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Chaplin Estate

Threat to protected woodland on Harbour Road, Warwick
On June 27, 2003 one of the most vital tools for land conservation and protection in Bermuda, received a devastating blow in the Court of Appeal.

The Section 34 Agreement created under the 1974 Planning Act provides a means by which land can be protected forever through a formal covenant between the property owner and the Minister of the Environment. These are permanent and apply to subsequent owners of a property. They can be created as a condition of obtaining planning permission or simply when a landowner wishes to permanently protect the property in some way.

In 1988, Oona, LadyChaplin subdivided her property off Harbour Road, Warwick, to create two residential lots. In exchange for planning permission to create the lots, Lady Chaplin made a Section 34 Agreement to permanently protect the northern portion of the property, zoned Woodland Reserve, from future development. The subsequent purchasers of the lots made three applications to the Development Applications Board (DAB) to gain permission to put in a new access road through the Woodland Reserve in 1998. The Trust objected in each instance and each application was refused.

A fourth attempt to gain permission, begun in November of 1999, has ended differently. Acting on advice submitted by the Minister himself in the course of denying their third appeal, the lot owners made a joint submission for a new access road through the protected area. The Trust objected. Once again, the DAB refused to grant the application. On appeal to the Minister, however, permission was granted for the road. The Trust took legal recourse, appealing to the Supreme Court. The Court overturned the Minister’s decision basing its decision in large part on the ‘permanent’ nature of Section 34 Agreements.

In June, 2003, an appeal was made to the Court of Appeal by the lot owners and the Ministry of the Environment. The appeal focused on the nature of the Section 34 Agreements and whether they were subject to ministerial alteration. On June 27, 2003, the Appellate Court reversed the decision of the Supreme Court and reinstated the Minister’s decision. It is evident that the Court believes that the Minister has the power to alter or completely overturn Section 34 Agreements. The implications of this decision are obvious and grave and unfortunately could extend far beyond one despoiled hillside in Warwick. The question arises: What protections remain to the other 119 properties or 189.7 acres protected under Section 34 Agreements?

Subsequently, the Trust filed its intent to appeal this decision to the Privy Council. However, after careful consideration the Trust chose not to continue with its appeal to the Privy Council for two reasons:

• Much of the relevant case law cited in the decision of the Court of Appeal was drawn from British law, offering the Trust little chance for success with the Privy Council;
• Potential costs to the Trust could be prohibitive and possibly ruinous.

The Chaplin Estate decision declared that the Minister of the Environment has the right to alter Section 34 Agreements.  At this time the Trust has chosen to devote its time and resources into exploring avenues to provide permanent protection of land.

Updated: January 1, 2004