“Total Affront To Good Governance”

November 17, 2011

OBA Senator Michael Fahy spoke on the recent decision by Minister Roban to approve a planning appeal for a company owned by fellow Cabinet Minister Zane Desilva saying, “…it is the same dubious behaviour the country is sick of.”

“The OBA is very much in favour of a comprehensive overhaul of Planning laws, rules and regulations to streamline the Planning and appeals process, but also to curtail the ability of Environment Ministers to make such strange decisions,” continued Mr Fahy.

“We believe the behaviour demonstrated by these two Ministers, which, given the principle of collective responsibility, their colleagues are tarnished with, is unacceptable, unethical and wrong – a total affront to good governance.”

The plans by ZanZara Trust, which is owned by Health Minister Zane DeSilva, are to build three warehouses on the Island Construction premises by Devonshire Marsh.

The application was originally rejected by the Planning Department but approved on appeal by then Environment Minister Walter Roban.

Last night Mr Fahy, who serves as Shadow Minister of the Environment, Infrastructure, Planning Strategy and Housing, said, “As of 5p.m. today, there has been no comment from either Minister DeSilva or Minister Roban on the latest example of unethical behaviour.

“Too often there seems to be an attitude that if no response is given the story will simply go away. That is not good enough. The Ministers are ultimately responsible to the public. In other jurisdictions Ministers have been forced to resign over much less.

“The public has to ask themselves the following questions: Are they satisfied that these Government Ministers have acted in an honourable manner? Are they satisfied that there is no abuse of public office? Are they satisfied this is not business as usual? Are they satisfied that the decisions made are in the best interests of the country?

“In our view the behaviour of the two Ministers is not representative of good governance or moving forward together or re-setting the dial, though it may be an example of Building One Another Together – the theme of Premier Cox’s recent Throne Speech.

“Whatever the case, it is the same dubious behaviour the country is sick of. The OBA is very much in favour of a comprehensive overhaul of Planning laws, rules and regulations to streamline the Planning and appeals process, but also to curtail the ability of Environment Ministers to make such strange decisions.

“We believe the behaviour demonstrated by these two Ministers, which, given the principle of collective responsibility, their colleagues are tarnished with, is unacceptable, unethical and wrong – a total affront to good governance.

“What’s more, they don’t seem to care what people think, or perhaps they were hoping no one would notice. It’s completely disrespectful to the people of Bermuda; just one more example of me first over Bermuda first” concluded Mr Fahy.

After Mr Fahy issued his statement, Government then issued a issued a statement saying “the application has been granted in-principle approval only” and said “only the Minister responsible for Planning has the legal authority to determine an appeal of a Development Applications Board decision. To deny that opportunity because an applicant is associated with a Cabinet Minister would be unethical and unfair.”

The full statement from Government follows below:

In responding to several critical media reports concerning the in-principle approval of an application from the Zanzara Trust, the Government moved to clarify several matters for the public.

It should be noted from the outset that the application has been granted in-principle approval only. This means that the applicant (Zanzara Trust) must provide further information to the Development Applications Board (DAB) and agree and adhere to the stringent conditions attached to the approval before final approval can even be considered.

Therefore ANY development at this proposed site cannot and will not occur until final approval has been obtained.

The former Minister of Environment, Planning and Infrastructure Strategy the Hon. Walter H. Roban, JP, MP was satisfied at the time of his decision that he had sufficient information to grant in-principle approval, subject to various conditions.

Specifically, the conditions include:

