Development And Planning (Amendment) Act 1997

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1997/Acts/Development%20And%20Planning%20%28Amendment%29%20Act%201997.pdf

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Development And Planning (Amendment) Act 1997
DEVELOPMENT AND PLANNING AMENDMENT ACT 1997

1

BERMUDA
1997 : 3

DEVELOPMENT AND PLANNING AMENDMENT ACT 1997

[Date of Assent 11 March 1997]

[Operative Date 1 April 1997]

WHEREAS it is expedient to amend the Development and
Planning Act 1974 with respect to subdivision and to make
consequential provision;

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title and commencement
1 This Act, which amends the Development and Planning Act 1974
("the 1974 Act"), may be cited as the Development and Planning
Amendment Act 1997, and shall come into operation on 1st April 1997.

Subdivision control
2 For sections 35 and 36 of the 1974 Act (subdivision control)
there shall be substituted—

"Meaning of subdivision
35A In this Act, "subdivision" means

DEVELOPMENT AND PLANNING AMENDMENT ACT 1997

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(a) any conveyance of land by way of a deed or
transfer,

(b) the granting, assigning or exercising of a power
of appointment with respect to land,

(c) the mortgaging or charging of land,

(d) the entering into of an agreement of sale and
purchase of land, or

(e) the entering into any agreement which has the
effect of granting the use of or right in land
directly or by entitlement to renewal for a period
of twenty-one years or more;

and "person subdividing" shall be construed accordingly.

Planning permission required for subdivision
35B (1) Subject to this section, planning permission is required
for any subdivision of land.

(2) Planning permission for subdivision of land is not
required

(a) where the person subdividing does not retain
the fee or the equity of redemption in, or a power
or right to grant, assign or exercise a power of
appointment with respect to, any land abutting
the land that is being subdivided;

(b) where the land or any use of or right therein is
being acquired or disposed of by the
Government; or

(c) where the land or any use of or right therein is
being acquired solely for the purpose of
providing a right of way to a statutory
undertaker for a transmission line, pipe, or a
pipeline and associated works;

but in the case mentioned in paragraph (b), a final plan of
subdivision shall, on completion of the transaction, be submitted
to the Minister by the Minister responsible for the land in
question.

(3) Subdivision in contravention of subsection (1) shall not
create or convey any interest in land; but this subsection shall
not affect an agreement entered into subject to the express

DEVELOPMENT AND PLANNING AMENDMENT ACT 1997

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condition contained therein that such agreement is to be
effective only if planning permission is obtained.

Application for planning permission to subdivide
35C (1) Application may be made in such manner as may be
prescribed by the rules for planning permission to subdivide
land.

(2) In considering an application for planning permission
under this section, the Board shall have regard to such of the
following as may be relevant—

(a) whether the plan conforms to the development
plan for the area;

(b) whether the proposed subdivision is premature
or necessary in the public interest;

(c) the suitability of the land for the purposes for
which it is to be subdivided;

(d) the number, width, location and proposed
grades and elevations of roads, and the
adequacy thereof, and the roads linking the
roads in the proposed subdivision with the
established road system in the vicinity, and the
adequacy thereof;

(e) the dimensions and shape of any lots of land;

(f) the restrictions or proposed restrictions, if any,
on the land, buildings and structures proposed
to be erected thereon and the restrictions, if any,
on adjoining lands;

(g) the conservation of the visual amenities of the
area;

(h) the adequacy of utilities and services;

(i) the area of land, if any, within the subdivision
that, exclusive of highways, is to be conveyed or
dedicated for public or community purposes.

(3) The Board may impose such conditions on the grant of
planning permission as in its opinion are advisable.

(4) Without restricting in any way whatsoever the generality
of subsection (3), the Board may, in particular, impose as a
condition when the subdivision abuts on an existing road that
sufficient land, other than land occupied by buildings or

DEVELOPMENT AND PLANNING AMENDMENT ACT 1997

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structures, shall be dedicated to provide for the widening of the
road to such width as the Board, after consulting with the
Minister responsible for public roads, considers necessary.

(5) Planning permission for the draft plan of subdivision
shall expire at the end of the period of three years beginning with
the date of its grant; accordingly, an application for planning
permission based on a final plan of subdivision must be
submitted within that period.

(6) Part X of this Act shall apply with the necessary
modifications in relation to failure to comply with a condition
imposed by the Board under subsection (3) or (4) as it applies to
failure to comply with any condition subject to which planning
permission to develop land was granted.

Registration of planning permission to subdivide
35D (1) When the Board has granted planning permission based
on a final plan of subdivision under section 35C, the Minister
shall register that plan on the register kept under section 22.

(2) Planning permission by reference to a registered plan of
subdivision shall continue to have effect until superseded by the
registration under subsection (1) of any subsequent plan relating
to the same land.

(3) But a registered plan of subdivision which indicates
details of any planning permission

(a) previously registered under subsection (1), or

(b) deemed by section 5(2) of the Development and Planning
Amendment Act 1997 to have been so registered,

shall not have the effect of superseding any such permission."

