(CNS): A judgment delivered earlier this month by a Grand Court judge has refused previously granted planning permission to a potential Seven Mile Beach ten-storey condo building because the judge found the existing laws and regulations relating to buildings of that height are incompatible. Overturning a finding of the Planning Appeals Tribunal and the original approval by the Central Planning Authority, Justice Seymour Panton said the CPA had erred in law in relation to setbacks and recommended that government address the shortcoming relating to the 1997 Development Plan and the planning law regulations.
The judge fund that the setbacks relating to a ten-storey development on the beach are not clearly defined in the regulations, which only accommodate setback distances and other important considerations for up to seven storeys. He further noted that the CPA’s failure to explain how it arrived at the decision over the setback for the property in question, especially in the face of objections, was wrong in law.
See Viewpoint by Stuart Rowe, Senior Counsel, Walkers: Ten storeys: setbacks and other restrictions
The judge’s findings in the case of Grand View Strata Corporation v The Planning Appeals Tribunal, delivered on 8 April, come in the wake of recent Public Accounts Committee hearings on a report by the auditor general relating to the myriad failures of successive governments regarding national development and what Alastair Swarbrick, the former auditor general, called the loss of government control over planning, which had been left in the hands of the private sector. He also pointed to the CPA’s failure to explain its often arbitrary decisions that almost always favour developers.
The judge’s ruling indicates that the CPA cannot make decisions about setbacks without an explanation and it is unlikely that it will now to be able to lawfully approve any more ten-storey buildings on the waterfront along Seven Mile Beach until the regulations are altered to provide the appropriate setbacks for higher buildings. The judge also made it clear that, despite the age of the national development plan, which has not been reviewed as required in law, it is still in force and the CPA could not ignore the requirements of that legislation.
PAC Chair Ezzard Miller said the judge’s ruling reflected what are likely to be PAC’s findings, as it underscored the point that the CPA does not have the wide discretion its chair appeared to believe it did when he appeared before the committee.
“This reinforces what the PAC report will say, which is that government needs to review the national development plan and regulations in concert with the law as a matter of urgency,” Miller said.
The ruling has now created certain inequities as planning permission cannot be given now to proposed developments over seven storeys, while the Dart Group’s new hotel is twelve. Miller pointed out that the developer raised the ground level of the development to accommodate to underground floors in addition to the ten storeys. He said government must also address the issue of the ground level as the Kimpton hotel has made a mockery of the planning law.
The PAC chair also pointed to the problems created by the piecemeal re-zoning that he believes is in contravention of the law and preventing the necessary public input. Miller said it wasn’t just the regulations that clearly needed to be changed; he said the culture of making a developer’s wants and wishes fit the planning law had to stop.
“We cannot continue to allow the CPA to bend the law to fit the needs of developers,” he said, as he indicated the rule bending was almost always for international developers and never for locals wanting to build a home.
“The chair of the CPA seems comfortable doing wrong by the law as long as — he said before PAC — everyone else is,” Miller told CNS. “But government must address this promptly.”
In his ruling, the judge warned that there cannot be an “anything goes attitude” towards the national development plan and planning regulations. He also criticised the CPA’s position that they were not “slavishly following” the national development plan as he said regardless of how old it was it was still in force.
Justice Panton made it clear that on a small island, issues such as beach setbacks were very important and the CPA were wrong to suggest a ten-storey building did not require greater setback than a seven-storey one. He said that the regulations at present do not provide for anything over ten storeys and as a result nothing should be approved over that height until it is addressed.