  • The in-principle site plan shall be revised to resolve the discrepancies between existing conditions, the proposal as outlined in the application, the proposal shown on the plan, such as building footprints.
  • The application for final approval shall include a recent field survey showing boundaries, topographic conditions, existing buildings, walls and areas of hard surfacing (including gravel).
  • The application for final approval shall include a site plan and supporting materials reflecting the information indicated by the application check list or by Plan policy, including but not limited to buildings, hard surfacing (including graveled areas), utilities, water tankage, access design and details, roadway widening design, parking, large truck loading, parking and manoeuvring, and buffering or screening of adjacent sites.
  • The plan shall indicate the locations of any facilities involving potential pollutants or impacts on adjacent environmentally fragile areas, and how the potential impacts of pollutants will be avoided or managed, including petroleum or chemical product storage or use, sources of sedimentation or dust, or similar sources of impact.
  • A Traffic Impact Statement shall be submitted to the Department of Planning with the submittal for final approval, and the specific siting of the proposed access point shall reflect compliance with minimum requirements for safe use of the site, including minimum sight visibility in both directions, appropriate storm water management, proof that there is adequate turning radius and road width for the manoeuvring needs of the applicant’s larger vehicles.
  • In order to avoid the discharge of surface water run-off onto Middle Road/Parson’s Lane, the Freer Cox Nature Reserve, the Winifred Gibbons Nature Reserve, or any other property, provision shall be made for the control and disposal of storm water within the cartilage of the application site, the details of which shall be shown on plans submitted for final approval.
  • In order to avoid the negative impacts of inadequate or inappropriate utility servicing, the general location, and description of their provision shall be shown on plans submitted for final approval.
  • In the interests of visual amenity, a landscaping plan shall be submitted as part of the final approval, showing reliance on plant material appropriate to the site conditions and typically on the use of native and endemic species.

The Government emphasized that it fully recognizes that Devonshire Marsh is a vitally important wetland habitat and therefore this is why all requirements regarding protection of the neighbouring nature reserve must be met before final approval is granted.

It should be pointed out that only the Minister responsible for Planning has the legal authority to determine an appeal of a Development Applications Board decision. To deny that opportunity because an applicant is associated with a Cabinet Minister would be unethical and unfair.

While the application did not provide sufficient information to satisfy the Development Applications Board, the Minister adhered to the law in granting the appeal.

Furthermore, the Government would like to counter claims that there are any issues regarding the Planning process itself. The Planning process is sound. The law provides for applicants to appeal decisions of the Development Applications Board to the Minister.

The Minister has an option to refer the matter to an Independent Inspector or to determine the matter himself. Upon receipt of the Independent Inspector’s recommendation, the Minister must determine if he accepts the recommendation, wishes to vary it, or reject it. Should he wish to vary or reject it, the Minister would give his reasons for doing so.

The level of transparency and public engagement in the Planning process is an example of good governance at work. A distinction must be made between the processes involved in good governance and the subjective perceptions of decisions made under an authorized ministerial discretion.

The process of transparency has been upheld regarding this application process, as the Minister is completely cognizant that planning files are public documents and can be readily accessed.

Finally, the Government would like to stress that this application has been granted in-principle approval only. This is NOT a final decision and should the applicant return for final approval, he must satisfy the specified conditions. Failing that, the application will not be approved.

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  1. Planning Appeals To Be “Reviewed Afresh” : Bernews.com | November 17, 2011
  1. Fishy says:

    So why are they already bulldozing the Marsh if this is in principle only?
    There’s photos up online of it starting yesterday morning

    If only there was a world of blue people living in the marsh who would fight back and destroy the selfish businessman

    • Pix says:

      Post the link to the photos

      • Yup says:

        What would Bermuda be like if Zane was king of Bermuda? Keep that image in mind when you go to the poles!!! Believe me, if your image does not include Dr.Brown then your image needs correction.

    • Ray Charlton says:

      While I do not agree in what has been done with the Minister overturning the appeal decision, I caution that you do not confuse the government clearing the canal, with work being done by ICS. As far as I can see the backhoe that is operating opposit the church is clearing the canal. Is there other work going on that I have not seen?

  2. george says:

    If all right thinking people who are truly sick & tired of the plp’s b.s. please organize yourselves & do an occupy Hamilton & occupy the senate & parliament grounds and at least par la ville & victoria parks 24/7 until the plp government step down & call an immediate election.

    AT THE RATE HOW THINGS ARE GOING, BERMUDA CAN’T AFFORD TO WAIT FOR PAULA COX TO CALL ANOTHER ELECTION VOLUNTARILY!!!! ALWAYS REMEMBER, THAT IF IT CAN BE DONE IN TUNISA, EGYPT & LIBYA; IT CAN BE DONE IN BERMUDA!!!

