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Hargun overrules Burch on ATVs

Lieutenant-Colonel David Burch, the public works minister (File photograph by Blaire Simmons)

The courts made the right decision yesterday when it ruled against the Government in a row over all-terrain vehicle tours in sensitive areas, the head of the environmental charity that brought the case said last night.

Kim Smith, the executive director of Bermuda Environmental Sustainability Taskforce, said: “BEST is pleased that the decision of the Chief Justice emphasises the need for full and proper evaluation of development proposals by way of the established planning processes.”

She was speaking after Chief Justice Narinder Hargun quashed a decision to allow ATV tours in the West End.

The judge said that Lieutenant-Colonel David Burch, the public works minister, had “assumed that planning permission was not required” when he granted approval for the tours on the Railway Trail, Fort Scaur Park and Hog Bay Park.

He added: “In my judgment that was an erroneous assumption and amounted to an error of law.

“The minister, as the decision-maker, is required to properly address himself in relation to relevant legal issues and failure to do so will result in the decision made being set aside on an application for a judicial review.

“The minister’s decision announced on March 16, 2018, in relation to Mr Hollis’ proposal to operate ATV tours is hereby quashed.”

BEST’s legal costs will be covered by the Government.

Ms Smith said: “Our park lands are for the enjoyment and benefit of locals and visitors alike and must be protected for current and future generations.

“While BEST supports entrepreneurial initiatives, we are not satisfied that there is an overriding public interest in allowing ATV tours that outweigh the potential harm and damage to our national parks.”

Ms Smith added: “The decision highlights the need to attain planning permission for significant development proposals such as this. Potential impacts on our environment must be evaluated prior to permissions being granted. Best supports this.”

Bill Zuill, the executive director of the Bermuda National Trust, also welcomed the Chief Justice’s decision.

Mr Zuill said that BNT joined the case brought by BEST “because we believed that granting approval of the tours without the necessary due diligence ... would set an extremely dangerous precedent and threat to our national parks”.

He said that for a project as “significant and as complex” as the ATV tours “planning permission is essential”.

Mr Zuill added: “We are happy that the Chief Justice agreed.”

He said that the BNT supported sustainable growth of both eco and cultural tourism.

Mr Zuill added: “If eco-tourism is to grow in Bermuda, it must be done in a way that does not harm the very environment it is seeking to promote to our visitors.”

Colonel Burch said yesterday: “I have no comment on the matter at this time.”

The Supreme Court heard earlier this month that Colonel Burch overruled officials from the Department of Parks and granted permission to operator Rudolph Hollis to run the ATV tours.

Ben Adamson, the lawyer for BEST, said that officials had warned Colonel Burch the tours would breach the Bermuda National Parks Act and the Road Traffic (Western Section of the Railway Path) Order 1955.

Charles Richardson, representing the minister, said BEST’s legal action was “highly premature” and that Colonel Burch could make a decision to grant a licence but not issue it until the needed legal changes were made. Colonel Burch announced in the House of Assembly last March that he had granted approval for a “licence to use vehicles on Government of Bermuda Property for a trial period of one year”.

He said that the licence would allow for termination if conditions were not adhered to.

Hundreds of objections to the plan were made by members of the public during a consultation period in 2017.