Ombudsman clarifies Tucker’s Point Graveyard recommendation

Arlene Brock, Ombudsman for Bermuda will investigate why her February 2012 recommendation to ensure protection of the tombstones on the Tucker’s Point property was not implemented by the then Ministry for the Environment, Planning and Infrastructure Strategy.

Ms. Brock stated: “Our investigation report – Today’s Choices: Tomorrow’s Costs – devoted six pages to the history of Tucker’s Town. Our research found that “building” is defined in s.1 of the Development and Planning Act as including “any structure or erection of a permanent or semi-permanent nature and any part of a building as so defined…” Accordingly, I recommended:

1(e): List the graveyard as an Historic Building under s. 30 of the Development and Planning Act (DPA). (Although already referenced under s. 31 as an Historic Protection Area, a s.30 listing would add status and an extra layer of protection.)”

Ms. Brock clarifies the statutory process: “The Government is required by s.16 of the Ombudsman Act to respond to all Recommendations – either (a) what action has already been taken to implement the recommendations; (b) what action is proposed in order to implement; or (c) written reasons for not implementing, if the Government rejects recommendations.”  

Today’s Choices: Tomorrow’s Costs was tabled on 10^th February 2012. The Government formally responded on 1^st May 2012. After due consideration of the responses to each recommendation, the Ombudsman tabled the Government’s response in the House of Parliament on 1^st June 2012.  

With respect to the graveyard recommendation, the Government repeated that the site is within an Historic Protection Area under s.30 of the DPA and set out proposed steps to implement the Ombudsman’s recommendation:

The Minister of the Environment, Planning and Infrastructure Strategy will consult with the property owner as required by the Act, the Historic Building Advisory Committee, the Department of Planning and other relevant interests.  On completion of the review the Minister would have the information to assist in making a decision on the recommendation to add Tucker’s Town Cemetery to the list.  

Ms. Brock assessed the Government’s response as “appropriate and adequate” and noted:

S.31 zoning as an Historic Protection Area can be changed by the development plan zoning process. Listing as an Historic Building under s.30 of the DPA adds another layer of protection to the site which does not entail a planning application. What is the timeframe for due diligence before decision?

While her question regarding the deadline was not answered, Ms. Brock stated today: “as of June 2012, there could be no doubt – in the understanding of the Government, the owners and the public – that the Government had agreed to commence the administrative process required to list the graveyard as a s.30 Listed Building.  

To be clear: I did not recommend that the Government begin a process that might eventually result in listing. Rather – I recommended that the gravesite be listed. The Government did not reject this recommendation.  S. 30 of the DPA allows for the Minister to list immediately and then complete the administrative process, including consultation, within 90 days.

Late last summer I informally asked a senior Planning officer whether this recommendation was being implemented and was assured that it would be. Generally, my formal follow-up for the large systemic reports is one year after tabling – in recognition of the fact that time, policy changes and even legislation may be needed to give effect to some recommendations.

Since then, members of the public have expressed concerns about the condition of the tombstones and we have now received a formal complaint alleging that the Ministry and/or Department of Planning may have acquiesced in unauthorized alterations to the graveyard and have not consulted all relevant interests.   

Accordingly, I will conduct an investigation into: this complaint; the delay in implementing my recommendation; and, related questions.”