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Judge sends building plan refusal back to home affairs minister

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Puisne Judge Shade Subair Williams (File photograph)

The minister of home affairs must reconsider a previously rejected planning application, the Supreme Court has ruled.

Jeffery Stirling had applied to build six two-bedroom residential units on a lot on Hallett Crescent in Pembroke, but was turned down by the Development Applications Board because the proposal was too dense under the Bermuda Plan 2008.

Walter Roban, the Minister of Home Affairs, upheld the DAB’s decision in a subsequent appeal, but Mr Stirling took the matter to the Supreme Court and called for the minister’s decision to be quashed.

Peter Sanderson, counsel for Mr Stirling, said that the lot was unusually shaped and there was no separation between the lot and the estate road, intended to create access to the lot.

Mr Sanderson argued that the Bermuda Plan’s policies were based on the total dimensions of the lot, which included land covered with roadways and rights of way.

Under that interpretation, he said the proposal complied with the maximum density requirements and coverage rules in the plan.

Mr Sanderson told the court: “If the area were calculated according to the area of the whole lot, this would allow seven dwelling units.

“If, however, roads and pathways were to be excluded, it would allow a mere two or three dwelling units.”

He also noted that the minister had, in his decision, highlighted arguments that had been conceded by the DAB.

Puisne Judge Shade Subair Williams said the court could not stand by the Minister’s finding that the proposed development was too dense under the Bermuda Plan.

However she added that the minister does have the discretion to refuse the application given the unusual nature of the plot of land.

Mrs Justice Subair Williams said: “At the risk of stating the obvious, to some degree each case is to be judged on its own peculiar facts, notwithstanding the need and importance of a generally uniform and consistent approach to these applications.

“However, in this case, as recognised from the outset of Mr Sanderson’s speech to this court, the lot is most unusually configured. Less than 40 per cent of the lot is in fact developable.

“Against that factual background, I find that it was open to the minister to consider the exercise of his discretionary powers to refuse permission on this basis and to further consider whether a refusal of permission would qualify as a good reason to depart from the general qualifications.”

The judge remitted the decision back to the minister to determine if he wished to use his discretion to reject the application.

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Published July 11, 2022 at 7:53 am (Updated July 11, 2022 at 7:42 am)

Judge sends building plan refusal back to home affairs minister

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