Environmentalists have conceded defeat in the battle over the construction of an access road through the Chaplin Estate in Warwick.

And they now say that agreements reached between landlords and Government not to develop open spaces ?no longer offer long term protection?.

Government this month amended a protection order preserving the land on a hillside overlooking Harbour Road to allow an access road to be cut through the property. Work on the road began last week.

The work marks the end of a long battle to stop the the road, which environmentalists thought was impossible under an agreement signed between Government and the former owner, Hollywood legend Charlie Chaplin?s widow Lady Oona Chaplin, in which she agreed never to develop the open space under what is known as a section 34 agreement.

On February 8, Environment Minister Neletha Butterfield and her Permanent Secretary Wayne Carey signed a supplemental agreement with landowners Roger Raynor and Keith James to amend the protection order made by Lady Chaplin on February 15, 1987.

In the new agreement, Mr. Raynor and Mr. James agreed to preserve woodland ?outlined in green on the plan?, but allowing the 300-foot long access road from Harbour Road to the Tribe Road above.

Bermuda National Trust director Steve Conway called it the final act in the lost battle for the Chaplin Estate.

?The Bermuda National Trust has seen that the owners have started excavating through the Woodland Reserve on the Chaplin Estate on Harbour Road, which was protected by the section 34 agreement,? Mr. Conway said.

?Reluctantly the National Trust has accepted this as a battle lost for some time, but the final act came after we were advised by the Department of Planning that the Minister of the Environment has amended the section 34 agreement protecting this wooded hillside.?

The dispute began in 2000 when then-Environment Minister Arthur Hodgson approved an amendment to the section 34 agreement after the Development Applications Board had turned down an application for the access road four times.

Mr. Conway said the matter went through a lengthy appeal process through the Supreme Court in January 2003 and the Court of Appeal in June 2003 which determined that the Minister of the Environment and the owner of a property ? as parties to the section 34 protection agreement? had the right to undo it.

?The National Trust had to accept this court decision and the indication that permanent section 34 agreements do not now offer secure long term protection,? Mr. Conway said.

?In this specific case we understand that the current Minister of the Environment had a unique opportunity to deny this request to change this section 34 ? although the appeal case gave her the right to make changes to it.?

He said the issue with the Chaplin case was not just the question of a road cutting through Woodland Reserve and a scar on the hillside facing the harbour but the precedent that had been set for other section 34 agreements to be changed or undone completely.

?The ramifications of this are that it has caused the National Trust to look at other means to protect land in private ownership with three-way agreements and we think it may have given momentum to the successful Buy Back Bermuda Campaign for acquisition of Somerset Long Bay which ensures that land is protected by placing it under the wing of the National Trust and the Audubon Society.?

Mr. Raynor and Mr. James first sought final Planning approval for a new guest access to detached houses on lots one and two of the Warwick estate on November 9, 1999.

Reasons the roadway were refused included that the proposed access would result in the removal of significant vegetation, the DAB said in 2000.

?Creation of the new access would cause fragmentation of the Woodland Reserve into sections,? it said.

?Woodland fragmentation is a primary cause of woodland degradation and loss of carrying capacity for woodland bird species.

It said woodland reserve and open space had significant aesthetic value to Bermuda.

Despite Planning?s concerns, Mr. Hodgson allowed an appeal by Mr. Raynor and Mr. James in July 31, 2000 ? which sparked the long legal battle.

And Planning?s technical officers said developing an access through land zoned Woodland Reserve and open space and protected by a section 34 ? in which owners agreed ?not to undertake, suffer, or permit any act or development within this area which would result in the diminution or destruction of the woodland? ? was contrary to the considerations that applied to environmentally sensitive areas.