Minor and consequential amendments and repeals in 1974 Act
3 (1) In section 1 of the 1974 Act (interpretation)

(a) in the definition of "registered plan of subdivision", for
"section 36(6)" there shall be substituted "section
35D(1)"; and

(b) for the definition of "subdivide", there shall be
substituted

" "subdivision" has the meaning given by section
35A".

DEVELOPMENT AND PLANNING AMENDMENT ACT 1997

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(2) At the end of section 14(2) of the 1974 Act (development not
requiring planning permission) there shall be added

"(g)the carrying out of any works required in relation to
the laying of roads and installation of services in
accordance with a final plan of subdivision
registered under section 35D."

(3) In section 22 of the 1974 Act (register of applications and
decisions) in subsection (1)(a)(ii) (compensation), for "Part VI" there shall
be substituted "Part VII".

(4) The following provisions of the 1974 Act

(a) in section 37 (more than one building on land prior to 3
August 1965), paragraph (b) and the word "and"
immediately preceding it; and

(b) section 38 (subdivisions approved before June 1974),

shall cease to have effect and are hereby repealed.

(5) In section 39 of the 1974 Act (certain subdivisions not to
require planning permission) for the words "is a part of a building to
which no land, other than parts of the same building, are appurtenant"
there shall be substituted, and deemed always to have been substituted,
the words "consists only of part of a building (and no other land)".

(6) In section 40 of the 1974 Act (certain persons not affected
by section 35)

(a) in subsection (1), for "section 35" there shall be
substituted "section 35B";

(b) in the definition of "interest" in subsection (2), for
"section 35(1)(b), or section 35(2)(a)" there shall be
substituted "section 35B(1)(a)"; and

(c) in the definition of "sell" in subsection (2), for "section
35(1) or (2)" there shall be substituted "section 35A".

(7) In section 41 of the 1974 Act (sale of pre-1974 lots not to
require approval), for "section 35" there shall be substituted "section
35B".

(8) For section 42 of the 1974 Act there shall be substituted

"Retroactive effect of planning permission in certain cases
42 (1) Notwithstanding section 35B(3), where—

DEVELOPMENT AND PLANNING AMENDMENT ACT 1997

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(a) any person agrees to sell, or purports in good
faith to sell, land in relation to whose sale
planning permission for subdivision is required;
and

(b) the agreement or purported sale would be lawful
and effective if such planning permission had
been granted; and

(c) such planning permission is granted after the
agreement has been made or the purported sale
has taken place,

the grant of planning permission shall operate to make the
agreement or purported sale valid and effectual for all purposes.

(2) Where planning permission affects land by virtue of
subsection (1), it shall have effect as provided in that subsection
in relation to any transaction made in relation to the land,
whether so made before or after the grant of planning permission
and by whomever so made."

Other consequential amendments
4 (1) In section 64 of the Condominium Act 1986 (application of
1974 Act), for subsection (2) there shall be substituted

"(2) The creation of units as part of the development of land
as a condominium under this Act and any transfer or grant of a
lease relating to such a unit

(a) are not subdivisions of land within the meaning
of section 35A of the 1974 Act; and accordingly

(b) are not restricted or controlled by anything in
section 35B of that Act."

(2) In Head 16 of the Schedule to the Government Fees
Regulations 1976 (which relates to the 1974 Act)

(a) in paragraph (3)(f), for "section 36(6)" there shall be
substituted "section 35D(1)"; and

(b) in the definition of "Final plan" in paragraph 2 of the
Notes, for "section 36(5)" there shall be substituted
"section 35C(6)";

but the amendment of the 1976 Regulations by this subsection shall not
prevent their further amendment by subordinate legislation.

DEVELOPMENT AND PLANNING AMENDMENT ACT 1997

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Transitional provision
5 (1) Except for the amendment to section 39 of the 1974 Act in
section 3(5) above, the amendments made by this Act shall apply only in
relation to subdivisions of land and applications for planning permission
to subdivide land made on or after 1st April 1997.

(2) Subject to subsection (4), any planning permission

(a) registered under section 36(6) of the 1974 Act,

(b) deemed to have been so registered under section 38 of
the 1974 Act, or

(c) granted under section 35 or 36 of the 1974 Act on or
after 31st March 1995 and not registered by 31st March
1997,

shall be deemed to have been registered by the Minister under section
35D(1) of the 1974 Act (as inserted by section 2 above) on 1st April 1997.

(3) Any statement issued by the Minister purportedly extending
any time limits for registration of subdivision permission under section
38 of the 1974 Act shall be deemed to have so modified the effect of
section 38; and, accordingly, the reference in subsection (2)(b) above to
planning permission deemed under section 38 to have been registered
under section 36(6) shall include any permission registered by virtue of
any such statement.

(4) Where the effect of subsection (2) would be that two or more
plans relating to the same land would be deemed to be registered, the
Minister shall give the owner of the land written notice stating

(a) that only the plan most recently granted planning
permission shall be deemed to be registered under
subsection (2), unless

(b) within sixty days from the date of the notice (or such
longer period as the Minister may allow) the owner
notifies the Minister in writing which other plan should
instead be deemed to be registered.