debated and passed before coming into law, whereas a negative resolution does not.

“BEST strongly urges the Government to withdraw this bill.”

BEST noted that Walter Roban, the home affairs minister who tabled the amendments, was also the minister responsible when the 2011 amendment was tabled.

“He eloquently stated at that time that the amendment would, ‘clarify that a Special Development Order is a statutory instrument and thus subject to Parliamentary scrutiny, which would allow for greater transparency and openness of process … Further, it is proposed that the appropriate scrutiny should be via affirmative resolution procedure, thereby enabling the legislature to fully consider and debate all the permissions and conditions to be attached to a Special Development Order’.

“At the second reading of the Amendments, the Minister added that ‘This will ensure transparency of the decision-making process and the ability for Parliament, the Legislature, and the public to comment and openly debate such orders.’

“What has changed since 2011?”

Walter Roban, the home affairs minister, insisted the Development and Planning Amendment Act 2021 sets a higher level of oversight on special development orders.

“Right now, public consultation is discretionary,” Mr Roban said on Thursday. “This legislation is making it mandatory, as well as having a proper environmental analysis done. To me, it’s a higher threshold.”

Mr Roban said the island was in “a different economic environment” since parliamentary oversight of SDOs was brought into law in 2011.

“We appreciate the value of public consultation even more.

“International best practice is to afford consultation and there has been substantial case law in the courts which supports going in this particular direction.”

Kim Smith, the executive director of BEST, said Mr Roban already had a record of overturn Development Applications Board and planning inspectors’ decisions in order to approve planning applications “even when those applications are not in our national interest”.

She said: “We actually would like to see that power removed from the ministerial role, except in the case of a national emergency. With this proposed new amendment, the Minister’s power would be greater, as future SDOs will not necessarily come before the House prior to becoming law.

“Any chance for debate may not occur until the Bill is tabled which can be ‘as soon as practicable’ (as stipulated in the Statutory Instruments Act 1977). That could in fact be years later.”

Ms Smith said that the amendments would weaken an already flawed process.

She said: “We just have to look at the proposed scale and location of the new St Regis development, built directly on what had been one of the most photographed, historic beaches in Bermuda, to see an SDO granted that gave way too much away.

“We are concerned that future SDOs will now receive less review and debate. Of imminent concern is the Fairmont Southampton.

“We believe that the owners – Gencom, the same owners as Tucker’s Point – have commissioned an environmental study of that property. Therefore we fear it is highly probable that a new SDO will be applied for in near the future.

“The Fairmont Southampton SDO of 2009, which was controversial at the time, granted the then-owners rights to develop 130 fractional and residential villas.

“In 2013 during Phase One of that development BEST cautioned that the development ‘is morphing from a tourist facility into a real estate agency and is selling off its property’.

“While, fortunately, that did not largely come to pass, we remain deeply concerned about the future of that property, based on what has occurred at Tucker’s Point.”

She added: “Though we do not know the details, it is possible that a new SDO will permit the property owners to sell off a significant portion of their property for high density residential development.

“In 2006, the original proposal was to eliminate much of the golf course and build condominiums on that land. In that case, after much opposition, the golf course was saved. If Gencom proceeds to request a SDO what will be proposed? Will the golf course remain? Will the hotel itself remain?

“We will have to wait and see, but these are major decisions that should not sidestep a full debate in the Houses of Parliament as that allows for “greater transparency and openness of process”. Therefore, we would like to see the Amendments to the Planning Act 2021 withdrawn.”

BEST urged the public to oppose the changes, saying: “Bermudians must have a say before the Government is allowed to ‘pave over paradise’!”

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Published July 10, 2021 at 8:00 am (Updated July 10, 2021 at 7:51 am)

Withdraw special development order changes, says BEST

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