Development – Proposed addition of two storeys to existing three story building – Addition blocking appellant’s view of harbour – Bermuda development plan prohibiting more than three storeys – Planning board bound by plan – Minister granting planning permission – Appellant objecting – Whether minister having discretion to depart from plan – Judge quashing grant of permission – Bermudan Court of Appeal restoring minister’s decision – Privy Council dismissing appeal
The appellant owned a house in Pitts Bay Road, Bermuda, overlooking Hamilton harbour. There was a clear view of the harbour until a building was put on the other side of the road with an adjacent car park. The appellant could still see the harbour over the car park. Development of land in Bermuda was subject to the provisions of the Development and Planning Act 1974. In July 1992 the Bermuda development plan became operative. In November 1992 the second respondent, Scarborough Property Holdings Ltd, applied to the Development Applications Board, the board, for planning permission to increase the car park from three storeys to five. The proposal would have blocked the appellant’s view of the harbour and he objected. Planning permission was refused but, on appeal, granted by the minister in August 1993. The judge, on the appellant’s appeal, quashed the minister’s decision. The Court of Appeal allowed the appeal and restored the minister’s decision. The appellant appealed to the Judicial Committee of the Privy Council, contending, inter alia, that the Bermuda plan 1992 contained a specific provision restricting the maximum building height of all development fronting Pitts Bay Road to three storeys, and that the minister was prohibited by section 17 of the 1974 Act from giving planning permission if the result was contrary to the plan. Furthermore, when section 57(3) of the Act enabled the minister to deal with the application as if it had been made to him in the first instance, he could not, as an appellate authority, have wider or different powers from the board, the tribunal from which the appeal was brought. The appeal was dismissed.
Held The appeal was dismissed.
1. Exercising his functions on appeal, the minister was required under section 57(7) of the 1974 Act to “have regard to” the relevant provisions of the development plan and to any material consideration. There was a clear distinction between those words and the words” the Board shall not grant” in section 17. Under section 57 there was no absolute embargo on the grant of planning permission. The minister had to have regard to the development plan but once he had had regard to it, he might still grant or refuse planning permission. Under section 17 the board could not grant planning permission if the development would be at variance with the plan.
2. If it had been intended to give the minister the same powers as the board, the legislation would specifically have provided that the minister should not grant planning permission which would result in developments at variance with the plan. The 1974 Act therefore marked a substantial shift in the traditional Bermudan approach to planning.
Gordon Pollock QC and Miss KJ Bell (of the Bermuda Bar) (instructed by Lovell White Durrant, London agents for Appleby Spurling & Kempe, of Bermuda) appeared for the appellant; ;The Attorney-General of Bermuda ( instructed by Charles Russell ) appeared for the first respondent; SM Froomkin QC (of the Bermuda Bar) and AA Martin (of the Bermuda Bar) (instructed by Charles Russell) appeared for the second respondent.