    • Triangle Drifter says:

      Protesting on the Senate or Parliament grounds won’t do much. The Ministers concerned don’t spend much time there. Besides if a protestor gets in Zanes way, he will simply drive right into them as he has already done.

      Much better to do the protesting right outside of their HOMES evenings & weekends.

  3. Star man says:

    The Planning process is sound… It’s the unethical, self serving, political SDOs that gotta go!!

  4. pipsqueak says:

    Isn’t it time that we the peoples of Bermuda took legal action against these idiots, what legal avenue do we the peoples of Bermuda have against such an incompetent government, can we fire them, sue them for breach of office? There has to be something we can do short of an ELECTION? how about approaching Mr. Henry Bellingham
    bellingham@parliament.uk, this is the 21st century afterall, it’s time we Bermudians took back Bermuda and run the country as it should be run.

    • Never OBA says:

      Are you serious, you take legal action when things are AGAINST THE LAW. If things aren’t against that law what are you going to do.

      You Avenue is voting, so please when the time comes,cast your vote for who it is, but please don’t argue with the results of democracy!

      We have laws, and when people follow the laws, don’t get upset they are followed. To pretent this is a secret act when all planning appliations are public documents is a stretch too far.

      • Death to party politics says:

        This is a serious moral/ethical case when Government Ministers overturn decisions made at the Civil Service level, for fellow MPs. Not only is it undermining the Civil Service and makes, in this case, a mockery of the Planning process, but it looks like a clear case of backscratching. And right on the heels of this story, is news that Roban also approved a development by Wayne Furbert, who similarly had his plans rejected and overturned at the Ministerial level. This reeks of malfeasance.

        • stay focused says:

          @ Death to party politics:
          GREAT points but, you have to keep it simple for these people. “Malfeasance?” They will assume you are white, vote for the UBP/OBA, and therefore evil if you keep using words like that.

      • stay focused says:

        This article does not suggest that this was a secret act. The planning application was indeed a public document – and it was DENIED. The issue we have is that the appeal was granted by the then Minister in spite of his qualified employee team thinking it was fit for denial. Why do we pay to have a great team in the Dept of Planning if the Minister of the day is going to overturn their decisions?
        But your name (Never OBA) reveals enough about you to allow me to understand why your comments are laregly irrelevant and miss the point. We get it: You and (way too) many more like you will keep voting for PLP regardless of the nonsense. Enjoy the sh*thole that remians when they’ve had their way with the country.
        Also, the results of democracy can only be taken seriously when the demographic who vote are intelligent, informed and rational. Just saying.

      • Mad Dawg says:

        So, “Never OBA”, how many other Ordinary Joe’s got their planning rejection overturned by Roban that day? Did he do a few dozen, and two happened to be government ministers? If so, that would be one thing. But if the ONLY two he did were for his two buddies, the two government ministers, that stinks of clear cut corruption.
        Right?

    • Star man says:

      Been there, done that… No response.

  5. Hmmmmm says:

    Now where have I seen this movie before ? Oh right, Tim Smith and Trevor Moniz and a little Harbour Road application…….and before that, wasn’t there a Marshall-Bernardo Architect’s firm that got all its plans approved first and fast when partner Ralph Marshall was the Minister? Not condoning what has happened here but let’s face it, they learned from the best.

    • Hello says:

      Ok maybe these things happened in the past, but we are now suppose to have a NEW Bermuda,j all transparent etc etc. j
      They (PLP) are suppose to be doing things differently according to them.

      They are all the same, ALL for themselves. Greedy

  6. too boring for the fools says:

    I am surprised that there are no comments in blind support of the PLP on this thread yet. Typically, by this point there would be some uninformed soul saying that this is the usual tactics of UBP/OBA. What’s wrong? Is the article too boring?

    • navin johnson says:

      aahh see the comments of hhmmmmmm above you……..

