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The following is the transcript of a speech given by Mr. Rudolph Hollis (recent ex-Director for the Department of Planning) at the BEST public meeting on March 22nd, 2007.

I was invited to come this evening and speak. As a career Civil Servant, we are obviously taught and trained not to take things personally. When we assess applications, we have to be very open-minded and simply rely on our education, the policies of the day and precedence. In many cases you will get situations where you feel very personal about something, but you have to set that aside and simply deal with the facts as they are presented to you.

My presentation simply speaks to the SDO as it’s commonly known, and what I’d like to do is simply just to look at the facts as it relates to the SDO and not to be personal in terms of the actual development of the “Southlands” property.SDOs, as we most commonly know, are actually Special Development Orders and they get their legislative authority under the Development and Planning Act. Anybody who wishes to look at that can go to Laws of Bermuda and you can get whatever information you want in there. The SDOs give the Minister what can be termed ‘extraordinary powers’ to make decisions on what is termed ‘special developments’. Now, the Development and Planning Act basically identifies three primary areas, amongst many other areas: there is the Development Plan, that’s the zoning maps; then there’s the Planning Statement which is that (shows binder) and that comes under the auspices of the Development Applications Board who has the responsibility for enforcing that; and then there’s the powers of the Minister.

Now, the Minister, as I said, has extraordinary powers because the Minister has the power to issue Special Development Orders; she also has the powers to enter into Section 34 Agreements; Section 34 of the Development and Planning Act. A Section 34 Agreement is an agreement that is entered into with the Minister and any interested party to either do or not to do something. In simple terms, if you wish to build something here and, in exchange for the permission of the Minister to do that you can protect something over here. That’s basically what a Section 34 is. In addition to that, the Minister has powers on appeal. The Board, however, are limited. The Development Applications Board can only make decisions in accordance with the Planning Statement; the Minister’s not bound by the Planning Statement and that is where we are now. But the Minister is, however, in her position, bound to rely on the advice of Technical Officers when preparing reports of this nature, whether or not it be Special Development Orders or Section 34 Agreements.

Now, basically, in terms of getting advice, the Minister obviously has a number of various groups that she can seek advice from: the Technical Officers in her Ministry; other Government Departments and also solicit the comments of the general public. In dealing with applications, the Minister must be guided also in terms of the purpose of those applications when you’re talking in terms of Special Development Orders. Over the last few years, you have seen a number of Special Development Orders that have actually been issued for various purposes.

Most importantly, the Minister has these powers because she must make exceptional decisions in cases of exceptional circumstances because the Planning Statement cannot be written for every circumstance that may come up. For example, years ago when we dealt with the Incinerator Plant; that was an exceptional circumstance; there’s nothing written in the Planning Statement which would guide the Board in terms of dealing with an incinerator plant so the Minister would have the discretion to consider something of that nature. We have, over the years, seen a number of different SDOs issued, such as what was mentioned earlier in the case of Daniel’s Head, Tuckers Point, things of that nature. What’s important is that sound judgement is made.

Now, I must say that the Minister does deserve some credit in the case of the “Southlands” one because the Minister, not being bound by the Planning Statement, did not have to actually submit this in Draft, nor did she have to solicit the comments of the general public. The Minister has the power to go and simply agree to that development. Whenever a Special Development Order request is made, there are a number of Government Departments that are solicited for comments. There is the Ministry of Finance, of course; Works and Engineering also and each of those Departments will advise the Minister prior to making a decision.

In this case, this particular SDO seems to be somewhat superficial. The reason that I say that and being objective, is that when I read through the SDO and with all the various forms of technical advice given to the Minister and expert opinion that she has access to, I’m somewhat concerned as to how this decision was made to issue an SDO in Final. You see, the SDOs can either… the Minister has the power to either issue an SDO in Principle or she can issue an SDO for final approval. An ‘in Principle’ SDO will simply mean that something has to be done in order for you to get your approval; you must satisfy me that this has been done before I give you the final approval.

In the past, there have been situations where the Board, the Development Applications Board, has still played an active part in a major development. Now, what has happened in those cases is that the Minister, with her extraordinary power, has issued an ‘in Principle’ SDO for the intent; the application for Final then, in turn, comes back to the Board to consider the details of that SDO and then the public have their opportunity to continue to stay involved. The reason that is important is because the Development Applications Board consists of lay-people, such as yourselves and everybody that’s here, but they do have various degrees of expertise. They usually have a lawyer… they usually have a lawyer present on that Board and people from various different aspects of the community which represent the interest of everybody that would be in Bermuda and they, in turn, can make a judgement in terms of what they feel is appropriate. That is not the case here.

