The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An outspoken QC has warned the Government against returning real estate development “to the dark ages” by replacing the Planning and Subdivisions Act 2010 with “watered down” legislation.

Fred Smith QC, the Callenders & Co attorney and partner, argued that the Christie administration would foster “abusive” developments if the replacement Bill was too diluted or it failed to provide adequate enforcement resources.

Suggesting that the absence of a “proper regulatory infrastructure” had undermined the 2010 Act’s effectiveness, he added that the Government’s intention to replace it was “smoke and mirrors” because the same problems were likely to occur.

Mr Smith, who is legal director for Save the Bays, the environmental advocacy group, said this highlighted the Bahamas’ “big challenge” - its inability to properly enforce and administer the laws passed by Parliament.

While the Planning and Subdivisions Act could create a “booming green economy” if properly used, the well-known attorney again bemoaned the Government’s tendency to override its statutory regulatory agencies via the “secretive Heads of Agreement” negotiated with developers by the Office of the Prime Minister.

Mr Smith said this “feeds into quick buck development”, a model that the Bahamas desperately needed to escape.

Tribune Business revealed the Government’s intentions to replace the 2010 Act with the Planning and Subdivisions Bill 2015 last week, with the new legislation posted on its website presumably for consultation processes.

Calling for the Government to preserve much of the initial legislation, Mr Smith told this newspaper: “If the Government insists on watering down the current Act, it will be returning to the dark ages of abusive real estate development in which the only real goal is ‘for profit’.

“There will be no respect for the environment and local rights in the Family Islands. I continue to harp on the fact that the Family Islands don’t want to be the same as New Providence.”

Mr Smith agreed with Franon Wilson, Arawak Homes’ president, in one respect, by acknowledging that the Government did not equip the Ministry of Works and various planning agencies with the necessary technical expertise and human resources to properly enforce the 2010 Act.

“It is regrettable that the Government did no put the required infrastructure in place to properly administer the Planning and Subdivisions Act 2010,” Mr Smith said.

“Replacing the Act and replacing it with this new one is all, once again, smoke and mirrors, because it reduces regulatory oversight, rights in general, and in any event it will not be properly regulated and enforced.

“That is the big challenge we face in the Bahamas. We keep passing legislation and the executive does not ensure that the required infrastructure is put in place, is properly resourced with expertise and properly financed to do its job.”

Mr Smith and Mr Wilson are likely to disagree on most other planning-related matters, the Arawak Homes president last week telling Tribune Business that the 2010 Act was “a disaster from the start” and “doomed to fail’ because it was never properly resourced.

The Act, which is the Bahamas’ key planning and development legislation, was largely was welcomed upon introduction, especially by environmentalists, bona fide developers and the construction-related professions, for bringing greater regulation to an area that urgently required it.

Yet there was also a sense that some of its requirements were too bureaucratic and onerous, and could ultimately stifle development.

“It was well designed and worked well with the tableau of legislation developed to make development a responsible, transparent and green priority for the future of the Bahamas,” Mr Smith argued.

“It was one that married the planning needs and vision of not only New Providence, but also Family Islands, with development that could go hand in hand with respecting the prime terrestrial environment,” the prominent QC added.

“There is no reason why we should not be booming in development terms as a green economy, one which takes into account the developer’s profit objective, the promotion of growth in the economy and jobs for Bahamians with saving the best of our environment for future generations.”

Mr Smith then returned to his attack on the ‘Heads of Agreement device that has been used by successive governments to conclude deals with developers, both local and foreign.

He argued that the “blanket approvals” these gave to developers effectively “deprived” the Government’s regulatory agencies, including those dealing with planning and construction approvals, of their ability to properly scrutinise such projects.

Arguing that this effectively neutered laws such as the Planning and Subdivisions Act, Mr Smith said: “These blanket Heads of Agreement giving omnibus approvals completely strip all these government agencies, which Parliament has passed laws to have in place, of all their powers, functions and reasons for being.

“Haste makes waste, and that’s what these anchor projects do. They don’t really result in organic economic growth.”.

He added: “Politicians are only concerned with making announcements so they can win votes in the short-term, and that feeds right into some developers’ obsession with a quick buck return.

“That’s what we need to get away from the in the Bahamas. We need deliberate, responsible, organic development that will help everyone and develop a green economy that creates more jobs.

“Imagine how many hundreds, thousands of jobs could be created by properly managed regulatory agencies.”