Overuse of ministerial discretion
Dear Sir,
Although the decision on Lazy Corner at Flatts Inlet has grabbed the headlines, it is not the only recent instance of the Cabinet minister responsible for planning overriding decisions of the Development Applications Board.
Just before Christmas, there was a flurry of such decisions announced on planning appeals (see detail below). Cynics may consider the timing of these announcements calculated to minimise the opportunity for public awareness and protest. Setting that aside, it indicates a very worrying trend for flouting the Bermuda Plan 2018 and prioritising economic interests over all other considerations, even when there is no evidence that anyone but the companies and individuals seeking the application would benefit.
Every well-governed nation in the world has recognised the need to put a measure of control over the use of public and private land for the protection of the environment, heritage, neighbourhoods and communities.
In Bermuda, we have the Bermuda Plan 2018, which is intended as our vision and blueprint for land use over the next ten years. The plan was the result of many years of work by many people and involved the input of local experts across all aspects of Bermuda society, including industry and commerce, tourism, infrastructure, transport, energy and water, as well as natural and cultural heritage. Members of the public and organisations such as the Bermuda National Trust had the opportunity to challenge zonings and other contents of the plan at a public tribunal.
We created and agreed the Bermuda Plan 2018 as a community for the overall public good. The process already addressed where and how commercial activity should be allowed to balance the island’s economic needs versus environmental, cultural and other considerations. We have an entire planning department whose job it is to uphold the Bermuda Plan.
The Bermuda Plan should not be overridden by one individual — even one with the legal power to do so — without exceptionally compelling reasons in the national interest. To disregard the plan whenever someone wants to carry out a private commercial activity that they claim will produce economic benefit and jobs is an abuse of power and makes a mockery of the planning process.
Let’s take the Flatts Inlet example. This always has been an iconic beauty spot, featured in our tourism advertising for more than 100 years. The area in contention was not zoned Coastal Reserve because it held high ecological value; the zoning was owing to its environmental value in the broad sense that this undeveloped green patch of shoreline enhanced the views and tranquillity of the whole area.
Now it has been paved and houses a food truck — and, for a while, a large tent, which may yet reappear. In backing this development — done illegally without planning permission — the minister says it supports the National Tourism Policy!
Is it now part of our tourism policy to destroy one of the main things that attracts visitors to our island — our natural beauty?
Allowing this development is clearly not in the national interest, unless you define national interest as anything that may make someone a bit of money, no matter what damage is done in the process.
In the majority of recent cases where ministerial discretion has been applied, there has been no compelling case that it is in the national interest. Some private businesses and individuals may benefit, but Bermuda as a whole will be worse off. This practice has to stop. Ministerial discretion is open to abuse and perceptions of abuse if used too often. All Bermudians should be concerned by this and should make their concern known to their MPs.
KAREN BORDER
Executive director
Bermuda National Trust
Events Lawn for Bermudiana Beach Resort
The Bermuda Housing Corporation applied to build an events lawn and car park for the Bermudiana Beach Resort immediately west of the resort on a section of coastline that forms part of the Southlands National Park. Environmental organisations, including the BNT, objected strongly to this appropriation and development of national parkland for private-resort entertainment space. The application was denied in April 2023 by the DAB, which recognised that “the proposal would be highly detrimental to the natural and visual quality of the Woodland Reserve Conservation Area by virtue of the loss of high-quality native and endemic trees”. The car park was removed from the application after it was pointed out that there was a brownfield site ideal for a car park just a couple of hundred yards farther west. However, the BHC appealed to the minister for the events-lawn portion of the application to go ahead.
The minister used his discretion to grant permission “based on the importance of the proposed events lawn to the success of the tourism development which it would serve”. What is particularly problematic with this decision to give away part of one of our national parks for development is that appropriate processes were not followed. The change of use for this section of parkland was not gazetted and the decision was made in the absence of the National Parks Commission, the statutory body responsible for guiding decisions made about our national parks. The NPC was disbanded by Lieutenant-Colonel David Burch in December 2022, despite the legal requirement for its existence, and has not been reinstated.
This planning application seeks to demolish an ageing Front Street block and build a new nine-storey retail and office building in its place, as the headquarters for Brookfield Reinsurance. The application was denied by the DAB in November 2023 on the grounds that it does not conform to the existing City of Hamilton Plan, which restricts building heights within the City to seven storeys, and because it “would not be sensitive to, or compatible with, the Historic and Retail District, and would result in a form of development which detracts from the visual amenity of the area, detracting from important features, landmarks, views and vistas”. The applicant appealed and the minister used his discretion to grant the appeal without giving any reasons for his decision, and despite the Director of Planning’s recommendation that the appeal be dismissed. It seems that if a multinational corporation worth $64 billion wants to flout Bermuda’s longstanding building-height regulations they can do so, although they could afford to remove a storey or two.
To be clear, the Bermuda National Trust does not have an issue with a modern, new building in this location, just with the excessive height, which would tower over adjacent buildings and mar the city skyline including views of the cathedral from across the harbour. Moreover, this development would likely set a precedent for similar high buildings in the Historic and Retails District of Hamilton, although there does not seem to be a shortage of existing office space.
In January 2022, the owner of an area of Coastal Reserve at the eastern end of Flatts inlet paved it over and sited a food truck and “outdoor lounge” there, without planning permission. When he was issued with a planning control order, he applied for retroactive planning permission, which was denied by the DAB in March 2023 on the basis that the development was environmentally insensitive, and owing to parking and traffic concerns.
The applicant appealed to the minister, who ordered an independent report. The independent planning inspector agreed with the DAB that the development would be detrimental to the beauty of Flatts inlet and recommended the appeal be dismissed. However, the minister decided to ignore the recommendation of the independent inspector, overturned the board’s decision and granted retroactive planning permission, citing as his reasons “the need to support different hospitality options such as food trucks, which have the potential to expand the culinary experience for residents and visitors. It is also imperative to note that this position supports the National Tourism Policy”.
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