Expanding Our Record of Planning and Environmental Stewardship

<<< Prime Minister Hubert Ingraham

Part 1 – Planning and Subdivision Wrap Up – PM Ingraham

Part 2 – Planning and Subdivision Wrap Up – PM Ingraham

Wrap up to debate on the Town Planning and Subdivision Bill by Prime Minister the Rt. Hon. Hubert Ingraham:

THE PRIME MINISTER: Mr. Speaker,

I am very pleased that we are finally in a position to bring forward a Bill for an Act to bring order and clarity to planning and subdivision development processes in The Bahamas.

We seek through the enactment of the Planning and Subdivisions Bill, to address a myriad of inadequacies in present legislation, regulations and processes; to broaden the scope of planning to provide for environmental impact assessments, to more effectively regulate the subdivision of land; to facilitate greater involvement by members of the public in the approval process and to ensure that there are real consequences for failure to comply with the requirements of the law.

When the FNM first took office in 1992 we learned early that beach access and windows to the sea were increasingly threatened by development and existing land ownership. We were also aware that this represented a source of increasing social conflict.

We have long been agreed that better arrangements ought to be in place to improve town planning, to protect and safeguard investments in real property whether residential or commercial, to protect and improve environmentally sensitive areas including water bearing land, wetlands and the sea, to preserve access and vistas to the sea, to promote sustainable practices in development and to hold developers including government departments and agencies accountable for the impact of approved developments on the quality of life of citizens.

During two terms in office we made an important start on a number of initiatives.

The Local Government Act strengthened the role of local government representatives in the regulation of town planning and construction beginning in 1996. Prior to 2001 the existing Town Planning Act did not apply to the Family Islands; we extended it to the Family Islands by an Order in 2001.

We introduced a requirement for major development projects to be preceded by EIA and mitigation plans; we enacted the Conservation of the Physical Landscape Act and sought to give teeth to legislation to protect a number of hardwood trees; we expanded the National Park System in Abaco, Andros, New Providence, and Little Inagua; we declared eight specified areas along the northern coast of New Providence “no build areas” and we introduced new no build zones on a number of Crown Cays – 1998 Green Cay (Andros), 2001 Finley Cay (New Providence), O’Brien, Pasteur and Moriah Harbour Cay (in the Exumas).

In 1999 a Town Planning Zoning Order restricted construction to buildings used for the purposes of a public park at two sea-side parks in New Providence: the open green space at West Bay Street and Ferguson Road (Perpall Tract) on both the north and south of West Bay Street, and at Saunders Beach. The same Zoning Order restricted buildings on six other parcels to construction for beach preservation and improvement as follows: land on the north side of West bay Street extending from Coral Drive to Bougainvillea Avenue and on to property known as the Moorings (Go Slow Bend or Brown’s Point) and continuing in a westward direction on the far side of the Moorings (open space opposite Sea View Drive); the sea side park at Goodman’s Bay; the beach access at Delaporte (next to Poop Deck Restaurant and opposite Sandy Port); the sea side Park at Delaporte (next to BTC complex) and continuing on the western side along Sea View Beach; and finally the vista to the sea and beach access running along West Bay Street from Rock Point to Caves Point Condominiums.

Honourable Members may recall that it was planned at that time, in 1999, to create the beach side public park at Saunders Beach which is only now proceeding. The work at Goodman’s Bay is the most visible testament of that early period.

A similar but smaller beach experience was to be created at Caves and Orange Hill Beach and additional “no build zones” were to be identified along the southern coast of New Providence. And we created the new Bone Fish National Park in southern New Providence thereby placing extensive wetlands under protection.

Today, having previously identified 64 windows of the sea, we continue toward our goal with works at Saunders Beach, Yamacraw Beach, and throughout New Providence.

I speak of what we DID, not the studies we undertook.

The Bill before us provides for access to the sea as part of the land use and development approvals. What we seek to do is to ensure the creation of windows to the sea and access to beaches becomes and remains a permanent right of Bahamians. This Bill codifies in law our practice and firmly held conviction that our heritage to the sea is preserved; and the “beach access” signs around New Providence are a constant reminder.

