The biggest differentiating factor of an SDO is that the public process that is set up under the Development and Planning Act 1974 (“the Act”) is circumvented. Sometimes the right to object is removed all together, and the right of appeal granted under the Act either does not apply at all to SDOs or only in a limited fashion. The result is that an SDO which is granted by the Minister may only be reviewable by the Courts under a process known as judicial review.

  The planning process is intended to ensure that the use and development of all land in Bermuda complies with the zoning. Therefore, it has generally been accepted that SDO’s are typically only used when a matter is proposed that the zoning did not envision or cannot permit, and where the development is of national significance and importance.

What has been happening lately is that developers are seeking SDO’s instead of complying with the zoning at all, and/or the development regulations that control use, density, height, site coverage. Often, the SDO’s are being granted without the requisite studies typically required before development is approved, such as Traffic Impact Studies or Environmental Impact Statements.

There is, as a result, the perception that SDOs are being used to “end run” the planning process to give developers a guaranteed approval for development that will not be held up in the typical public process, and not subject to the normal scrutiny of the Development and Planning Board

Introduction

The Act is the legislation that controls the use and development of land in Bermuda.

The Act requires the preparation of a Development Plan and a review of this Plan every five years. The Development Plan in force in Bermuda is the Bermuda Plan 1992 Planning Statement. This plan was approved by both houses of the legislature in 1994. Therefore, under the Act the Bermuda Plan should have been reviewed in 1999 and such a review is now 7 ½ years overdue. This is inconsistent with standard practice in advanced democracies that have respect for and an understanding of the import of good planning and the benefits it brings to the community. It is possible that a legal challenge by way of a judicial review could be made requiring the Minister to review the now outdated Development Plan.

The Department of Planning cannot recommend an application for approval if any aspect of the proposed development does not comply with The Bermuda Plan 1992 Planning Statement, or if the policies do not permit the Development Applications Board to exercise some level of discretion to approve the proposed development.

Similarlarly, the Development Applications Board does not have the power to approve any development that does not comply with The Bermuda Plan 1992 Planning Statement, or does not provide for the exercise of its discretion.

The applicant, the Department of Planning, or any third party can appeal a decision of the Development Applications Board. The Minister of the Environment makes the final decision on development application appeals. The Minister has the power and discretion to approve a development that does not comply with The Bermuda Plan 1992 Planning Statement. In other words, the Minister can ultimately override the Department of Planning and the Development Applications Board and allow a development that does not comply with the Development Plan.

The decision of the Minister of the Environment can only be appealed on a point of law or on the ground that the Minister, in granting the appeal, acted ‘unreasonably; Since The Bermuda Plan 1992 Planning Statement is policy – and the Minister’s policy at that - it is typically difficult to prove that the Minister erred on a point of law, and generally the decision of the Minister will be very difficult to quash.

Development applications that are approved by the Development Applications Board are submitted pursuant to section 14 of the Act.

Development applications that are approved by the Minister of the Environment, as Special Development Orders (SDO), are submitted pursuant to section 15 of the Act. Unlike applications submitted pursuant to section 14 of the Act, SDOs do not necessarily have to be advertised, and they are not subject to third party appeal.

The Special Development Order
Legislation and Policy Direction

The Planning Statement is silent on the matter of when an SDO should be granted. The Act does not provide any guidance as to when an SDO should be granted either.

However, the Act does state that the use and development of all land in Bermuda should comply with the zoning. Therefore, it has generally been accepted that SDO’s are typically only used when a matter is proposed that the zoning did not envision, and the development is of national significance and importance.


Selected Historical and Current SDO’s

The Bermuda Equestrian Centre was proposed on land zoned as National Park, and this use was not permitted by the zoning. The Minister decided this was of national import and granted in principle approval for the use. The final application was submitted to Planning, received over 300 objections, was refused by the Board, and the use was simply denied.

The Berkeley School and the Aeolia Drive Treatment Facility were both located primarily on Woodland Reserve, which prohibits all development. The Minister decided the School and Treatment facility was of national import and granted final approval for the use.

SDO’s have also historically been granted for tourism uses. However, recent trends have seen a significant increase in numbers of SDOs granted and for such small developments that could be made to comply with the zoning with fairly minor amendments. There are now recent examples of SDO’s being granted that fully comply with the zoning, but are seeking a quantum of development that is simply not permitted by the development regulations.

The Newstead Hotel property, granted approval under the Belmont Special Development Order, sited four units on the Green Space and therefore did not comply with the zoning of the site. If there had been an enforcement to remove these units off the green Space designation, the development could have been considered by the Board.

