Mr. Speaker, I rise today to inform Honourable Members and the general public that the Planning Amendment Act became operational on the 1st September 2018. The amendments seek to improve the enforcement process, enabling the Department of Planning to achieve greater efficiency which will result in effective outcomes.
Mr. Speaker, Bermuda’s planning laws and regulations are in place to ensure that Bermuda’s environment and beauty are not spoiled by rampant development and construction. They are also in place to prevent what occurred a few weeks ago, i.e. the excavating of an historical protection area and the desecration of a number of graves.
Mr. Speaker, the prevailing attitude of many towards developing without obtaining permission is a “build now then ask for forgiveness later” attitude. This legislation seeks to address such an attitude and make it clear that it will no longer be tolerated. Such prevailing attitudes are illustrated in examples of projects that include:
- building living accommodation extensions and a new swimming pool;
- a second storey addition to create an industrial warehouse in a residential area; and
- excavations involving heavy machinery in a historic protection area.
Mr. Speaker, all of these projects were performed without the benefit of planning permission and building permits. In all of these instances, the unauthorised development has either compromised the neighbourhoods, damaged our historic heritage or destroyed conservation areas including areas of woodland. These are all matters that Planning legislation is specifically enacted to protect against. The 2018 amendments will provide the Department of Planning additional powers to take definitive action against those who proceed with unauthorised development, by imposing penalties, including, but not limited to, the enforced removal of already built unauthorised structures.
Mr. Speaker, the Development and Planning Amendment Act now includes the following provisions: -
- To disallow the grant of retroactive planning permission where development has been carried out in breach of planning control, unless the applicant shows - to the satisfaction of the Board - that he was not responsible for the breach of planning control or that, at the time the development was being carried out, he did not know, and could not reasonably be expected to have known, that the development was in breach of planning control.
- Where it appears to the Director that there may have been a breach of planning control in respect of land, a new notice will be introduced known as a “planning contravention notice”. The notice will be served on any person who is the owner, occupier or user or is carrying out any activity on the land, requesting information about the use or activity on the land and requiring such information to be furnished within a specified time not exceeding 21 days. Lack of information has been a severe hindrance with planning investigations in the past.
- If a person is in breach of planning control, the Director may serve an enforcement notice on the owner, occupier or other relevant person. If the person does not comply with the requirements of the enforcement notice within the time-period specified (not being a period of less than 28 days) the person is in breach of the notice. However, if the person appeals the notice within the time specified in the notice, the operation of the notice will be suspended pending the final determination or withdrawal of the appeal.
- A new notice known as a “breach of condition notice” will be introduced, which - once served on a person - requires them to secure compliance with the conditions contained in the notice within a specified time period. Persons that fail to comply with the notice will be in breach of the notice.
- The former “special enforcement notice” has been renamed to simply a “stop notice”. Such a notice is served in those cases where it appears to be in the public interest to require the immediate cessation of any development of land.
Mr. Speaker, there are increased penalties for contraventions to the Act that are determined to be criminal offences, ranging from $5,000 to $100,000 with imprisonment of up to two years.
If a person is guilty of an offence for failure to comply with a notice they could be liable:
- on summary conviction, to a fine not exceeding $5,000, or
- on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine of $25,000 or both, and, in cases of continuing failure, to a further fine not to exceed $1,000 for every day after the first day during which the failure to comply with the notice continued.
Mr. Speaker, when the Department of Planning are notified of a potential contravention of the Act, they will move quickly to investigate and, where contraventions are found, issue the relevant notices to the owner, occupier or agent and contractor.
Mr. Speaker, I would remiss if I do not speak briefly regarding the excavation of human remains at the Military and Convicts cemetery in Sandy's Parish. As you are aware, while the investigation continues in this matter, I cannot discuss the details of the investigation. However I can assure the public that action is being taken on this matter. I must also highlight the fact that no permission was sought to excavate in that area.
I must also inform this Honourable House that currently guidelines do not exist to deal with the possibility that human remains may inadvertently be found on a construction site even when owners have received the requisite permissions. I am sure that Honourable Members will agree that no matter the age of the remains, descendants would want their relatives’ remains to be handled with the highest level of respect and reverence. As a result, The Department of Planning is working with other government departments to produce guidelines to ensure that incidents such as the one that occurred in Sandy’s will not happen again.
Thank you Mr. Speaker