SDOs: Vital tools or abuse of system?

Far from being an emergency measure for projects of urgent national importance, an inventory of SDOs since 2001 shows they have become the norm.

Critics say the Tucker’s Point resort’s bid to build new luxury condos and town houses on pristine hillside overlooking Castle Harbour is just the latest effort by a hotel developer to rewrite the island’s planning regulations in the name of tourism.

A slew of promised hotel developments — including the St. Regis in Hamilton, Coco Reef in Paget and the Grand Atlantic Resort in Warwick — have been granted permission to build higher and with fewer restrictions than ever before.

Environmentalists won significant victories to prevent developments at Warwick Long Bay and the Southlands estate.

But they fear they are fighting a losing battle against a Government that is determined to attract new hotels to the island – whatever the cost.

Both Greenrock and the National Trust have questioned whether SDOs are being used inappropriately to push through developments they say would never stand up to the rigorous public scrutiny of Bermuda’s planning regulations.

And they fear SDOs - initially designed for projects of obvious national significance such as bridges and hospitals - have become a tool to pursue a pipe-dream of resurrecting a dying tourism industry at the expense of the island’s natural beauty.

Andrew Vaucrosson president of Greenrock said the fight to save open space was more than just a green issue.

He said it affected everything from traffic congestion to crime and social problems.

And he warned that Bermuda’s planning regulations were agreed through a painstaking process of public consultation and should not be bypassed unless a compelling case could be made.

Dr. Jennifer Gray, director of the National Trust, said the majority of SDOs granted in the last decade had been for large scale tourism developments.

“Despite the urgency expressed at the time that these instruments were given, many have not come to fruition. With so many derelict and vacant brownfield tourism lands sitting idle, we cannot see any justification for destroying virgin, biodiversity-rich lands like those in Castle Harbour for the purpose of the revitalisation of tourism.”

Of the 26 SDOs issued since 2001, 16 of them have been for hotel or condo developments, sparking questions over what criteria is used to establish issues of ‘national importance’.

“Any exceptions, through SDOs, should be rare – for national security, for a hospital, for roads and bridges,” said Mr. Vaurcrosson.

“The fact that we are now saying tourism’s future is contingent on one property development and that makes any given development a plan of national importance – it’s a stretch.”

Real estate deal

Further questions have been raised over whether many of the developments pushed through via SDOs are ultimately beneficial to the tourism industry.

The revised Tucker’s Point order that finally got through the legislature on Monday was essentially a real estate deal. There were no hotel rooms in the final plan.

Almost every other hotel development has included a large residential component.

In a 2007 paper, which Greenrock still cites as its position on SDOs, David Zuill wrote: “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.”

In the midst of the debates that have raged over the series of controversial plans, one man has been a constant voice for the environment. Stuart Hayward has been a busy man recently.

But Mr. Hayward, who founded the campaign group BEST, believes he, and others who care about the island’s open spaces, should not have to resort to a megaphone and a plywood sign to make their point.

“There should be a clear set of criteria for which an SDO can be granted. There should be a mechanism to discuss it, an attempt to get public input and a forum for questions and alternatives to be discussed.

“You can’t just use the words ‘national importance’ and expect that to be enough. Not if we are moving towards more open democracy.”

Groups like BEST and Greenrock have cautiously welcomed the move by Mr. Roban to put SDOs before the House as an improvement on previous regimes.

Former Premier Dr. Ewart Brown aggressively pursued developers making a ‘new hotel for Bermuda’ one of the key targets of his time in office.

In four years his administration granted 11 SDOs. The majority were sanctioned for tourism-related projects, through Government Notice, without public consultation.

The new system requires parliamentary debate. But pressure groups have warned that it still retains a political element that skews the argument.

Critics have argued that the complex long-term balancing act required to protect Bermuda’s diminishing open space is best left to professionals in the planning department.

A new hotel may allow politicians to declare a vote-winning platinum period for the tourism industry but the long-term effect on the environment would be a problem for a future regime.

“At some point we are going to have to start considering the environment as being of ‘national importance’,” Mr. Vaucrosson said.

“Parliamentarians are not planners. The people who you want to be managing your plan are the people who have expertise in that area so that it is done smartly, so that it is a long-term consideration and not just a knee-jerk reaction to an immediate problem.”

