BERMUDA Law and Practice Contributed by: E. Scott Swainson, Andrew Morgan and Erik Gotfredsen, Wakefield Quin Limited
Process If the planner cannot support the application, they will give the applicant the option to withdraw or amend, or will take the application to the DAB with the plan - ner’s recommendation to refuse. The DAB is unlikely to ignore the recommendation but the applicant may feel they have better prospects on appeal. If an application is not determined within six months, it may be appealed as a deemed refusal. Right of Appeal Against an Authority’s Decision The applicant may appeal a refusal or unsatisfactory condition within 21 days. The appeal is lodged with the Minister for the Envi - ronment, with detailed grounds in support. The appli - cant can ask the Minister to personally determine the appeal or that it awaits determination by the inde - pendent planning inspector (who visits frequently from the UK). The Minister may support or overrule the inspector, but the latter is relatively rare. Appeals may take up to one year. This is especially true of an appeal of a retroactive refusal. The appellant may challenge the Minister’s decision by seeking judicial review on the grounds that it is irra - tional. The courts may then quash and substitute their own decision or refer the matter back to the Minister for determination. Agreements With Local or Governmental Authorities The planners will advise how they might support the application in their report to the DAB. This may involve requesting changes, such as suitable height restric - tions, setbacks, etc. Technically, land can only be rezoned during the periodic island-wide rezoning (when new maps are issued), and appeal rights via a tribunal apply. It may be possible to offer a “zoning swap” in advance of this so that protected land (eg, woodland) is released and traded for development land that is better suited to conservation (some betterment is needed – eg, a trade ratio of 1 acre to 1.4 or 1.6 acres is not uncommon).
The planners and DENR may support limited develop - ment on conservation land if the applicant dedicates other land to remain as protected land indefinitely, via a Section 34 agreement. Enforcement of Restrictions on Development and Designated Use Any member of the public may report a breach anony - mously, or breaches may be flagged on inspection. The Enforcement Officer will then investigate and can issue an enforcement notice. The Director of Planning can also issue a “stop work” order during construction. As most new development cannot be occupied without final inspections and there are many interim inspec - tions, breaches are often flagged early in any build and can be remedied. The penal nature of the system regarding retroactive approvals (and fines and penalties that may be levied) mean that it is never a good idea to proceed with unauthorised work and ask forgiveness. Revisions are normally addressed quickly. 5. Investment Vehicles 5.1 Types of Entities Available to Investors to Hold Real Estate Assets Real estate is commonly owned by individuals, trus - tees/trust corporations or (in the case of commercial property) a company/corporation. 5.2 Main Features and Tax Implications of the Constitution of Each Type of Entity Individuals Individuals may act as both legal and beneficial own - ers. Joint owners may own as joint tenants (survi - vorship applies) or tenants in common (interests are divisible and pass via the estate of the deceased). Individual ownership offers the most control. There are no limits on the number of co-owners. Death Duties Stamp duty is paid on the affidavit filed to secure a grant of probate. It applies to the value of all Ber - muda assets minus accumulated Bermuda liabilities. Exemptions and exclusions apply.
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