We also, since 2007 began the creation of a network of marine protected areas (MPAs). That initiative, as our initiative to identify and mark all public access to the sea on New Providence, has been taken up and expanded upon since our return to office in 2007. Honourable members will be aware that the first 5 of the MPAs have now been agreed.

A number of Honourable Members have commented on the nightmares created for their constituents by a particular failure in our processes to safeguard the tranquility of their neighbourhood, to assist in the restoration of a family homestead, to guard against the invasion of business and industry into residential or farming communities, and to safeguard investments in newly approved subdivisions that lack basic infrastructure – paved roads, water, electricity and telephones.

The list is long. I believe that it is important that we move to address these inadequacies now. I do not believe that we have the luxury of time. As in most things in life we need to have more than one iron in the fire; we must move forward on more than one aspect of this exercise at the same time.

We began the journey to improve our town planning process almost immediately following my Government’s first election to office in 1992.

One of the earliest tasks of The Bahamas Environment Science & Technology Commission was the formalization of the EIA process for large scale resort and industrial developments in The Bahamas.

Another early project was the resurrection of Land Use Plans. The Ministry of Public Works – more specifically the Department of Works, the Department of Physical Planning and Building Control were called upon to dust off Land Use Plans undertaken in the 1960s and neatly stored on shelves, left there by the UBP.

In 1997 we retained the services of Martin Martini’s Firm, Proctor & Redfern International Ltd., to undertake a review of zoning orders and land use plans for New Providence. Mr. Martini’s consultancy involved consultation with Public Works, Physical Planning, Lands and Surveys and the BEST Commission – consultations which were not as smooth as might have been given the predisposition of some in the public sector to resist change and to see outside consultants as needlessly intrusive.

In 1999 we accessed funding from the IDB to improve the EIA process. It is a curious truth that we have found it easier to apply EIA standards and requirements to large, foreign-owned developments than to Bahamian-owned developments regardless to the wealth or capacity of the Bahamian developer concerned. It is not the foreigner who is building subdivisions, it is Bahamians.

We also introduced/expanded the practice of holding Town Meetings to discuss developments likely to impact life styles and standards of living. Many remember the town meetings to discuss the development plans for Clifton Cay and the Ship Repair Facility in Grand Bahama and may believe that these came only as a result of public pressure at the time. The reality was that town meetings to discuss much smaller proposals with smaller impacts upon neighbourhoods were also held during the 1990s– to build an Embassy in a residential community for example, or the development of a cement block plant in what had been a residential/farming community to name just two.

We now propose to require the holding of Town Meetings prior to the approval of major developments. (Expounds on BEC Wilson City and Eleuthera Power Plants)

It is suggested by some that this Bill may still be too early; that land use plans ought to be completed for each of our islands before the enactment of this legislation.

In The Bahamas for some people change is either too early or long overdue.

General land planning guidelines prohibiting construction in wetlands, requiring agreed setbacks for construction – from boundary lines, from the roadway and from the high water mark; preservation of vistas to the sea and access to the beach; prohibition of backfilling of wetlands, prohibition of excavation without permits or of land clearing without permits and without due care and attention to protect listed protected trees will now all be codified and put into Regulation. We know where our forests exists and as indicated by the Minister in presenting this Bill, the companion Forestry Bill will soon be posted on the Government website for review and comment by the general public and interested parties.

Inevitably, someone suggests that more consultation must be had or some individual announces that he or she, or some organization has not been consulted on proposed amendments to legislation or enactment of new legislation.

I am coming to believe that unless the Minister Responsible speaks directly with some individuals and adopts “in full” whatever their view is, they will claim not to have been consulted or offered an opportunity to voice their views.

The President of BREA informed both daily newspapers that he wrote me recently with recommendations on this Bill. If, or when I receive his letter I’ll respond. You know, some people wear their politics on their sleeves seek to cloak their partisan bias in the respectability of speaking for non-partisan entities. For such persons I have no regard.

The Planning and Subdivisions Bill has been on the Ministry of the Environment’s webpage and the public invited to review and comment upon it since June, 2009 – nearly four months ago.

A number of NGOs have also distributed the Bill among their membership inviting them to comment thereon and to submit recommendations.

Recommendations for amendment to sections of the Bill have been received from land developers, architects and from members of the Town Planning Committee.