    • Tommy Chong says:

      I don’t think Zane has done enough to warrant the backing of PLP supporters. He’s needs to slap on the coppertone & sit in the sun a little longer. He could also try pretending he was born speaking patois and get up on stage & sing, “I’m blind to youw hatas!”

      I apologies folks but I couldn’t help cracking the “Collieflower” joke.

  7. Tommy Chong says:

    Pollution in Devonshire Marsh is the reason for Bermuda having mutated toads in its ponds. Do we need to have children in born in Bermuda with ecology affected mutations before something is done?

    • Babs says:

      For goodness sake, go back to sleep. What a load of nonsense Tommy Chong.

  8. My two cents says:

    Zane De Silva officially disgusts me. Like puke in my mouth disgust. His son in law is Collie Budz. Collie PLEASE STOP your father in law from destroying Devonshire Marsh!!!

  9. My two cents says:

    Time to protest at the Marsh.

  10. Never OBA says:

    So let me get this, all this hullaballo is about an “In Priciciple” application that was approved with all the conditions the independent inspector suggested be included.

    What exactly are we fussing about???

    One day we need to “expedite planning pemits to make sure the economy gets back on track” next day it is “expedite for everyone except PLP members” OBA people kill me!

    • Death to party politics says:

      Why do you assume that everyone who speaks out against anything the PLP does, is automatically OBA supporters?

      The Department of Planning, who are the authority in terms of planning law, made a ruling against a Minister. This Minister then turned to one of his cabinet colleagues, and had it overturned. And this is OK?

  11. specialgirl4 says:

    The application was approved “In Principal”. Which is often the first phase of an application process, it does not always require complete details. However, the next stage will require complete details for the application. If the application is approved, there will be regulations and rigid requirements that any applicant will have to follow. This is uncommon practice for any application at the Department of Planning. It was common practice during UBP/OBA time in government when they also approved their friends, ministers’ applications for building or development of a business. (Where was your voice?)

    The Minister approved the application in Principal. There is no law that says a Minister must follow the advice of a Civil Servant. The Civil Servant is there to serve at the wishes of the Minister, and to provide detail information. The Minister has the final say, he can either accept the information to consider during his deliberations or reject it. Here is a case in which the Minister decided to approve the application in Principal. The process was followed, and frankly I do not see were any corruption or unethical behaviors took place. This process was ‘Open” it was not closed. It was known to the public, as the Department of planning has a listing of all approved applications in principal or otherwise. The planning board also is informed of the Minister’s decision. What’s new here???

    Nevertheless, it is becoming more evident that this issue is not about the process; instead it has become personal and political towards one individual. This is not a fight to save our environment. If it was, I would gladly support in the fight to do so. However, most of the post and comments suggest otherwise. The language used to discuss the issue clearly indicates that persons are trying to score political points. This is unfortunately sad, as it another case of “let’s try and catch them out”. I thought we had moved away from such distasteful approach to such issues.

    Hopefully, one day we can debate an issue and not get personal about it. The issue that is up for debate has gotten lost, due to all the negative attempts to bring down one man.

    • Stuart Hayward says:

      Over at the Royal Gazette site Betty Trump wrote exactly the same words that specialgirl4 writes here: “The application was approved “In Principal”. Which is often the first phase of an application process, it does not always require complete details.”

      I’ll repeat the response I posted there: It does however, require adequate details for the application to be processed, which Minister DeSilva’s application did not have. Don’t take my word for it, here is a quote from the file:

      “The proposal fails to conform with the provisions of the Development and Planning (Applications Procedure) Rules 1977, Policy APC3, Chapter 5 and Policies TPT.2, 3 and 4, Chapter 11 of the Bermuda Plan 2008, in that insufficient information has been submitted to enable a full and proper assessment of the proposal to be undertaken.”

      The application never conformed to the requirements — that’s why it was turned down by the DAB. Those basic requirements should have been completed, and even though Mr. DeSilva was given the opportunity to do so, he declined provide the basic information. There it should have ended. No one should be permitted to sidestep the basic process and get a free pass. For the Environment Minister to allow any individual to do so is bad enough, to assist another Cabinet Minister in subverting the process is really a corruption of principle.