One of the biggest complaints about the rate at which SDOs are being used is that they undermine the ‘big-picture’ planning – set out in the Bermuda Plan – a comprehensive document designed to balance development with the needs of the environment.

Dr. Gray added: “A good planning system, like that in Bermuda, is designed to manage the island’s resources wisely by setting out what can be built and where and is established by way of a massive and painstaking island wide public consultation (The Bermuda Plan).

“This is done to ensure that Bermuda’s residents have a well-designed environment in which to live, work and play whilst safeguarding our natural, cultural and historical environments.

“This is a balancing act but it is essential that we have an effective, and adhered to, planning system, to achieve a sustainable and balanced society.”

Greenrock has argued that SDOs are consistently being used to ‘end run’ the planning process pushing developments through without the necessary public input or impact studies in a bid to avoid red tape.

Until recently the Bermuda Plan, reviewed every five years, has not been rewritten since 1992.

Mr. Vaucrosson added: “The reason so many SDOs came to the surface was because of a failure in ensuring the planning process was properly supported – we had an outdated plan which guaranteed some applications wouldn’t get accepted.

“Now the current Government has got used to using SDOs as a way of bypassing planning.” 

He accepted the planning process could be prohibitively cumbersome for would-be developers. But he insisted that was not an excuse for skipping it altogether.

“The DAB process has a reputation for taking a long time.

“The right way to deal with that is to improve the process.”

Special report: Special Development Orders

• SDOs: Vital tools or abuse of system?
• SDOs explained
• SDOs: The good, the bad and the ugly
• SDOs seen by government as vital tools to help economy
• It's up to Tucker's Point to prove SDO was worth it

What is an SDO?

A Special Development Order is a planning tool that can be used to allow building projects that would not ordinarily be approved because they don’t fit within the Bermuda Plan.

They can be used for developments which may exceed the building height allowed by the plan or fall outside the zoning (e.g. for a hotel to be built on land earmarked for conservation).

What’s the Bermuda Plan?

The Bermuda Plan is a document, intended to be reviewed every five years, which is designed to form a comprehensive guide to what can be built in Bermuda and where. It is produced through an extensive public consultation process and is used by the Development Applications Board as the guide to determine whether any application can be approved or not.

The object of the Bermuda Plan (last updated in 2008) is to provide a clear blueprint for how we balance the competing needs of development with the preservation of the island’s open space.

So why do we need SDOs?

Even the critics of SDOs accept that they are required in some circumstances. There is potential for developments that the document had not considered or plans of national importance. They are also used in other jurisdictions, such as the U.K.

Are there any guidelines on how and when SDO’s can be used?

There are no specific regulations in law on how SDOs should be used although Government insists it has clear and transparent procedures. The Development and Planning Act 1974 (section 15) states that the Minister has the authority to make an SDO that grants planning permission for a development as specified in such Order.

During the Tucker’s Point debate Environment Minister Walter Roban said: “SDOs are regarded, by their critics, as a way to circumvent the normal planning process, but they are, in fact, an important tool for the Minister to respond to strategic, national issues and to the development needs of the day.”

So what’s the problem?

The main issue lies in the interpretation of ‘national importance’.

Critics argue that concerns over the future of tourism (the ‘national priority’ cited for the overwhelming majority of SDOs) should not be used to justify any and every hotel development.

They cite the fact that 26 SDOs have been used in the past ten years as evidence that such orders are being overused by the Government to fast-track new hotels without public consultation.

They believe the Bermuda Plan – which is supposed to be reviewed every five years with massive public input — is the place for any development issue to be debated and argue that exceptions, via SDO, should be rare.

Government has argued that tourism is so vital to the national economy that it must be seen as of ‘national importance’ in some cases.

So what’s the solution?

Government has recognized that the SDO process was cause for concern. Previously SDOs could be approved at the whim of the Minister of Environment but a new amendment submitted by Mr. Roban now means they are debated in the House of Assembly and the Senate before being approved.

Critics accept this is an improvement but believe it does not go far enough and that the real solution lies in stronger support for the planning department.

Special report: Special Development Orders

• SDOs: Vital tools or abuse of system?
• SDOs explained
• SDOs: The good, the bad and the ugly
• SDOs seen by government as vital tools to help economy
• It's up to Tucker's Point to prove SDO was worth it