A number of law firms have also taken the time to review the draft legislation and submit recommendations for its improvement. This is welcomed and encouraged.

Some very useful recommendations to strengthen the Bill include recommendations to require traffic impact studies; others calling for provisions that would permit construction in a flood prone area subject to the floor of structures being above the high-water mark and/or the developer being required to create drainage pools and or grade lines to permit flooding of defined areas.

I assure that all views received will be considered and if accepted will be included in the legislation prior to its final passage and promulgation. Already there is agreement for example to improve on a number of definitions contained in the Bill and to define additional terms associated with land clearing and development.

I note that some in our community have made representation that this Bill will increase costs for developers and hence stall development especially now during the global economic downturn.

The Bill will do no such thing; instead the Bill will bring order to development and prohibit bad environmental and planning practices endured for far too long.

One of the most beneficial aspects of this Bill is that when enacted and enforced it will significantly reduce the time, and hence the cost now associated with obtaining Town Planning approval for the construction of a home or duplex in an approved subdivision.

Provisions contained in this Bill will enable individuals seeking to construct a residence in an approved residential subdivision to make a single application to Building Control Unit, pay the requisite fee for their permit and proceed with the construction of their residence.

This aside, a bad development decision is bad whether we are in good or bad economic times. Requiring developers to meet minimum standards, install infrastructure, provide access to all essential utility services, prohibit development on wetlands, and ensure that developments do not cause unsustainable damage to our natural resources cannot be reserved for good economic times only.

Individuals investing in property and constructing residences during lean economic times require and expect that they will receive good value for money. As a Government, we have an obligation to provide reasonable safeguards by law and regulation and enforcement, to ensure that people do receive value for money spent.

I find it of interest that some Members Opposite have used their contributions to this debate to highlight issues which they believe ought to take priority over Town Planning and Subdivision Development. Some questioned whether the Bill would increase employment; another was concerned with whether the Bill contained a hidden tax; still others wished to know whether the Bill would remove obstacles associated with development of Commonage Land and by some manner closed fishing seasons were also raised. And then, the Member for Englerston used her contribution to highlight her deep concern for the large amounts of land that have been and are being sold to foreigners under the International Persons landholding Act.

My Government may not disagree with Members Opposite that the matters raised by them are of consequence to the people of The Bahamas. I find it curious however, that in their most recent single term in office, these matters, of such great import now, were not addressed by them when given the opportunity to do so by the Bahamian people.

During the last Budget exercise I had the occasion to remind Members Opposite that notwithstanding their fondness for attacking the International Persons Landholding Act in Opposition, they had done nothing to amend or repeal the Act when in office. I reminded them that in Government they had been especially fond of coming to this place to report on the tremendous success they were experiencing in selling land to international persons for the creation of high-end residential gated communities. The only explanation that I received came as I recall from the Leader of the Opposition who suggested words to the effect that his Government did nothing to change the law because the economy was benefiting so significantly from the provisions of the Act that they did not want to mess with the proverbial Goose and its golden eggs.

We repealed a draconian law that stifled investment and stunted the real estate market, and replaced it with the International Landholding Act in 1993 because we believed that it would be good for the Bahamas and good for the Bahamian people. And so it proved to be.

However, having watched Members Opposite abuse the provisions of the law during 5 years in Government we undertook amendments to that law since returning to office in 2007, reducing the amount of land that international persons might acquire in The Bahamas without obtaining the prior approval of the Investments Board. That is what a responsible, responsive and caring Government does. And because we are a responsible, responsive and caring government we have in this term of office introduced an unemployment benefit, created a new labour training programme, increased social assistance programmes, offered special assistance to restore electricity service to families most impacted by the economic downturn, and accelerated a number of large scale public infrastructural development projects to stimulate economic activity and job creation during these tough economic times.

And no, there is no new hidden tax contained in the provisions of the Bill before you.

I understand the fear associated with change. Fear of change is perhaps inherent all the more so when one seeks to reform long standing legislation and procedures. Those who have learned to live and work and make a handsome living in an old system, or the lack of a system, are nearly always unwilling to learn a new way. Still, if we are to become better – and we must, we must change.

