Penfold Associates

In May 2014 Sandy Penfold was appointed by the Government of Bermuda to be one of two visiting Planning Inspectors who deal with appeals against Planning Decisions.

As a small island (Bermuda has a population of only 70,000) it is difficult to ensure the impartial review of planning decision using the small pool of local planning professionals and for many years Bermuda has relied on an externally provided Planning Inspectorate.

In larger countries like the UK there is a degree of separation between the decision makers at a local level and the Planning Inspectorate charged with reviewing cases at a national level. It is impossible to achieve this in small islands like Bermuda. The Bermuda Government has therefore adopted the practice of recruiting Inspectors from the Caribbean, the UK and Canada. This system has operated for decades and appears to have served its purpose well. Indeed independent external review gives confidence in the system and could certainly be adopted in other small island states where it is important to ensure the integrity and transparency of the planning system. In the Caribbean, in the same way as the Caribbean Court of Justice has been established as the court of appeal on legal cases, a Planning Inspectorate outside the jurisdiction of individual countries might be an ideal way to deal with this situation. However the tardiness of countries signing up to the CCJ might mean that the Bermuda approach is a more pragmatic way of achieving the same outcome.

The Bermuda planning system (like many throughout the Commonwealth) is based on the UK planning system but has been adapted to suit local circumstances. The Bermuda system as a result has some interesting differences unique to the island. Unlike the British system the Bermuda system is much more prescriptive and has very detailed zoning policies which draw more on the US approach. The most interesting deviation from UK practice is the provision allowing third party appeals against decisions including approvals. This practice is widely used by individuals unhappy about decisions, but increasingly it is being used by interest groups particularly the Bermuda Environmental Sustainability Taskforce (BEST). This makes for a very interesting caseload for the Inspectors.

One of Sandy’s first cases was an Appeal by BEST against the decision to approve residential development at the prestigious Tucker Point Resort. The area of the application was on previously protected land but the Government of Bermuda made a Special Development Order giving in principle approval to the change of use. This case had already been the subject of a third party appeal and had been given approval by the Minister, but was then subject to a legal challenge on the basis that it had not been subject to a full Environmental Impact Assessment (EIA). The judge ruled that an EIA although desirable was not mandatory and recommended that the case be re-heard to allow the appellant to put their case more fully and to address some deficiencies in the original decision making process. This complex and high profile case was heard over two days by Sandy and an appointee from the Civil Service and having heard all of the evidence the Minister was recommended to dismiss the Appeal and approve the scheme.

Sandy has now visited the island twice to consider a wide range of appeal cases and is due to visit again in September 2015. Bermuda is a small country with tremendous development pressure. With the fourth highest income per capita in the world it is a very wealthy county. Before the recession the economy was buoyant with financial services and tourism being key sectors. Both have been hit extremely badly by the recession and the island has experienced 7 continuous years of economic stagnation. However the hosting of the Americas Cup in 2017 is anticipated to give impetus to its flagging tourism sector and stimulate renewed investment and development. As a result it is expected that the next couple of years will present a number of exciting opportunities and challenges for the Government and people of Bermuda and an interesting caseload for its visiting Planning Inspectors.