The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Government “will throw The Bahamas back into the chaos of haphazard, checkerboard development” if it goes too far in “watering down” key planning laws, a QC warned yesterday.

Fred Smith QC, the Callenders & Co attorney and partner, told Tribune Business he was “viscerally opposed” to any reforms that “devalued” the Planning and Subdivisions Act at the expense of the wider public interest and environment.

Speaking out after Desmond Bannister, minister of works, revealed that the Government has created a high-level working group to develop “a comprehensive plan” for changing the Act, Mr Smith argued that wholesale reform of “very progressive” legislation designed to “modernise” planning regulation would be a regressive move.

Mr Bannister, in an interview with this newspaper, described some of the Act’s provisions as “onerous” for the Government to enforce - a position shared by many developers. Mr Smith, though, argued that successive administrations only had themselves to blame for this because they had failed to equip the Department of Physical Planning with the staff and skills needed for effective enforcement.

The Government’s failure to enforce The Bahamas’ key planning law was again exposed by a Supreme Court verdict, made in relation to the multiple legal disputes involving Nygard Cay, which has ordered it to produce the legally-required Land Use Plan for New Providence by July 1, 2019.

Mr Smith, though, pointed out that New Providence is the only island currently needing a Land Use Plan. He produced an April 23, 2012, Order which amended the Planning and Subdivisions Act by exempting all other islands - the Family Islands and Grand Bahama (outside the Port area) - from needing a Land Use Plan developed by the Government in consultation with the public and industry.

The well-known QC said the exemption was ironic given that these were the islands “crying out” for properly-regulated development. And he suggested that the “supreme” planning-related irony lay in the Government’s drive to demolish New Providence”shanty towns” when it had failed to “take the first step required by law” - publication of a Land Use Plan for the island.

While welcoming Mr Bannister’s pledge to obey the law and Supreme Court by putting Justice Rhonda Bain’s Order into effect, Mr Smith disputed the Minister’s assertion that some of the provisions in the Planning and Subdivisions Act were too “onerous”.

“The Planning and Subdivisions Act was a very progressive and modern law which the FNM itself legislated in 2010,” he told Tribune Business. “It’s no more onerous then than it is now. The law has not changed. Both the FNM and PLP administrations have had eight years to populate the various government agencies to properly regulate development in The Bahamas.”

Mr Bannister on Tuesday admitted that the Department of Physical Planning, the Government’s main planning regulator, was “clearly under-staffed” with “more posts vacant than filled”. He blamed this on salaries that were too low to attract the necessary skilled employees, suggesting this was one factor behind the Government’s difficulty in enforcing the Act.

This explanation was given little credit by Mr Smith, though, who pronounced himself “very discouraged” by the Minister’s assertion that “there are many provisions in the Act... that have to be considered for amendment”.

“I urge the Minister not to engage in any piecemeal amendments to the Planning and Subdivisions Act because tampering with bits and pieces for expedient, convenient reasons such as an inability to staff will only mess up the construct of a very sensible Act, which was designed to bring order, transparency and accountability and deal with environmental, sanitation and safety issues under one umbrella,” Mr Smith told Tribune Business.

“I am very discouraged by such suggestions because the Act was very well designed, very well thought-out, and Parliament under a different FNM administration passed this in order to modernise The Bahamas and bring some organisation to the confused patchwork of development throughout The Bahamas, but particularly New Providence.”

The Callenders & Co partner said the Government could not now alter the Act to avoid implementing Justice Bain’s ruling, and added: “I am very concerned that not only will it be watered down and devalued for the benefit of developers, but it will throw The Bahamas back into the chaos of expedient political approvals and development as opposed to what was originally intended by having a national land use development plan, island by island like New Providence.

“That is where the focus should be so that when foreign and domestic developers wish to develop they know where they stand, and where they can and can’t go. It will be catastrophic for sensible, organised [planning] for the Government to tinker with the Planning and Subdivisions Act just because three administrations have failed to staff and fund the Department of Physical Planning.”

Mr Smith argued that, “instead of tinkering with the Act”, the Government should instead establish a planning ministry or give the Department of Physical Planning enforcement responsibilities for all major investment projects to ensure developers are complying with the law and their obligations.

The QC, who is legal counsel for the Save the Bays activist group, said one of its core goals was to combat unregulated development throughout The Bahamas. Pointing to the litigation it, and related groups, had launched over projects such as Nygard Cay and Blackbeard’s Cay, Mr Smith said: “All have a common element; trying to get the executive branch to respect the Act passed by Parliament, and provisions that mitigate against secret Heads of Agreement which are inimical to ordinary, planned, transparent development.

“Instead of trying to dismantle the Planning and Subdivisions Act, I urge the Government to provide the resources and finance to the Department of Physical Planning so it can do the job Parliament has given it responsibility for. You can’t flee from it now because of expediency and inconvenience.

“Enforcing the provisions of the Planning and Subdivisions Act prevents political tampering and interference with development. Its transparent, consultative fashion takes away the potential opportunity for graft. I am viscerally opposed, and I urge civil society to discourage any changes to the Act that dilute its intended effect.”

Mr Smith argued that legitimate developers should welcome a strong Planning and Subdivisions Act, and the orderly, regulated development it promises to bring. “It’s not every piece of beautiful virgin territory that a foreign developer is interested in that the Government should be happy to negotiate away,” he told Tribune Business.

“The Planning and Subdivisions Act should be viewed as an opportunity to demonstrate to foreign investors and developers that the Bahamas respects itself and has a plan, as opposed to being a haphazard, checkerboard of expedient development opportunities at the whim of foreign developers.’

“We should be able to plan where and what we want by way of development. We are not a plantation economy. We are not parasites in paradise.”

Mr Smith said the 2012 exemptions meant that the islands “crying out” loudest for Land Use Plans would not be subject to them. “I cannot fathom what the rationale was,” he added. “It can only be to continue to treat the Family Islands as colonies of Nassau, where central government continues to make plans without reference to the residents of those islands.”

The QC said all other aspects of the Act, including compliance with Site Plan Applications, the Buildings Regulation Act and Conservation and Protection of Physical Landscape Act, and submission of an Environmental Impact Assessment (EIA), still applied on the Family Islands.

He added: “It is ironic that Mr Foulkes [minister of labour] and the Prime Minister should be so hot to trot about demolishing shanty towns and redeveloping them for subdivisions for sale to Bahamians in developed subdivisions when there is no Land Use Plan for New Providence in existence as required by law.

“That seems to me the supreme irony; that there are calls to convert shanty towns to regulated development status when the Government has not taken the first step necessary under the Planning and Subdivisions Act to have a Land Use Plan for New Providence.”