In this regard, I revert to an earlier comment regarding the application or observation of the law by Bahamians as opposed to foreign persons.

It has become routine and easy for us to demand a high environmental standard of international persons undertaking developments in our country. Similarly, the greatest care is taken today to ensure that all environmental safeguards and building code requirements are scrupulously followed by our foreign investors. Similar requirements applied to a Bahamian national often enough results in a barrage of protests and allegations that the government is stifling the initiative of a Bahamian who is “only trying to make a living”.

We use that justification to build residences in unapproved subdivisions or in subdivisions with no evidence of infrastructure installation; to build a duplex in a single family residential area; to operate a shop out of a converted car garage or to convert a residence into an office – again in an area restricted for residences only; to open a restaurant in a residential area and then introduce unauthorized loud music and outside seating; to run unauthorized and unlicensed street stalls; to hold unauthorised “sidewalk sales” or to place billboards on sidewalks obstructing pedestrians and creating congestion, to operate impromptu fish or crab stalls any and everywhere; … The number of infractions of town planning regulations that are tolerated, indeed, excused, is astounding to say the least.

Efforts by the Department of Physical Planning to require the observance of the building code requirement that boundary walls not exceed 4.5 feet in height along a roadway is observed in the breach – even by some members of this Honourable House and by many leading citizens.

Similar efforts to have citizens not backfill wetlands or excavate hills on their property, or to not informally subdivide plots of land, or build too close to a boundary line are routinely ignored as an intrusion on the rights of a land-owner.

Yet many such culprits are quick to point out the infraction by another.

All are agreed that we should not disturb reefs or important grassy sea bottoms that are important habitats and nurseries for certain species of marine life – until someone desires to dredge a channel for a marina or reclaim an area of the shoreline for some other purpose!

Efforts to conserve and protect historic buildings in our country have been frustrated because too many owners practice what is called “demolition by neglect”. The number of important architectural examples from our past which dilapidated condition today mar our city landscape is inexcusable and a shame quite frankly.

And, we create subdivisions and build low and medium income housing in flood prone areas and then fane shock and surprise that the houses flood, the foundations shift and walls and ceiling crack.

I do not suggest that it is the private sector alone which practices such abuse; it is also the Government.

One of my early initiatives in 1992 was to insist that the Government should lead by example.

I was appalled to learn that the Government seldom followed the rules for town planning. For example the Government increasingly by 1992 routinely failed to apply for building permits for government projects. This meant that the record of building starts and completions did not always include government construction.

And, the Government flaunted building regulation – using metal roofs on Government buildings in the heart of Nassau (the Houses of Parliament!) even while it required the private sector to use wooden shingles. For all our efforts, I am assured that the abuse of town planning regulations by agents of the Government is not tremendously better today than it was in 1992.

Some subdivisions have been built upon low-lying ground with inadequate attention paid to the obvious consequences of building residences on low-lying ground with no natural drainage and inadequate artificial drainage installed. We have too many such subdivisions in New Providence but also elsewhere around our country.

But Government’s failures have not been restricted to housing subdivisions. We are now seeking to remedy the construction defects in the new Mortgage Corporation Building on JFK Drive to accommodate the Ministry of Tourism and related agencies. The building was constructed with wall-to-wall windows that are not of hurricane resistant strength and which cannot be fitted with permanent hurricane shutters! The original plans called for hurricane resistant windows and got changed. The cost of replacement of the windows is now prohibitive. And it seems that notwithstanding the time of its design, no effort was made to introduce green construction elements – the use of solar energy for example.

And so, I do not agree that this Bill is too early or that we will not be able to fulfill its requirements. We must. We cannot afford to continue to postpone the adoption and enforcement of adequate standards for town planning and subdivision development. We postpone it at our own peril.

I am this week in receipt of a letter of complaint from a property-owner in Bahama Acres in Exuma – an old subdivision whose developers may no longer reside in this country. The individual cannot understand or accept that the Government and the Court system are powerless to cause developers to acknowledge liability for selling flood prone land as residential sites. And, like residents in a number of approved subdivisions in New Providence, the home owner wants to know if and when the government might assume responsibility for the maintenance of roads in the subdivision – roads that have never been brought to the standard required to transfer them to the government.

