Hamilton Properties Ltd v Minister of the Environment and Bermuda Financial Centre Ltd 1994 Civil Jur. No. 264

• Jurisdiction: Bermuda
• Judgment Date: 07 November 1994
• Date: 07 November 1994
• Docket Number: Civil Jurisdiction 1994 No, 264
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Ground, J

Civil Jurisdiction 1994 No, 264

BETWEEN:

Hamilton Properties Limited

Appellant

-and-

The Minister of The Environment

First Respondent

and

Bermuda Financial Centre Limited

Second Respondent

Mr. A. Bunch for the Appellant;

The Acting Attorney General and Mr. W. Bourne for the First Respondent; and Mr. N. Hargun for the Second Respondent.

Madeiros v Minister of the Environment 1988 Civil Appeal No. 7

Minister of Home Affairs v FisherUNK [1979] 3 All ER 21

Gregor v London Borough of CamdenUNK [1966] 2 All ER 196

Steeples v Derbyshire County CouncilWLR [1985] 1 WLR 256

R v GoughELR [1993] AC 646

Hall v Bermuda Bar Council 1982 Civil Appeal No. 13

Bermuda Telephone Co. Ltd. v Minister of Communications 1990 Civil Appeal No. 20

Independent Stevedores Ltd. 1986 Civil Jur. No. 9

Development and Planning Act 1974, s. 61

Bermuda Constitution Order 1968, s. 6(8)

Interpretation Act 1951, s. 27

Planning hearings — Bias — Redevelopment of Bermudiana Hotel site

JUDGMENT

This matter concerns an appeal from a decision of the acting Minister of the Environment upholding a decision of the Development Applications Board (‘The Board’) granting “in principle” planning permission for the comprehensive redevelopment of the site of the old Bermudiana Hotel. The appeal is brought under section 61 of the Development and Planning Act 1974 (‘The Act’), which allows any party to proceedings before the Board which have been the subject of an appeal to the Minister and who is aggrieved by the decision or direction of the Minister to appeal to the Supreme Court on a point of law only.

Although numerous points had been raised during the earlier stages of this planning application. most of them do not arise before me. Moreover, the appellant proceeded on their first ground of appeal only, the remainder being abandoned. That ground was that—

‘The decision of the Acting Minister was and is a nullity in that, in proceeding in the way he did, the Acting Minister infringed and acted contrary to the fundamental rights and interests of the Appellant to have its appeal heard and determined by an independent and impartial adjudicating authority as provided for by Section 6(8) of the Bermuda Constitution Order 1968.’

Various factual particulars are pleaded in support of this, to which I will come later.

The upshot of this course of action is that a whole range of matters which are foreshadowed in the record and in the notice of appeal, were not argued before me. Instead the appeal turns upon two quite short points—

(i) Whether section 6(8) of the Constitution applies to planning hearings, and in particular to appeals to the Minister; and if it does

(ii) In the circumstances of this case, was it infringed.

THE FACTUAL BACKGROUND

The facts of this matter are not in dispute. They mainly appear from the record, save that the ministerial tenure of certain of the protagonists came before me by way of agreed facts.

On 29th October 1993 an application for permission to develop land was made to the Board in respect of the Bermudiana Hotel site. The applicant was described as Senator M. J. Winfield. The application was for a ‘300 room hotel and ancillary buildings,’ but a substantial aspect of the overall project was extensive office and conference space. The site is on the Western edge of the City of Hamilton, just outside the city limits. It is presently occupied by a large and highly visible hotel building, which has been empty and unused for some years. Everybody involved in this application, including the objectors before the Board, agree that the site is an eyesore, and should be re-developed. Not surprisingly the dispute is over how that should be done.

The Board required the proposal to be advertised, and when the advertisement appeared the name of the applicant was no longer that of Senator Winfield, but was shown as that of the second respondent herein, Bermuda Financial Centre Limited, a company whose name accurately reflects its aspirations for the subject site. Senator Winfield is a prime mover of this company, being its President and its Chief Executive Officer.

In response to the advertisement there were various objections, including one lodged by the appellant herein, at that time in concert with certain other hotel owners who have since withdrawn. There were also objections from the National Trust and the Corporation of Hamilton. No doubt as a result of the objections, and of the significance of the development, the Board held a hearing on 2nd February 1994. The appellant appeared at that hearing in the person of an engineering consultant and counsel, who both addressed the Board and urged a number of objections of a general planning nature. On the other hand the Director of Planning submitted a report recommending the approval of the application, subject to certain conditions. In the event, after certain further matters with which this appeal is not concerned, the Board eventually gave ‘in principle’ approval, with various conditions (some of which reserved certain matters to the application for final approval) on 16th March 1994. The appellant appealed from that approval, by notice of 8th April 1994, to the Minister of the Environment, pursuant to section 57 of the Act, which provides that—

‘(1) The Director or any person aggrieved by a decision of the Board may by notice under this section appeal to the Minister.’

Shortly after the appeal was lodged the appellant's counsel wrote to the Department of Planning about the way in which their appeal should be heard and disposed of, contending that neither the Minister nor any other member of Cabinet could properly deal with it for the following reasons:

‘(a) It is a well-known fact that one of the prime promoters of the Bermuda Financial Centre is Senator Michael Winfield, who, until very recently, was a member of the Cabinet. The past relationship of Senator Winfield to all members of the current Cabinet is such that for any member of the current Cabinet to deal with this appeal will inevitably give rise to an appearance of bias in the eyes of any right-minded per son. Indeed, we would go so far as to say that any right-minded person would take the view that there was a real likelihood of bias on the part of any Minister that might deal with this appeal given such factual circumstances.

(b) Against the backdrop of the above-stated general point, as things now stand the current Minister of the Environment is himself a Senate colleague of Senator Winfield's and, indeed, he is the current leader of the Government in the Senate. Again, in the eyes of any right-minded person, there is every likelihood that a suspicion of bias would arise in the event that the current Minister was to hear and reject our clients” appeal.

(c) Of equal significance is the fact that the current Minister is employed by a group of companies that has a material and vested interest in the development in question, that group of companies having been a partial source of funding for the acquisition of the property in question.’

In view of these points, the appellant was asking the Minister to dir&t that the appeal should be dealt with by ‘an appointed person.’ That letter sets out the essence of the appellant's case on the bias issue. It does not allege actual bias, but rather relies upon the appearance or likelihood of bias. By its language, and a citation, the document invokes a doctrine of the common law concerning such an appearance or likelihood of bias in decision making bodies, which I...