The National Trust continued its fight against Government to protect a significant nature reserve threatened by the approval of two landowners' application for a Harbour Road access and address yesterday, in the Court of Appeals.

In November, 1999 the landowners, Keith James and Roger Raynor, submitted a joint application to the Department of Planning to develop a new access road from Harbour Road to their properties after their separate applications were denied .

National Trust lawyer Alan Dunch argued that former Environment, Minister Arthur Hodgson, had no power to vary, amend, or discharge a Section 34 Agreement in the James and Raynor application because the agreement confers no inherent power upon a minister to act upon his own motion or as he sees fit.

This type of agreement is permanent and contains no provision where once the agreement has been entered into it can be changed, he said.

The Section 34 Agreement entered upon in February 1988 by planners and Charlie Chaplain's widow, Lady Oona Chaplin, contained a restrictive covenant stipulating that the land should be permanently protected as a woodland reserve, a condition that would extend to any subsequent owners.

The section 34 Agreement was "imported wholesale" and for whatever reason, Government chose not to adopt the amendment act conferring a minister with the right to amend it, he said.

"It would be simple if legislation allowed a minister to vary agreements but legislation didn't do that."

However, Mr. Dunch offered that if the Minister did have such a power to grant planning permission that his decision was wholly unreasonable in light of the facts:

Lady Chaplain was required to enter the Section 34 Agreement to permanently maintain as a reserve because the woodland area was regarded as being of significant importance to the country;

Future development of the subdivided properties adjacent to the woodland hinged upon the area having a sufficient access - the tribe road from Cedar Hill which the applicants subsequently use;

Any planning approval in the area was subject to the expressed condition that the woodland would not be interfered with along with the condition that the tribe access would be improved;

No less than four applications have been made to develop an access and on each and every occasion the Department of Planning has been opposed and refused them.

Mr. Dunch asserted: "This is a case in which the minister's decision was perverse and no minister acting reasonably would have come to the same decision."

Mr. Dunch noted that independent inspectors appointed by the minister recommended refusals to the development on two separate occasions. He cited memorandums strongly advising the minister against approving the proposed road which would cut through a woodland environment home to endemic species such as mature Bermuda Palmettos, Bermuda Snowberry and Bermuda Madenhair Fern and an important nesting area for Catbirds, Cardinals, and the Bermuda White-eyed Vireos.

In one such memo, then Conservation Officer Dr. David Wingate said he saw absolutely no justification for the road. Dr. Wingate called the application frivolous "and designed only to provide a Harbour Road access and address for two huge upscale mansions on Hillcrest which have already destroyed half of the woodland of the former Chaplain Estate."

In another memo Jeremy Madeiros, a parks superintendent, made a similar recommendation and discredited proposition that since an access road or path may have existed over 20 years ago permission should be given to clear it out.

Other such recommendations were made and even adjacent landowners lodged objection letters.

"Every single person who has dealt with this application has rejected it," Mr. Dunch said. "There has not been one iota of support for all the factual reasons," he said.

He offered that James and Raynor had made no attempt to justify their application but simply wanted a Harbour Road address to increase the value of their property despite knowledge of restrictions to develop the area.

"The minister has wholly disregarded the intent behind those safeguards and has done so if the face of a series of facts that indicates that no support can be given to the application," Mr. Dunch argued.

"I submit to you that the right thinking members of the public when considering all the facts will question, what was the minister thinking? What was going on that led to that decision? ...At the end of the day the right thinking members of the public will say, 'It just makes no sense'."

Mr. Dunch submitted that the appeal should be dismissed, the minister's decision quashed, and the decision to prohibit development upheld.

Government QC Mark Lowe responded that the minister did have power to amend the Section 34 Agreement and was not unreasonable in approving the application. The minister fulfil led the obligation in considering the impact of changing the visual impact of the woodland area and reviewed the facts of the case, he said.

The minister considered the fact that James and Raynor both wanted access a material consideration along with the fact that the existing right of way is too narrow.

"He has been there; he has seen the site," Mr. Lowe said.

It is the minister's point that they don't have a convenient access and it is a matter for him to weigh, he said.

"The weight he gives to them individually or collectively may be different from that of others, give for example the National Trust of Bermuda...

"The minister was making a reasonable exception to the policies before him in the particular circumstances of the case. It is for the applicant to prove the minister disregarded the evidence. He regarded it and disagreed."

He pointed out the minister had made provision for land compensation to be given to replace any of the woodland destroyed.

Although president of the appeal court, Sir James Astwood noted the provision was not stated in the final letter given to the applicants.

Mr. Lowe also argued that a minister obviously had the power to change the agreement if he had the power to enter into one pivoting on the concept that "the greater includes the lesser or there would be no proliferation of these planning acts... the act would be a blimp in planning history and it would not have taken from 1957 to 2003 for the minister to find out he has no power."

Mr. Lowe held the Supreme Court cannot make planning decisions, but if it found that the minister made an error in judgment on the basis of the law, the minister had the right to reconsider his recommendation and make a new one as required by the court.

Lawyer for James and Raynor, Delroy Duncan argued as Mr. Lowe, that the minister had the power to grant their application by amending the Section 34 Agreement.

He briefly recounted the history of the amendment referred to by Mr. Dunch and offered that it afforded ministers in the United Kingdom some intervention in the agreements being made. He pointed out that Section 34 agreements made in the UK took place between owners and planning officials while such agreements made in Bermuda took place between landowners and the minister.

Such an amendment allowed a minister in the UK to prevent landowners and planning officials from entering into arrangements that did not suit the overall planning scheme of the country and such an amendment is not needed here, he said.

Hearings concluded yesterday and the justices will deliver their decision in due course.