BNT ‘Concerned’ About Proposed Amendments

The Bermuda National Trust [BNT] said they are “very concerned about the proposed amendments to the Development and Planning Act tabled on 2 July, in particular changes to the process for the granting of Special Development Orders and the introduction of Emergency Development Orders.”

A spokesperson said, “The most concerning amendment is a proposal that will remove the ability of Parliament to debate and vote on Special Development Orders [SDOs]. Instead, the Minister of the Environment will have the power to issue an SDO at his or her own discretion.”

Karen Border, Executive Director of the Bermuda National Trust, said: “In tabling the Bill, Environment Minister Walter Roban stated that the ‘streamlining’ of the SDO process has been proposed after ‘stakeholder engagement with the development industry’.

“As an example of the need for change, he cited a three-month delay in the passing of an amendment to the 2018 Tucker’s Point SDO which put the Tucker’s Point developers at ‘significant risk of losing potential buyers’. The Minister appears to be saying that the short-term business interests of private companies are more important than allowing for due processes intended to protect the natural heritage of all Bermudians. Businesses can start and fail, but once bulldozed and developed, our natural heritage is gone forever.”

“The point of an SDO is that it is ‘special’ i.e., it can override the conservation zoning protections of the approved Bermuda Plan 2018 – a plan that was carefully formulated by experienced planners and went through a lengthy process of appeals, counter-appeals and a tribunal before being ratified by Parliament. SDOs should only be granted for projects that are deemed critical to the national interest of Bermuda. Without the transparency of a parliamentary debate, how are we to weigh up the real national interest merit of a proposed development?”

“Minister Roban has stated that he believes the introduction, in the same Bill, of mandatory public consultation on SDOs actually provides for a ‘higher threshold’ of oversight. This is not the case. Unlike the present ability of MPs to vote against an SDO, there is absolutely no requirement for the Minister to act on the results of a public consultation. Experience has shown that Environment Ministers have frequently used their power of discretion to ignore the advice of both their own planning board and independent inspectors, so why should we expect that Ministers will heed the advice arising out of a public consultation?”

“The Amendment Bill also allows for the issuing of Emergency Development Orders in the event of a national emergency. In tabling the Bill, the Minister explained the intention ‘to expedite the processing of a planning application and approve the application administratively to address a crisis situation, provided that any such decisions, while fast-tracked, must not contravene any legislative or policy directives such as building codes.’

“However, as drafted, the amendment allows for extremely broad powers, including the ability to grant a development order for a whole class of development, not just specific applications. The definition of what constitutes a national emergency is also extremely broad. It lists hurricanes, for example, but does not specify the extent of hurricane damage that might constitute a national emergency, not does it specify who has the power to make that determination. In principle, Emergency Development Orders may be a valuable tool for Government in a crisis, but the legislation needs to be drafted more tightly to prevent any potential abuse.”

“At the same time, this Amendment Bill seeks to increase environmental protection by introducing a new designation of ‘protected conservation areas’. It is important to note that acquiring this designation would be entirely voluntary on the part of landowners. While the intention of this amendment is good, the Trust cautions that the new designation could create a two-tier effect, whereby lands that do not have this voluntary designation come to be seen as fair game for development, even if they have conservation zone protections under the Bermuda Plan 2018.

“Indeed, if the Plan were fully adhered to and enforced, and if Ministerial discretion were not used to override decisions based on the Plan, there would be no need for the additional protection offered by this designation. Its main benefit will be that, when the current Plan is up for review, landowners will not be able to appeal for the removal of conservation zoning on property designated as a ‘protected conservation area’ without the approval of Parliament.”

“The legislation is also unclear on one critical point. If a developer who acquires a ‘special conservation area’ wants to develop it and applies for an SDO, would the proposed negative resolution procedure for the SDO trump the proposed affirmative resolution required to remove the protected status of special conservation areas, or vice versa?”

“Taken as a whole, the net result of this Amendment Bill is not greater environmental protection, but less. With so little of our precious open space remaining, Bermuda simply cannot afford to loosen existing protections in favour of developers.”

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