Government are set to appeal Friday's Supreme Court decision which backed the The National Trust's bid to block a controversial road scheme which threatened protected woodland.

Chief Justice Austin Ward said former Environment Minister Arthur Hodgson had given no weight to a restrictive covenant at the Chaplin Estate in Warwick.

The road scheme had already been rejected four times by the Development Applications Board before Mr. Hodgson granted permission to build another access road through protected woodland to the homes off Harbour Road in July, 2000.

The plan had also been rejected twice by independent planning inspectors.

Government lawyer Melvin Douglas told The Royal Gazette: "We are considering whether to appeal at this point. We will consider it and make our decision in due course."

And Delroy Duncan, who represented the home owners, said: "My clients intend to appeal."

Mr. Justice Ward upheld The Nationals Trust's appeal launched against the Ministry of the Environment and the two home owners, Keith James and Roger Raynor.

He said the Minister did not have the right to overturn a previous covenant - known as a Section 34 agreement under the Development and Planning Act 1974 - between planners and original land owner, Charlie Chaplin's widow Lady Oona Chaplin.

She had put the section 34 in place to protect the woodland in return for allowing her to subdivide the lot before the homes were built in the early 1990s.

Government planners and the Development Applications Board had used this argument to block the first 1998 bid by the home owners to build the road alongside the usual access to Middle Road via Cedar Hill and Tribe Road number Six.

Mr. Justice Ward said in his judgement: "Nowhere in the decision was any appreciation shown by the Minister for the section 34 agreement.

"Section 34 agreements impose permanent restrictions on use of land."

Government had argued the section 34 cannot be used to restrict the actions of the Minister or board and that because the National Trust was never party to the section 34, it had no right to try to enforce it.

Mr. Ward said the Minister had a public duty to protect woodland conservation areas. He said: "The Minister neglected or refused to perform his public duty."

National Trust lawyer Alan Dunch said he hoped the decision would set a precedent if others tried to overturn section 34 agreements.

He said: "I am pleased. I was involved in the section 34 process when it was first developed in the early 1980s.

"It was clearly implemented hoping we could preserve land in in perpetuity.

"This judgment is a very important judgment because in essence its rendered sacrosanct section 34 agreements when they are entered into."

Mr. Dunch said he was surprised Mr. Hodgson had ignored the wishes of his board in the first place.

He said: "I think the Chief Justice was right. It's pretty clear in making this decision the Minister was sympathetic to the owners and just didn't pay in any regard to the fact that the section 34 was there for a reason, to preserve land in perpetuity for the public good.

"It's the public good which is ultimately paramount. That's what the National Trust is here for."

Mr. Dunch said the homeowners could appeal. "But I would expect in light of the judgment the Chief Justice has delivered the Minister would formally dismiss their appeal."

National Trust director Amanda Outerbridge said she was pleased with the judge's decision.

"Section 34 agreements are hugely important to the permanent preservation of open space and what we are trying to do - to preserve as much open space as possible."

Conservationists feared the development would result in large quarrying and disrupt roots for casuarina trees, making them prone to being blown down in a storm while exposing others to wind damage.

The woodlands have native and endemic species and was a habitat for the catbird, the cardinal and the Bermuda white eyed vireo.

Asked about the planned appeal Mrs. Outerbridge said the Trust would consider their response at the appropriate time.

She said: "In the meantime we look forward to reviewing the written judgment when we receive it in the next few weeks."

Opposition MP and former Planning Director Erwin Adderley said the road was a bad idea but now Government felt obliged to defend Mr. Hodgson, the former Minister.

"Government must feel they have to justify it because it throws into question their processes and impartiality."

However he said the Minister's decision was supreme in such matters and could only be overturned on a point of law.

He said the issue had been going on for about ten years during which time he was Planning Director in the Environment Ministry.

"It was turned down under my regime because of the environmental impact."

"It makes a mockery of the law if it can be approved with no new circumstances. They are exactly the same."

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Editorial: Page 4