Chief Justice Makes Ruling: Tucker’s Point SDO

August 6, 2014

[Updated w/corrected information]

The Bermuda Environmental Sustainability Taskforce [BEST] said they have “achieved success in its appeal against the Home Affairs Minister regarding Tucker’s Point Club and said they look forward to a new hearing on TPC’s applications.”

The Ministry of Home Affairs initially issued a statement earlier today, which was later retracted, that began by saying the Minister “welcomed today’s ruling by the Chief Justice to overturn BEST’s appeal..,”

Update 4.47pm: A copy of the Supreme Court’s decision [PDF] has been provided to us, and it states “the decision of the Minister dated March 12, 2014 is quashed,” while the Govt. said the Minister “welcomed today’s ruling by the Chief Justice to overturn BEST’s appeal.” We have asked the Government for clarification and will update as able.

Update 5.27pm: We are still seeking clarification from the Ministry on this matter.

Update 5.49pm: In response, Stuart Hayward from BEST said the Chief Justice’s Order “clearly states that the Minister’s decision of 12 March 2014 — the decision we appealed — has been quashed,” adding that the statement above “extraordinary in how wrongly it presents the Court’s ruling. I can only assume that a grave mistake has occurred.”

The full statement from BEST is below:

The Chief Justice’s Order, issued today, clearly states that the Minister’s decision of 12 March 2014 — the decision we appealed — has been quashed. It could hardly be stated any clearer: the decision the Minister made, the decision we appealed against, has been quashed, that is, rejected, nullified, made void.

The statement released by the Department of Communications is extraordinary in how wrongly it presents the Court’s ruling. I can only assume that a grave mistake has occurred.

As we understand it, the Minister will now have to go back to square one and take a fresh look [including new evidence, some of which came to light during the Supreme Court hearings] at the case we made in appealing a previous decision by the Development Applications Board [DAB]. The Chief Justice has strongly suggested that the Minister appoint an other qualified person to hear our case this time, to avoid even the appearance of bias.

Chief Justice Kawaley today issued his judgment in our appeal of the Envt Minister’s decision on Tucker’s Point’s application to subdivide areas on the property. The overall development totaled over sixty building lots, one of which will have up to 24 town-house residential units, another up to ten.

The Minister had upheld the DAB’s decision to allow the subdivision – BEST had appealed that earlier DAB decision, then appealed the Minister’s decision. Chief Justice Kawaley “quashed” the Minister’s handling of our appeal and now the Minister must consider a fresh appeal from us or appoint some other competent person to do so, mainly so as to avoid even an appearance of bias.

Our core argument will be that a proper and comprehensive EIA is called for. The CJ’s ruling paves the way for an EIA to be mandated so that all the possible things that could go wrong are examined ahead of time, probably including whether the proposed development can rescue the hotel’s bottom line.

Previously, the DAB and the Minister were both separately “advised” that they could not factor an EIA into their decisions, mainly because the original SDO had not called for it. Part of the CJ’s ruling clears the way for either the DAB and/or the Minister to call for an EIA and we intend to make a strong case for that call to be made.

The case had complex nuances, the most significant of which in my view was our lawyer’s successful application and judgment for a PCO [Protective Costs Order] that shielded BEST from costs if we lost, but also placed a cap on costs if we won. This was a precedent-setting argument and judgment. It has important ramifications for BEST now and in the future, as well as for other not-for-profit organisations seeking justice via the Supreme Court.

Update 6.13pm: The Ministry effectively retracted the initial statement, saying: “The Ministry wishes to apologize for any misinformation that may have been released prior.”

A subsequent statement released by Govt. said: “The Minister of Home Affairs Sen. the Hon. Michael Fahy JP has acknowledged today’s ruling by the Chief Justice regarding Tucker’s Point. To ensure clarity, copied below is the direct text from the Chief Justice’s ruling.”

1. I also find that the SDO is valid and is not liable to be set aside on the grounds that either (a) it was substantively ultra vires the Act, or (b) procedurally invalid.

2. The Minister conceded that his decision dismissing BEST’s appeal against the decision of the DAB to grant final subdivision approval in each of the four cases was liable to set aside because it was procedurally invalid. The central issue in controversy revolved around the relief the Court would grant ancillary to allowing the appeals against the Minister’s decision. He invited the Court to remit the appeals to him to be reheard according to law. BEST invited the Court to quash the DAB decisions as well (based on procedural and substantive unfairness at the DAB level. This would have required the Applicants to submit fresh applications, with the obvious risk that their efforts to preserve the Tucker’s Point Resort and related local employment might be undermined.

3. While BEST’s complaints about the fairness of the process before the DAB were justified, it was far from clear that a different decision would have been reached by the DAB had it proceeded more fairly and on a correct view of the law. Moreover, whether or not there should be an EIA and what form it should take are heavily policy-laden questions which the statutory scheme envisages will be resolved by the Minister and not this Court. I accordingly find that BEST’s appeals against the DAB decisions should be remitted to the Minister for rehearing, ideally by a person appointed by him under the provisions of section 57(4) of the Act.

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Comments (11)

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  1. swing voter says:

    okay then, does this mean that I have to eventually tie myself to a tree to get this situation fixed….yeah they stomped on the graves, they got our previous govt to cave in to demands, now the courts are (legally) in agreement with this messy legislation! get your rope ready folks!

  2. Heavens says:

    What does this mean exactly now that TP is bankrupt? Does this mean they can sell off the land and take the money and run?

  3. Needanew Government says:

    Oh yah… Just because the law was maintained to the letter don’t make it right! Hey Fahy, sometimes you have to protect the people from bad laws!

    Just throw more money at the financial debacle that is Tuckers Point by developing the last green space remaining… that will make it a success!

  4. Concerned Citizen says:

    So, will anybody ask former ombudswoman Arlene Brock for comment or even a simple admission that she AND best were wrong? Doubt it. Such scrutiny only applies to the PLP

  5. J Starling says:

    Have to admit the pdf of the ruling does seem to contradict the Minister’s statement. I look forward to greater clarity on this.

    Also look forward to reading BEST’s response.

  6. JAWS says:

    Pemier Dunkley my friend I really hope that after annual General Meeting on September 27, when a Party Leader, Deputy Leader and Party Chairman are elected. You serious consider shuffling the cabinet.

    • pressing the flush says:

      learn how to spell,write and type before you make comments.

  7. Independent Thinker says:

    How many people have access to that open green space? I know I will be hated for saying this but it seems those with the biggest yards are the most concerned about conserving green space

    • George says:

      Have you seen Stuart Hayward’s yard? Don’t talk rot!
      You may want to change your posting name at the same time – it does not reflect your posts at all!

  8. aceboy says:

    There was no scrutiny of the PLP, that is why we are in the mess we are in now generally.