The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The "onerous" provisions in The Bahamas' main planning law are "no excuse" for the Government's failure to uphold it, a cabinet minister admitted yesterday, amid a renewed push for reform.

Desmond Bannister, minister of works, told Tribune Business that the Government had organised a high-level working group to develop "a comprehensive plan" for amending the Planning and Subdivisions Act after the Supreme Court ordered that its provisions be enforced.

Emphasising his and the Government's intention to comply with the court's August 3 decision, Mr Bannister conceded that Justice Rhonda Bain's order that it prepare a "Land Use Plan" for New Providence by July 1, 2019, had "raised some concerns" within the Ministry of Works.

With Justice Bain's ruling concentrating minds, and forcing the Government to "focus in a way we have not before", the Minister said the working group was expected to deliver its first report on any potential changes to the Act by this November.

He revealed that under-staffing at the Department of Physical Planning, where there are "more posts vacant than filled", was a major impediment to the Government's ability to properly enforce the Planning and Subdivisions Act.

Blaming unattractive salaries for the Government's difficulties in attracting qualified staff, Mr Bannister said successive governments had failed to properly invest in the Department and make The Bahamas' planning regulatory regime a priority.

He added that The Bahamas' economic needs "require we get it right", given that the absence of a Land Use Plan "and the basics required" made it "very difficult" for developers - both Bahamian and foreign - to comply with the law even when they sought to do so.

"The ruling has raised some concerns in my ministry," Mr Bannister told Tribune Business of Justice Bain's verdict, "and as a result of that we have put together a group to take a serious look at the Act itself and the amendments that may be required, and how this whole issue of Land Use Plans is going to be addressed."

The working group's membership includes the heads of all the Government's planning-related Boards and agencies. They are Diane Holowesko-Dunkley, the Town Planning Committee's chair; Pericles Maillis, head of the Town Planning Appeals Board; Charles Zonicle, acting director of physical planning; Melanie Roach, director of public works; and Adelma Roach, the Ministry of Works' legal counsel.

"The former administration had looked at certain amendments to the Act, but we believe there has to be a comprehensive plan for doing so," Mr Bannister said. "All these people are looking at these very critical issue, which has to be addressed comprehensively.

"The judge's ruling gives us a deadline we have to effect it [New Providence's Land Use Plan] by. We have to obey the law, we have to obey the ruling of the court, and are going to do our best to do so."

Justice Bain's ruling, which came in one of the multiple legal battles involving Nygard Cay, has major implications for all land and real estate-related development on New Providence. It potentially impacts all developers and their financiers, plus related professions - attorneys, realtors and contractors being the prime ones.

For she ordered the Government to comply with its own law by preparing a Land Use Plan for New Providence, and setting a deadline of July 1 next year for it to be approved. Land Use Plans are a critical element of the Planning and Subdivisions Act, as it sets out "land to be protected from development".

Land Use Plans are supposed to designate areas identified for residential, commercial, industrial and other purposes, while also segregating areas that should not be developed. The Act also mandates significant public consultation before any Plan is approved.

Fred Smith QC, the Callenders & Co attorney and partner, hailed Justice Bain's ruling on the basis that it will stop the Government and developers from treating The Bahamas' key planning law as "an inconvenient truth" and simply ignoring it.

"It brings the rule of law and regulated development in a real way to The Bahamas," he argued of the Act and the verdict's implications. "It's a very good piece of legislation; one which developers and the executive don't like because it shackles them to process, thereby depriving both sides of secrecy.

"It would bring transparency. It would bring due process. It would bring protection to environmental issues. It would ensure proper consultation with third parties, and be part of a Land Use Plan governing everybody's prospective development and investment."

Developers, though, have been calling for changes to the Planning and Subdivisions Act for years on the grounds that its provisions are too onerous and the Government lacks the necessary resources to properly implement it.

Sir Franklyn Wilson, Arawak Homes' chairman, in a 2014 interview with Tribune Business urged the Government to fix the Act "sooner rather than later" otherwise all development projects would become bogged down in "never ending Judicial Review" actions.

He argued that the Government "absolutely cannot" enforce and implement the statutory processes in the Planning and Subdivisions Act 2010 due to a lack of expertise, resources and manpower.

Acknowledging developers' concerns, Mr Bannister told Tribune Business yesterday that the Government could not use the Act's "onerous" provisions as an excuse for its failure to follow and uphold a law passed by Parliament.

"We believe there are many provisions in the Act that are unrealistic and have to be considered for amendment," he said. "The committee is looking at them and is going to make their first report to me in early November.

"While it is onerous for these reasons, that is not an excuse we can use for not complying with the law. There are two things we are looking at. We're looking at the law to see how we can comply, we're looking at amending the law where there are challenges, and we looking at staffing issues to be able to ensure that staff at the Ministry of Public Works are able to fulfill the mandate the law requires whatever the law may be."

Mr Bannister said the Department of Physical Planning, the Government's main planning agency, was "clearly under-staffed" and struggling to attract the necessary skills to enable it to properly enforce the Act.

"If you look at the organisational chart, there are more posts vacant than filled," he told Tribune Business. "Many of these posts require specialist skills, and the salaries paid for these posts are not commensurate with the skills required.

"We're looking at the organisational chart to see how we deal with that and staff issues. It's a challenge because through the years the investment that ought to have been made in the Department of Physical Planning has not been made."

Despite these challenges, Mr Bannister reiterated: "I intend to comply with the law and the judge's ruling, and we're going to our best to ensure we're in compliance. It's caused us to focus in a way we have not focused before. It's going to take quite a lot to do what we have to do, but it's certainly going to cause us to improve the way we do things."