Hamilton building extension illegal.

The accusation against Puisne Judge the Hon. Mr. Justice Meerabux was levelled by Solicitor General Mr. Barrie Meade.

Last year, Mr. Justice Meerabux opposed the development by Scarborough Property Holdings. He sided with Bermudiana Road resident Mr. David Barber and his lawyer Mr. Alan Dunch who fought the extension.

And he declared Environment Minister the Hon. Gerald Simons "misdirected himself in law and misapplied the law'' by overturning the Development Application Board's refusal of the two-storey ACE building extension.

The DAB had argued the development exceeded four storeys -- the maximum height allowed under the Bermuda Plan 1992.

The extension boosted the rear part of the ACE building to five storeys.

Yesterday Solicitor General Mr. Barrie Meade and Mr. Wilhelm Bourne, acting for the Environment Minister, began an appeal fight against Mr. Justice Meerabux's ruling.

He told the three-panel Court of Appeal that the Minister had a "wide discretion'' when he heard the appeal by Scarborough against the DAB's refusal. And it had been wrong for the judge to rule Mr. Simons was legally bound by the Bermuda Plan, which was in a draft form at the time of the appeal.

Mr. Meade argued only the DAB had to adhere strictly to the Plan.

The Development and Planning Act 1974 stipulated Mr. Simons was under no such obligation.

The legislation directed Mr. Simons "have regard to'' the Plan -- and "other material matters'', said Mr. Meade.

"The nub of the Minister's case is that the planning statement is aimed at one group only, the DAB. It binds the board only. Once Justice Meerabux came to the conclusion that the development plan was a statutory instrument he did not give adequate consideration to this point.

"The plan itself is aimed and directed at the DAB as required, and not anyone else.'' Mr. Meade said there was "no prohibition on the Minister from departing from the terms of the plan. It's the board which cannot divert from it''.

He stressed the planning statement accompanying the Bermuda Plan outlined the DAB's powers and duties to the Board.

"The Minister is never mentioned in it.'' Mr. Meade said the Bermuda Plan was the Minister's "policy document''.

"The problem with the finding of Justice Meerabux was that the Minister was bound by his own policy by the document. The wording of the plan itself makes it clear it was aimed at the DAB.'' Mr. Meade said it was quite common for legislation to only affect certain persons.

For example, the Road Traffic Act did not affect pedestrians. It only related to drivers of motor vehicles.

"The proposition that a statutory instrument must bind the Minister is palpably incorrect.'' Mr. Meade said there had been contradictory judgments from the Supreme Courts about the powers of the Environment Minister.

A ruling by Puisne Judge the Hon. Mrs. Justice Wade clashed with that by Mr.

Justice Meerabux.

Mr. Meade concluded: "The judge erred in law in his application of rigid rules to the Minister's function of hearing an appeal.

"The application of such rigid rules acted as a fetter and deprived him of the discretion placed on him by Parliament.'' The arguments of Mr. Meade and Mr. Bourne were backed by Mr. Saul Froomkin, lawyer for Scarborough, which is jointly owned by insurance companies ACE and BF&M.

Mr. Froomkin said Mr. Simons had "untrammelled discretion'', and will continue his arguments today.

Mr. Dunch, who has argued Scarborough should tear down the new floors, will follow him.

Among Mr. Barber's objections to the development were that it invaded his privacy -- overlooking his home "Jacaranda'' -- and would generate traffic and noise.