The reason that I say that this particular one seems somewhat superficial is because it appears as was the topic of my presentation…‘to give the whole store away’ and what I mean by that is that, instead of considering an application for ‘in Principle’ and then be satisfied that all these other things have been done before Final is granted, this has put the cart before the horse in the sense that it has given final approval and then come back and said, ‘You need to do this, this and this before you can get your building permit’.

What I’ve done is I’ve taken the SDO and looked at the different conditions in regards to this development and the first, key point that I did raise was why has this been issued for final approval when, it would appear based on the presentation that was made and the plans that were submitted, not a whole lot of particular detail went into the drafting of those plans. They look more as if they were artist impressions rather than detailed drawings.

When you go through the Conditions in this particular SDO, and I’ll start with the first one, Condition a): where it talks about ‘An application for a building permit shall be submitted and shall be approved by the building authority prior to commencement of work’, and that is also continued in Condition b). Well, if you look at the actual design concept for this particular building, you will see that it’s probably something that’s fairly unique to Bermuda. I’m not satisfied… I’m not, in reviewing it, satisfied that with the various consultees that the Minister has, whether or not they have been used in assessing this application. For example, there’s a statutory body in the Architects’ Advisory Panel; their responsibility would normally be to look at something like this, pick it apart and determine whether or not this is something that would be acceptable for Bermuda.

Now, I can recall back in the early ‘80s I believe… or the late ‘80s when energy was a key factor in Bermuda, particularly in city buildings and the architects at that time came up with the clever idea of using reflective glass. The problem that they found with the reflective glass was that the birds kept flying right into it. My first point: if this particular design is going to be used on the South Shore, and if we consider the Long-tail bird to be important to Bermuda, it’s going to be catastrophic for those birds who are going to perceive all that glass, whether or not it’s reflective, and as we all know, when you have plate glass, at some angle it’s going to appear like a mirror. They would have the assumption that they’re flying along in the sky and they will fly right into this building. That’s going to be a major problem. As you go along further with these Conditions, it would normally be that the Architects Advisory Panel would give that advice that this may not be the most appropriate design for the South Shore. I did not get the impression that that was done; I stand to be corrected on that.

Condition b): speaks to… I’m sorry, Condition c) speaks to, ‘Prior to the approval of a building permit the applicant shall obtain permission for staff housing’. In the last few years, one of the key issues in Planning was the need to provide housing; housing that is affordable… affordable housing. My concern with this condition is that if housing is a problem, particularly affordable housing, then why are we approving for final approval a development if you have not been satisfied that you have somewhere for these people to stay; rumour has it that the housing will be accommodated on another site. I’ve even heard stories of an 8 storey building in Warwick and things of that nature. The problem is that this Special Development Order does not give approval for that housing which means that there’s no guarantee that that housing will get an approval. If an approval of this application relies on something else to be done, then what happens is the whole approval gets compromised if the housing doesn’t get approved. If the housing doesn’t get approved, it means that these people who are the staff, will have to look throughout Bermuda to find housing for them. It becomes a vicious cycle because now the housing scenario continues and what ends up happening is most Bermudians, the average Bermudian, ends up competing once again for housing that they would not normally have to compete for. A reason I say this becomes a vicious cycle is because you go all the way back to when the U.S. bases and the Canadian bases were here where a lot of their staff people took up a lot of the housing and Bermudians were struggling.

As you go along with these Conditions, I didn’t have any issues with d) which talks about the design and construction of the access road, even though I have a personal issue with that. But from a strictly technical side of it, I don’t have a problem with the Condition per se; I don’t have a problem with the Condition which relates to the access or the hard-surfacing.

Condition g): ‘The application for a building permit shall include full design details of the internal road systems to the satisfaction of the Ministry of Works and Engineering.’ If we’re not satisfied, at this point, with the internal workings of the road system, and if this particular site is as overgrown as it is, then I’m not sure how we’re going to be satisfied that this development, including the building and the road systems, is not going to have a negative impact on that site because roads can take up quite a bit of space on a site in addition to the housing development. I believe one needs to be satisfied that these things are in place before you can give permission to say, ‘Go ahead and develop this site’.

