former Planning Department official said yesterday.

If the Environment Ministry believed Bierman's was operating unlawfully and that it had the right to order it to cease operating, then all development in Bermuda before 1965 was under threat and an "absurd'' situation would be created, Mr. David Cattermole said.

The Planning Department could conceivably serve enforcement notices on all developments occurring before the first planning control law came into effect in 1965, he said.

"That would logically mean that everyone affected would have to come scurrying into the Department to obtain express planning permission,'' he said.

Furthermore, Mr. Cattermole said: "The root of the problem seems to be residential development in the area which came after industrial uses were established (at Rocky Heights in Smith's Parish).'' He added: "Bierman's clearly recognises the problems caused by industrial use being so close to residential properties, notwithstanding the fact they were there first.'' That was why it wanted Planning permission to enclose the area and house the industrial plant, he said.

Mr. Cattermole, who owns a planning and development consultancy firm in England and once worked for the Bermuda Planning Department, said: "(Bierman's) long history of industrial usage at Rocky Heights has earned themselves the right to continue the same activities safe from threat of enforcement action.'' Government lawyer Mr. Philip Holder will cross examine Mr. Cattermole this morning.

The battle between Government and Bermuda's largest concrete products firm began in Supreme Court last week.

Bierman's claims it was incorporated as Herbert Bierman Concrete Products early in the 1930s -- not Herbert Bierman Quarries.

And it says a former director of Planning had backed it by stating the firm had use rights to Rocky Heights after the first Planning Act came into effect.

It had been producing substantial amounts of concrete products since the 1950s -- even supplying a major hotel, but it was only recently that Government tried to shut it down.

Government's position, however, is that Bierman's never had "use rights'' for the site.

Bierman's has finished work at its quarry and has no "use rights'' for other operations at the site, like making concrete blocks.

Families near the Smith's Parish firm were suffering from noise and dust as a result of the operation.

Bierman's lawyer Mr. Mark Ray has argued closure of the plant would put up to 55 people out of work and send construction costs soaring as concrete block would have to be imported.