      • Mad Dawg says:

        That’s happened before. SpecialGirl is definitely Betty.

        One and the same.

        I notice she comes on and makes statements but never answers anything. It’s not really a debate when that happens, it’s just SpecialGirl/Betty ranting.

        • specialgirl4 says:

          Specialgirl is Betty’s twin. So what ? Debate the issue !!

    • YES MATE! says:

      We have a different Spashulgurl tonight. This one can spell, but she’s just as delusional as the other Spashulgurls and you can tell because she said the OBA has already been the government. Been peeking into your crystal ball Spashul? Inzane is trying to destroy some sensitive parts of our environment and you said if he was trying this, you would be against it, so we are all waiting for you to condemn his proposal Spashulgurl Betty. Is that the sound of a pin dropping?

  12. specialgirl4 says:

    Line 4 should read ” this is common practice for any application at the Department of Planning”

    • Mad Dawg says:

      SpecialGirl, as I said on another part of Bernews, he had the legal ability to overturn planning dept decisions. You say it’s “common practice”. He did two on that day, that we know about, both for PLP cabinet ministers. Which has the appearance, you have to admit, of doing favours for his close friends. But if there is nothing unusual about it, and it is “common practice”, let’s get the full facts. Presumably, if he does this type of thing a lot, and for all sorts people (not just the privileged political elite), how many other special orders did he sign that day? Did he just sign these two, or were there 20 or 30 others that ordinary, unconnected, non-PLP people got? In other words, PROVE that these people got no advantage by being insiders. Otherwise, it does appear to be corruption.

  13. Shark Hash says:

    I checked the Planning Department website to see if they had applied for Final Approval. They have not.

    The application is for 60,000 square feet of warehouse space consisting of 3 buildings. And a relocation of site access.

    http://www.planning.gov.bm/applications.aspx

    Since they haven’t applied for Final Approval yet, that means that BEST and any other objectors can still object to the project when they do apply at the Department of Planning.

    So keep your eyes open in the Bermuda Sun for the advertisement of the project when they do apply for Final Approval. Objections must be received within two weeks after the advertisement date.

  14. Hello says:

    EVICT HIM from the property.

  15. Jim Bean says:

    here we go agai – specialgirl4 – plp operative!! there is nothing against the law here. rather it is ethics – something this government fails to grasp

  16. navin johnson says:

    yes Specialgirl its not illegal its unethical…..now where have I heard that before?

  17. LaVerne Furbert says:

    Royal Gazette, November 14, 2007
    “However, Mr. Ratneser said during yesterday’s appeal proceedings: “The position is although the media have tried to make it out that there’s a lot of fraud that’s been done at the BHC, that’s not correct.”
    He said that although an allegation of widespread fraud will form part of Smith’s appeal: “There’s absolutely no evidence of that. There will be no evidence before Your Lordships. These statements are very, very dangerous.” “

    • Mad Dawg says:

      So LaVerne, can we take it you agree this was unethical?

    • ooops... says:

      Sound Familiar Laverne?
      Royal Gazette, Apr 7, 2009

      “He is the only person ever convicted over the BHC affair, which is rumoured to have cost the taxpayer $8 million. According to extracts from leaked Police files relating to the scandal published by the Mid-Ocean News in 2007, Premier Ewart Brown, former Premier Jennifer Smith, former Tourism Minister Renee Webb, construction boss and current MP Zane DeSilva and others, were investigated by Police looking into allegations of corruption at the quango.

      When the probe concluded in 2004, then acting Director of Public Prosecutions Kulandra Ratneser said many of those investigated could only be accused of bad ethics. Mr. Ratneser also said some of those investigated escaped prosecution due to Bermuda’s antiquated corruption laws.”

      “Reflecting on Mr. Ratneser’s comments about antiquated laws, Sen. Dunkley added: “The powers-that-be have really done nothing to change that. The PLP Government had a direct hand in what went on through lack of controls and financial accountability and poor oversight. And despite the fact that the taxpayer suffered for it, nothing has been done to address it.”

      http://www.royalgazette.com/article/20090407/NEWS/304079952

    • Sean says:

      I guess you can quote the evil and inaccurate Royal Gazette when it suits your needs, although in this case I can’t work out exactly what those needs could possibly be.