This Bill seeks to codify an improved standard for our town planning and subdivision approval. This Bill when enacted and brought into force will apply to development in New Providence and eventually to development in every Family Island.

This Bill when enacted will provide greater assurance that developers will not be permitted to develop subdivisions in unsuitable locations or to sell lots prior to the installation of required infrastructure.

The provisions in this Bill increase transparency in the approval process permitting those who are likely to be most impacted by a development to view and comment upon the proposal, to raise objections and to have their objections heard.

This Bill seeks to safeguard the rights and investments of land-owners who fear depreciation in value of their property due to unauthorized, unsuitable ‘change in use’ of adjourning properties, giving such individuals an opportunity to comment on and to seek to influence applications for such changes in use of property.

Some people have suggested that the enactment of this Bill requiring approval for the subdivision of a plot of land into more than two pieces will prevent some bequeaths, involving the division of land among heirs as stipulated in a Last Will and Testament, from being executed. I suggest that we consider why an individual ought to be permitted in law, to do with his land in death that which he could not do in life. Good planning principles dictate that the heirs in such cases must be required to obtain the appropriate approval to subdivide the land.

People have long complained, and rightly so in many cases, about the inordinate delays incurred in obtaining requisite approvals for applications submitted with regard to the development of subdivisions and/or for construction.

We seek in this Bill to introduce a novel provision in the context of The Bahamas with regard to applications and approvals. This Bill contains a provision that exists in many developed societies which stipulates that once a completed application has been submitted to the appropriate authority together with all required information and documentation, a decision must be conveyed within a four month period. If a decision is not rendered within that period the application may be deemed to have been approved. The applicant will then be entitled to pay the requisite fees and proceed with his development.

The enactment of this Bill will clearly require substantial changes in personnel at the Department of Physical Planning. We have already begun the planned increase in the allocation of funding to the Department of Physical Planning and such increase in resources for the Department will become more evident in the next Budget cycle and before, in the mid-year budget exercise.

We have already advertised in The Bahamas to fill a number of vacancies at the Department. The response has been disappointing.

We will now proceed to advertise vacancies outside of The Bahamas in an effort to fill the posts of Chief Physical Planner and other posts with a view to ensuring that the Department is properly staffed to administer this law and planning generally.

Additionally, personnel, trained in planning and environment, will be engaged in most Family Islands to ensure appropriate approval and oversight of development.

I wish to say that we propose to bring this law into force in phases as we are in a position to enforce its provisions.

I also advise that we propose to hold a series of town meetings in New Providence and in the Family Islands most especially for local government and public officials but also for the general public so that all interested parties are given further opportunities to have their queries addressed.

The Government of The Bahamas owns some 2/3 of all developable land in The Bahamas; so the Government must have an interest in its appropriate and sustainable development. We accept that we are not always in a position to alter what has been done in the past but we are committed to positively influence what will take place in the future.

In this regard I note that the Bill contains provision to bind the Crown; that is, the Government is bound by the Bill.

I repeat my comments made at the time of the introduction of the Conservation of the Physical Landscape Act in 1997: “My Government recognizes and accepts that development is necessary for the progress of our people. My Government also acknowledges that such development necessarily create demands for the use of resources and some reconfiguration of land-forms from time-to-time. This Bill does not seek and will not stultify responsible development.”

“This Bill is not designed to prohibit activities necessary for orderly, responsible development, but rather to regulate necessary activity. In short, this Bill when enacted will strengthen our legislation and indeed strengthen our national will to support and abide by legislation once it is enacted.”

Finally, I wish to say that my Government does not intend to proceed with final passage of this Bill today. The Bill will be left in Committee so that all suggestions and recommendations for its further amendment can be considered and some determinations made and amendments proffered.

When entered into force in its entirety, this Bill will repeal the Town Planning Act (Ch. 255), the Private Roads and Sub-divisions Act (Ch. 256), the Private Roads and Sub-divisions (Out-Island) Act, (Ch. 257) and the Regulations made there under and the Conservation and Protection of the Physical Landscape of The Bahamas (Quarrying and Mining Zones) Order, 1997 under section 16 of the Conservation and Protection of the Physical Landscape of The Bahamas Act, (Ch 260).

We expect to have final passage by the end of this year.