By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A SIX-YEAR battle over a controversial 13-acre cemetery proposed for Bernard Road has resulted in the developer’s application being dismissed by the planning authorities.

The Subdivision and Development Appeal Board, in a December 19, 2024, verdict on a project that sparked intervention by Fred Mitchell in his capacity as the area’s MP, identified several factors which meant that the appeal by James Bain and Three Phase Investment seeking to overturn their initial rejection “cannot be sustained”. The Board, chaired by attorney Dawson Malone, upheld the Town Planning Committee’s original rejection of the project on the basis that part of the 13-acre site is being acquired by the Government using its powers of compulsory acquisition. And, separately, three lots are being occupied by unnamed persons whose presence on the site is being challenged in the Supreme Court.

“While the grounds of appeal presented by the appellant were reviewed, the appeal must be refused particularly due to the breadth of the approval sought over property which is subject to a compulsory acquisition and parcels duly occupied by persons,” the Board determined.

“In regards to the public acquisition, a portion of the subject property is undergoing compulsory acquisition and therefore, as the request made encompassed this area of property the appeal cannot be sustained over the subject property.

“In addition, there are at least three lots within the subject property that are occupied by individuals and their occupation is sub judice vide Supreme Court proceedings. While this in and of itself may not be grounds to refuse, it does weight against the grant.”

The Board also voiced disquiet that help from the Department of Physical Planning in relation to the cemetery hearing was “disappointingly.. delayed and partial”. However, the impact was not sufficient to alter the decision’s outcome.

The proposed 13-acre cemetery site, which is located near the Budget Convenience store, east of Sands Addition and just past the 700 Wines and Spirits liquor store heading east on Bernard Road, has been heavily opposed by local residents.

Mr Mitchell, minister of foreign affairs, PLP chairman and Fox Hill MP, wrote to the Subdivision and Appeals Board on February 19, 2024, urging that the appeal be dismissed “and the status quo maintained” on the basis that permitting the project would devalue nearby properties and disturb his constituents’ way of life.

Asserting that roads in the area would be unable to handle the increase in vehicle traffic generated by the cemetery, he added that the Government is also “in the early stages” of using its compulsory powers under the Acquisition of Land Act to purchase either the entire property or “pieces and parcels” of it.

Mr Mitchell’s intervention, which was sent to the Appeals Board’s now-former secretary, Carol Martinborough, surfaced at the pre-hearing for the appeal against the Town Planning Committee’s 2018 rejection of Mr Bain’s application to build the cemetery on vacant land he owns.

“I wish to register the interest in the above captioned matter and urge that the appeal be dismissed and the status quo maintained,” said Mr Mitchell.

“The use of the land for a cemetery is not supported by most constituents in the area. The roads in the area do not, and cannot, support the additional commercial traffic, and given the experience of Woodlawn [Gardens], the increased nuisance to residents would be exponential, displacing and devaluing their properties and disturbing their quiet enjoyment.

“In addition, the Government is in the early stages of exercising its powers under the Public Acquisition Act to [acquire] the land in question or pieces or parcels therein.” However, the Board’s dismissal of the appeal comes amid concerns that the public cemetery on Spikenard Road is running out of space. Clay Sweeting, minister of works, said he was aware of the need to expand the location.

The cemetery proposal sparked considerable protest from area residents when it surfaced in 2018, culminating in a well-attended public hearing at LW Young Junior High School where concerns were voiced. Among the chief fears were that traffic would increase, while the value of properties in the area would decline. Residents were also concerned the project would impact the water table and increase flooding in the area.

Attorney Bjorn Ferguson, an opponent of the proposed cemetery, told this newspaper at the time: “We’re just happy that the [Town Planning] committee gave weight to the relevant factors and arrived at the right conclusion. We would greatly appreciate consideration being given to adding more green and recreational space in our community.

“The children in the affected communities are forced to play in the streets due to the lack of green and recreational space. We would fully endorse developments that included these considerations. We do understand that a developer has a right to develop his land but his development cannot negatively impact the community It should provide a positive impact to the community and society at large.”