(The Royal Gazette: 4/8/2010)

Sustainability group BEST has won its appeal to prevent a proposed bar on Warwick Long Bay.

Puisne Judge Ian Kawaley ruled to quash the case after Government conceded that Environment Minister Glenn Blakeney didn’t explain why he decided to give the restaurant the green light. The ruling means that a Planning Department decision to reject the proposal will stand entrepreneur Belcario Thomas must reapply to that board if he wants to continue with the project.

He said yesterday: “I think we will take this time to consider our options and see how interested people are in the concept.”

Bermuda Environment and Sustainability Taskforce (BEST) chairman Stuart Hayward said the correct ruling was made, but it was too long in coming.

“It’s disappointing how long the Government had dragged this out. It’s been an ongoing strain on our organisation, our supporters, and the residents of the area.

“I can’t speak for Mr. Thomas, but I would expect it’s been painful for him to be left in suspense all this time. Just this week I’ve heard complaints about the state Horseshoe Bay is in it may be the gist of his application would be best put forward at that location.”

Controversy has surrounded the plans for Mr. Thomas’ Sandbar since the restaurant was first proposed in 2008.

He then described it as an “Ibiza-style” eatery that would enhance the natural beauty of the area.

BEST argued the proposed restaurant would increase litter and noise on one of the Island’s most beautiful beaches.

Mr. Thomas’ application was rejected by the Planning Department, however Mr. Blakeney approved it on appeal a move contested by BEST.

Tim Marshall represented the environmental charity at yesterday’s court hearing.

“It’s a matter of magnitude. It is hard to rationalise how an appeal process with more than 100 complaints can reach a one-line conclusion and that’s it,” he told Mr. Justice Kawaley. “That, on its face, suggests something is wrong.

“The National Parks Commission was basically emasculated by that decision. The focus for them was how to deal with this. The inspector basically said in his report that it doesn’t have a significant enough level of detail to be approved. The only person who didn’t give a reason was the Minister judging this.”

Ministers are allowed to go against their advisors but should only do so where there are material considerations, Mr. Marshall said. He added that that breach in procedure and others, could give the impression of bias.

“We have no idea what those material considerations were. Essentially, it’s taken the wind out of our appeal efforts.”

Government lawyer Huw Shepheard said his client decided to concede the case on the basis that Mr. Blakeney did not reveal his reasons.

And he said Government would also concede the cost of the proceedings.

He asked that Minister Blakeney be allowed to deal with the matter in accordance with the law Mr. Marshall argued it should be quashed entirely.

“He has been given a lengthy opportunity to deal with this and it has been like pulling teeth,” he said. “It would be unsatisfactory to give this particular Minister an opportunity to set out his reasons when it should have been done a long time ago.

“The fairest outcome would be to let the process begin fresh from the start. Just sending it back so he can write reasons on it is too late and too little.”

Mr. Justice Kawaley agreed.

“In this case it would be unsatisfactory, the appeal having been conceded, for the matter to return to the Minister.

“In my view it is quashed and the Planning applicant is of course able to make another application.”

Mr. Thomas said he was disappointed that what he felt would be an attraction for tourists had come up against another hurdle.

“This was a project designed in the spirit of sustainable development, that would allow people to enjoy a two-course meal and a glass of wine while running their toes through the sand,” he said. “It is a tremendous disappointment to us, especially at a time when we need to introduce new concepts.”