The National Trust?s decision to withdraw its appeal to the Privy Council to stop a road project in the Chaplin Estate, Warwick can only have been taken with reluctance.

At the heart of the appeal is the status of section 34 covenants under the Bermuda Development Plan Act, which are supposed to preserve open space on perpetuity.

The case arose after former Environment Minister Arthur Hodgson granted permission for an access road at the Chaplin Estate in Warwick in 2000.

The National Trust argued this did not take into account the covenant protecting important woodland and habitat. But the Court of Appeal ruled the contention that Section 34 of the Planning Act endured in perpetuity must be rejected.

In their judgment they said: ?Even if expressed to be permanent, it can be extinguished by a subsequent agreement under Section 34 which provides for its extinction.?

That reversed a previous judgment by the Chief Justice rejecting that notion.

To be sure, the Trust was risking a good deal of money if it lost the appeal and clearly was not prepared to take the risk.

However, the ruling by the Court of Appeal makes the permanence of section 34 agreements much less certain, and in doing so, puts whole swathes of open land at risk.

It is unlikely that the Environment Ministry would override the agreements elsewhere unless landowners were offering to preserve open space of an equivalent size.

But that risk does now exist.

What is of concern is that Mr. Hodgson agreed to override the agreement after the Development Applications Board had rejected the application to build the road not once but four times and planning inspectors had upheld the DAB?s decision twice.

Evidently, Mr. Hodgson had some insight into the merits of the road that no one else had.

In doing so, he got a foot in the previously closed door of development of covenanted land, and it is conceivable that future Ministers could push the door wide open.

That?s a bad precedent and the Trust is right to now move to amend the law to make it impossible to override the agreements.

?We are certainly hoping Government would recognise the anomaly that is created in this legislation as interpreted by the courts and would want to resolve the anomaly in the interests of the public in the same way the Trust does,? lawyer Alan Dunch told yesterday.

One hopes that Mr. Dunch is right, although both major political parties have been notoriously unwilling to remove a Minister?s right to override decisions made by statutory boards.

But this is an area where it would be the right thing to do. Agreements made between landowners and Government in good faith should not be overridden lightly, if at all.