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Judicial review rejects Spice Hill orphanage

A controversial decision by former Environment Minister Marc Bean to grant planning permission for a Warwick orphanage has been overturned on appeal.

And environmentalist group BEST — which successfully had the decision revoked through a costly Judicial Review — says the case demonstrates how supposedly strict planning regulations are easily bypassed through “indefensible” decisions by Government Ministers who ignore the “extensive reasoning” of technical experts and planning officials.

The non-governmental organisation has also questioned whether owners ever intended to develop the site off Spice Hill Road, pointing out that it was put up for sale shortly after the highly prised and very valuable planning approval certificate had been granted by Mr Bean.

An entity known only as Spice Hill Farm submitted the original planning application, seeking to build a three-storey dwelling for use as an orphanage, children’s home or seniors’ home on the land.

But in December, 2011 the Development Applications Board turned the scheme down for a slew of technical reasons.

The board noted that the size of the building exceeded the limits allowed for rural development.

It also pointed out that a lack of detail in the submission meant Government experts were unable to carry out a full assessment of whether the design would meet the planning criteria required for a shelter, or how the building might impact the environment.

The development required a driveway and perimeter fencing to be erected through protected woodland reserve.

And the DAB also took a swipe at the developer’s “blatant disregard for the planning process”, noting that two large storage sheds had already been constructed on the site without planning permission or building permits.

But rather than go back to the drawing board, draft fresh plans and resubmit a more detailed application, the developer opted to seek redress directly from Mr Bean.

On January 6, just two weeks after the DAB rejection, the applicant filed a planning appeal with the Minister of the Environment.

The project then appeared to be put on hold for more than ten months, until November 2012 when Mr Bean — who was Environment Minister in the last Progressive Labour Party Government — controversially upheld the appeal, effectively overruling the advice of his technical officers and giving the developer ‘in principle’ planning approval.

Mr Bean made the decision on November 20, less than two weeks after then-Premier Paula Cox had called a general election for December 17. Mr Bean now leads the party in Opposition.

Defending the decision at the time, Mr Bean said he believed the project would be “in the national interest” — even though it was not certain at that time what type of facility the building would ultimately be used for.

But the Bermuda Environmental Sustainability Taskforce (BEST) expressed alarm at Mr Bean’s ruling, saying: “This application was so flawed that it should not have been considered by the DAB, much less reached the Minister’s desk.”

BEST pointed out that alternative vacant brownfield sites were available for development, and questioned why Mr Bean believed that a new care facility could be in the national interest after Government had slashed the budget of children’s foster home charity The Sunshine League, which was forced to shut down in 2011 because of a lack of funding.

Welfare groups also questioned the decision, with the Coalition for the Protection of Children suggesting that Mr Bean’s opinion “belied belief” and that an orphanage would be “a retrogressive step” in child care.

In January, BEST initiated a Judicial Review of the matter and

The Royal Gazette now understands that Mr Bean’s decision was nullified in a ruling by the Chief Justice on March 7 — after Government declined to put forward any argument as to why the Minister’s decision should be upheld.

It is the second time that BEST has successfully fought to have a planning decision by an Environment Minister overturned through a Judicial Review.

In a similar case in 2010, a proposed beach bar on Warwick Long Bay was scrapped after then-Environment Minister Glenn Blakeney failed to explain to the courts why he had given the facility the planning green light.

Last night BEST Chairman Stuart Hayward said he was “pleased” with the outcome of the Judicial Review — but pointed out that it had come at a cost to the taxpayer, and should not have been necessary to begin with. BEST was awarded costs as part of the ruling.

“This is the second time BEST has put time, energy and upfront funds into an effort to have a Minister’s decision reviewed by the Courts,” Mr Hayward said.

“It is also the second time that the Government has not delivered a single word to the Court in defence of the Minister’s appeal decision.

“While BEST is pleased with the Judicial Review outcomes and with being awarded costs, there are two aspects which we would like to bring to the public’s attention.

“BEST’s call for a Judicial Review, and for the Attorney General’s Chambers to discover that the Minister’s decision was indefensible, were both paid for by taxpayers.

“The public’s funds were spent to cover time and effort of lawyers and civil servants to develop cases that were essentially never argued.

“The cases had to be assembled — for BEST to decide to move forward with the Judicial Review, and for the AG to decide not to contest the action — but the Government’s decision to concede without offering a single word to the Court meant that no case was presented and argued and no evidence-based decision was rendered.

“The public paid for the Minister’s error but the Minister, and those who counselled his legally unsupportable decision, never had to answer for their mistake and their unnecessary waste of public funds.

“As the AG chose not to contest the Judicial Review action, there were no legal arguments presented to Court that would have laid out the wisdom or lack of same supporting the Minister’s decision and the soundness of BEST’s decision to pursue a Judicial Review of that decision.

“There were no arguments, no counter arguments, no well-reasoned decision by the Court, no written judgment and no legal precedents to guide future litigants.

“In short, all that money was spent, but the public got less than full value for their money. Two Cabinet Ministers and their advisers escaped censure for their ill-advised decisions, and the public was deprived of the legal discourse and possibly precedent-setting decisions that should have resulted from the money or value they — the public — were forced to invest to research both sides of the argument.”

Mr Bean was appointed Environment Minister in November, 2011 following the resignation of Walter Roban.

Mr Roban quit Cabinet after a storm of protest following his decision to grant planning permission to two projects owned by Ministerial colleagues — and against the advice of his technical officers.

Opposition Leader Marc Bean

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Published April 01, 2013 at 9:00 am (Updated April 01, 2013 at 12:53 am)

Judicial review rejects Spice Hill orphanage

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