Condition i): ‘Prior to the approval of the application for a building permit, the proposal for the collection and treatment and disposal of sewage, and the collection of rainwater, all of these needs to be satisfied.’ I’m assuming that this has already been discussed and clarified with those Ministries which is why it was placed in as a Condition after the fact. It causes me some concern that the final approval has been given without those matters having been in place because for years we had the issue with pumping sewage out into the South Shore and creating an environmental problem. If you already have approval and there’s a commitment to a development which means that you have to compromise some standard along the way in order for that development to work. My issue with that is that are we now going to see the continuation of this pumping or is there going to be a sewage plant put in place? Those are the sorts of things that one needs to be satisfied before you can say it’s okay for you to do this development.

(Condition) j): ‘Any plant to be installed for emergency generation of electricity shall be approved.’ Now, that’s a big one for me also because I can recall about 2 years ago when BElCo had a fire and the whole island shut down because BElCo was the main supplier. It’s a common fact that BElCo’s stressed as far as the provision of electricity throughout the island; there is the continuous upgrading of their facilities, there’s continual breakdowns of their facilities. I think that the Government needs to be satisfied that Bermuda is ready to introduce a major hotel as it has been proposed, in terms of the ability to supply electricity to this plant. Again, that’s a detail that one needs to be satisfied before you say, ‘Yes, it’s okay to put this particular development here’.

Technical issue l): ‘Prior to the commencement of construction, the development of a full, Environmental Impact Assessment shall be carried out by the applicant to the satisfaction of the Ministry of the Environment etc. etc. etc.’ The Planning Statement which is a guide for the Board, and it’s also important to say… the Planning Statement is not law; the Planning Statement is policy. The Development and Planning Act is law, which is why the Board has discretion to make decisions, which is why the Minister’s not bound by the Planning Statement. If the Minister was bound by the Planning Statement, then she would have to act in accordance with that because the Minister doesn’t have the power, even with extraordinary powers, to break the law. So that’s policy but what it says in here, and I use this as a reference point, it says, and this is speaking to the Board, not the Minister. It says, ‘The Board may require the submission of an Environmental Impact Statement for development projects which, because of the character of the site or particulars of the proposal, justify the carrying out of a carefully examination of the potential impact of development prior to the determination of the application, included but not limited to such developments such as large-scale residential development, major hotel resorts, power plants and all those things. And then it goes on to specify some of the things that need to be included in an Environmental Impact Statement.

Now, there is a body in the U.K., I believe it’s called The Environmental Authority which we have, in the past, sent Environmental Impact Statements off to this body for an assessment and what they do is they grade it to determine whether or not it has covered all the specific points that are needed in order to determine if this is a good or a bad Environmental Impact Statement and then you can determine the impact.

If this has not been done, I don’t understand, or I’m somewhat confused as to why we would be giving final Planning approval if all these things have not been done because if you have already given permission and if the Environmental Impact Statement comes back and it’s not sufficient or is inadequate or it suggests that this development will have a negative impact, which I believe everybody here already believes it will, then what that means is that you find yourself in a situation where you have given approval and an approval is a legal document. So then you’re faced with what happens then. What it means is that you either have to go back and rescind the approval because they haven’t satisfied it or you have to wait till the statutory period for the approval runs out which means that Planning permission will expire. So you’d have to wait till it expires and not renewed again, or not applied for. That is not the approach that Planners would normally do. Planners would normally be satisfied with this development before giving approval or, back to my first point, they would grant ‘in Principle’ permission and that ‘in Principle’ permission would say you need to do this, this and this and this before you can get your final approval.

(Condition) m): ‘A detailed Landscaping Plan and Woodland Management Plan and Schedule shall be discussed with, agreed by and carried out to the satisfaction of the Minister of the Environment.’ I don’t know whether or not that was a typo to be quite honest but a detailed Landscaping Plan shall be discussed. Now, in my assessment of ‘discussing’, and wearing my technical hat, is that you can call up somebody on the phone and discuss it and they can agree over the phone with it. What this should be saying is that a detailed Landscaping Plan shall be submitted for consideration. Now that may be a very minor point but a Special Development Order is a legal document; once it’s gazetted it’s a very significant document. That would need to be clarified. Also, in terms of this document, and again it’s Draft so I’m assuming the purpose of it being put in Draft is to solicit the comments… everybody’s comments… and then go back and fix all the things that are wrong with it because, in this case, it doesn’t give a time period as to when it is to be submitted. It simply says, ‘… shall be discussed and agreed to by the Minister of the Environment and Telecommunications.’ It needs to… if it’s going to be an SDO for final approval, then you have to have limits; I’m not a lawyer but I know that most things have to have a date and it has to have a time. If not it doesn’t become a legal document because 5 years down the road we could be still waiting for this to be sent in.