This reflects an increasing trend to design a development on Conservation Areas and only subsequently to advise Government the proposal does not comply with the zoning, and therefore must be considered as an SDO. Likely motivations for developers are:

1. more development on land that would have been protected by the Conservation Zoning


2. a guaranteed approval which will not be subject to the normal scrutiny, objections and planning process


3. and often, an approval without the costly studies normally required by the Planning Statement.

The Ritz Carlton Hotel and Residences SDO grants in principle approval for a development that would have complied entirely with the Development Brief for the site, except it does not meet the required setbacks and is for 9 storeys of development when only 7 are permitted. It appears this SDO was simply a means to grant a guaranteed approval without public process. This SDO is very unique, and may possibly be unlawful. It requires, as a condition of final approval, that the details of the staff housing are to the satisfaction of the Ministers of Tourism and the Environment. As the Minister of the Environment deals with all section 14 application appeals, the Order actually fetters the Minister’s discretion.

SDOs and Public Benefit

There is no doubt that SDOs have their place for developments which are meeting an urgent public policy need and it is clear that the development does not fall within the Development Plan and Zoning requirements.

However, in circumstances where no Minister of the Environment has, since 1992, met his or her duty to carry out a survey of Bermuda and prepare a development plan (consisting of a written statement forumluating policy and proposals and making specific provision for all the matters specified in the Second Schedule to the Act) and no review of the 1992 Plan has been conducted, the Act is simply being ignored altogether.

The use of SDO’s is allowing ad hoc development to be approved without reference to any updated planning policy, without reference to the existing Development Plan, and without reference to growth and sustainability guidelines typically afforded by a Sustainable Development Plan is undermining the purpose of the Act. In a sensitive island environment (ecological, cultural, socio-economic) such as Bermuda, ad hoc decisions such as these may result in unintended negative consequences, which may not be reversible, and may result in the Minister not meeting his/her duties under the Act and meeting the needs of the public he/she serves.

The second issue relates to the implementation of the SDOs and Government’s dealings with the developers. There is growing scepticism that the large hotel/residential projects granted SDOs are not producing the public benefit promised. There is a growing concern that the real intent of developers is to develop the residential units, make the profit and either abandon the tourism use all together, or build a second rate tourism product, in order to meet obligations.

Public Process / Natural Justice

The Act and related regulations contain a public process for consultation and objection which support principles of good governance and natural justice. In any democracy, it is generally understood that people have a right to participate in decisions that affect them. That is why applications are advertised with an objection period, and why they are subject to appeal.

What Should Happen When Applications can Comply with the Zoning of the Site

• An application is advertised and objectors have two weeks to lodge objections to the development. The applicant is advised of the objections. The objectors are advised of any revisions to the plans.



• The Department of Planning (the Department) will ask for an Environmental Impact Statement (if required by the Planning Statement) and a Traffic Impact Statement (discretionary) to assess the merits of the application; will consider the objections, and make a recommendation to the Development Applications Board (the Board).



• The Board has an unwritten policy that when there are more than six objectors they will hold a public hearing into the application and then make a decision on the application.



• The decision of the Board can be appealed by the applicant, objector or the Department.



• An independent Planning Inspector considers the appeal and makes a recommendation to the Minister of the Environment. The Minister of the Environment considers the recommendation of the Planning Inspector and makes a final decision on the appeal.



• This process reflects the rules of natural justice and good governance in the sense that a decision is reached after taking into account all relevant considerations, including objections.

What Can Happen when Applications do not Comply with the Zoning but is considered to be of National Interest

• For developments that do not comply with the zoning, the Minister of the Environment (in conjunction with Cabinet) can determine the project is of such national significance that Government should grant a Special Development Order.



• A Special Development Order can grant in principle approval and send the applicant back to the Department for final approval. The final decision to grant permission would be made by the Board.



• This process would allow the Board to hold a hearing and guarantees the applicant and objectors the right to appeal the decision of the Board.



• This process meets the rules of natural justice.

OR

• The Special Development Order can grant final approval for a development application, thereby eliminating the need to go back to the Department or the Board for final approval.



• This process takes the Board out of the decision making process altogether. Objectors have no statutory right to object or appeal.


• This process does not meet the rules of natural justice and that is why this power should be very carefully exercised and only when the development cannot be made to comply with the zoning of the site, and is of such national importance that it merits special consideration

Conclusion

It might be considered judicious for the Minister to suspend the use of SDO’s absent extremely compelling public policy reasons to support a development at the very least pending the Minister meeting her statutory duty to review the 1992 Development Plan, carry out a survey of Bermuda and prepare a development plan which formulates a policy for the development of land in Bermuda going forward.

Otherwise, the Minister is arguably acting in breach of the Act in granting SDO’s because she does not have access to information and material considerations to enable her to exercise her powers and discretion on an appropriate basis and in the best interests of the public she serves.