      • Justin says:

        Simple minded people are easily controlled. Need I say anymore? lol

        • navin johnson says:

          sometimes you dont evan have to put bait on the hook Justin….

    • YES MATE! says:

      Hey LaWerne your former boss Cog said she would be “eliminating weakness” within and shortly afterwards you were out on your ass on the sidewalk outside the Senate. Your ex boss called you weak on national TV then fired you and still you back the PLoP even going so far as to defend the rich white guy in a non Pee el Pee matter! How much kool-aid do you drink everyday? Pee el Pee kool-aid comes in one color and it’s green! Seek help LaWerne, get yourself off de green kool-aid so you can see just who around here cares about you. Cog doesn’t and neither does Inzane.

  18. Jim Bean says:

    What is so very sad is that some posters seem to think that because it was done by others in the past it is acceptable now. PATHETIC. Perhaps specialgirl4 or PLP operative 1 should also check to see that the INDEPENDENT INSPECTOR said NO. the rest is of no consequence!

    • Swing Voter says:

      Yes Jim Bean OBA/UBP operative #1, The PLP government are operating under some of the same laws and governmental rules that were in place during the leadership of the OBA/UBP. Few of those laws have been updated. So the decisions that were made during that era follow somewhat of the same guidelines. However, one could debate if the decision made by the Minister was a wise one or a bad one is the question? Ministers back in the day also did not follow the protocol to the wire…where was your loud voice than? Why did I not hear your voice, and even today on issues that were not good by the UBP/OBA? This is not too suggest that I do not believe in following regulations and rules, it however suggest that we must be fair in our debate on the issues and not just present one side of the story in a bias and negative way. This is why I believe that issue has become a political one and not an environmental one, as it should be.

  19. navin johnson says:

    Oh Thanks Mrs. Furbert I was actually referring to the comments of Anglican Bishop Ratteray who made reference to the BHC when he referred to Ewart Brown actions as being unethical but not illegal…I think he mentioned it in his final sermon in June 2007…

  20. This is nothing new says:

    I have a friend who works in Government, who told that applications are refused every week in her Department. The the next step is to appeal to the Minister in charge of that Ministry.

    She also told me you would be surprised to know how many things are refused by the Managers and then a Minister steps in reviews a person’s appeal and grants it.

    She said you would be surpised to learn the number of appeals the Ministers of the PLP have granted for everyday people to help them move forward, so why should anyone else be treated and different.

    This is nothing new, only more smoke from the UBP or OBA.

    • Star man says:

      But it is so arbitrary, isn’t it…? And that’s unethical.

  21. dekilla says:

    I find it very amusing to read some of the comments here about a minister reviewing or rejecting decisions of the civil servants who fall under their ministries. That is their JOB. All of us have the right of appeal against the decisions made by civil servants if they feel aggrieved by those decisions. No one has asked how many of those appeals were upheld by the minister, it sounds like someone had their feathers ruffled because their decisions were overturned, and the fact that the applicants were also ministers is just fodder for those who are constantly looking for someway to fault the government and the system no matter who is in power. How many of you have had an application rejected by a department and exercised your right to appeal to the minister. I am a civil servant and see countless appeals in my department on a daily basis. Even when a minister upholds a decision, people will go to various lenghts to get what they want whether they deserve it or not. Just see how many ministers decisions are appealed to cabinet or the ombudsman, some even go as far as the supreme court. Instead of faulting the minister for making a decision that is within the law for him to do so, maybe you should be faulting the laws, policies, procedures and guidelines that make it possible. I am in no way suggesting that he made the correcy decision as I nor you where privy to the reasoning behind such. All I am saying is if you have ever been aggrieved by a decision made by a civil servant and availed yourself of your right to appeal, whether the decision was upheld or not, do not hold someone else accountable for exercising their same rights. Minister or not they are still citizens of this country and their positions can not and should not strip them of the same rights and processes available to all of us.

    I’m just saying..