Continuing on this, it says ‘Prior to the construction of the development, the existing Section 34 agreement that covers the part of the site shall be rescinded and a new one entered into with the Minister of the Environment.’ I have a big problem with that, primarily because when the Willowbank Foundation received permission for a hotel development on a smaller scale, again as I mentioned earlier, they said, ‘If you give me this, then I will do that’. They entered into a Section 34 agreement way back in the ‘80s which allowed… the Government gave them a small portion of area for a hotel and they, in turn, entered into a Section 34 agreement and it was done with all consciousness because not only did they enter into that agreement, but they forego their rights for the registered sub-division that existed at the time. They could have developed a lot of houses on there but they chose to enter into an agreement which takes priority over their registered sub-division.

Again my concern with this is that I’m not sure how you give final approval, which is contrary to the Section 34 agreement and then, after you’ve given it, say ‘You need to come back and enter into a new agreement that actually is more conducive to construction as opposed to the first agreement which was more conducive to protecting the environment’, particularly since the Minister of the Environment has, as a priority, responsibility for protecting the environment. That may be a contradiction in terms.

This Condition says: ‘Prior to the commencement of construction, a detailed Coastal Erosion and Protection Plan shall be submitted to the Minister for approval.’ Well, about 4 years ago… maybe 3 years… the Government employed the services of the Smiths Warner group which is a group of coastal erosion scientists that came to Bermuda and did a comprehensive assessment of all of Bermuda’s coastline and they made specific recommendation in terms of what we should or what we shouldn’t do and how we protect what we have. I would think that if we were considering such a significant development on our coastline, then a group like that would have been consulted in terms of this development because I do know that they have some quite specific recommendations which discouraged development on our coastline in favour of protecting our natural features. We all know that there’s an engineering solution to just about everything; you can build concrete/place concrete on the South Shore and restore it and the rest… like the artificial long-tail nest which I think was actually designed by Mr. Wingate. Well, if you’re going to place that hotel on there… right on the edge… and people are saying you should not be building on the edge, it seems somewhat superficial to do that and then to come back and say well we’re going to put some long-tail nests in there, because you might as well just have a concrete block wall and leave a few cells out and say we’ve got a long-tail nest in there. So, it didn’t make any sense.

But my last point on here which is crucial and I think it’s crucial to the average Bermudian that is the reference to the 42 residential units. There’s no mention in the Conditions of Approval about the 42 residential units or that the hotel shall be developed before these residential units are built. There’s no mention at all. My concern is that Bermudians have been faced with broken promises in the past through certain Special Development Orders; we heard it up at Daniel’s Head when the gentleman said he was going to take our trash and make other items out of it (recycle) and he was going to re-landscape that whole coast side and he was going to keep it open to Bermudians. Most of us know that what we ended up with was the Daniel’s Head Park, which we used to go to, became a lot smaller.

But, more importantly, in terms of the economy, is that whenever you build residential units for an exclusive market and whenever those units are being sold at a price of $1.7/1.8/2.0 million then what it does is it gives a false impression about the cost of living in Bermuda and what people can afford. So if houses in Bermuda are being sold overseas for $2 million then the average house in Bermuda tends to go up to compete with that. When those houses go up… at the present time we’re looking at an average rate of $1.4/1.5 so what that means is that whenever these hotel developers put these units up, what happens alongside of it is the cost of housing goes up with it.

So my point is that it is important for people to understand, not just the role that the Minister plays in issuing Special Development Orders, but also to understand the impact that these developments have. We could look at all the specifics about “Southlands” and the design and all of that but we have to look at the big picture that it all creates for us and I believe that it is important that everybody get involved and I also think it’s important for people to come out and show their support for what Mr. Hayward is trying to do.

Posted on April 8th, 2007 under , • RSS 2.0 feed • Leave a response, or trackback