The Supreme Court has ruled that Mission Road is a public road in a long-running dispute over a garage.
Mark Sousa, who operates Cardoza’s Limited on the road, argued the Paget road is private because the order making the road public was not properly gazetted.
But Chief Justice Ian Kawaley said: “In my judgment it would be an absurd result to hold the 1963 order is invalid for a failure to publish in an appointed paper first raised over 50 years after the statutory instrument was made otherwise validly, and published as part of Bermuda’s laws.”
The question of the road’s status came as part of a dispute between the garage and neighbours.
Mr Justice Kawaley said: “The parking of cars on the roadside in the environs of the garage, combined with emissions from garage operations, has provoked the ire of neighbours for several years.
“This ire has, in turn, stimulated regulatory action by various government authorities resulting in satellite court proceedings.”
The Minister of Public Works in 2015 served an abatement notice on Mr Sousa under the Public Lands Act, enforceable in the Magistrates’ Court.
Cameron Hill, who represented Mr Sousa, argued that the road was private and as a result the Crown had no right to regulate it. A 1963 order was intended to make the road public, but Mr Sousa said the order was not properly gazetted, as it did not appear in an appointed newspaper as required by the law at that time.
Mr Justice Kawaley said the application, if successful, would remove “at least one legal basis” for the Government’s abatement notice.
He said that neither party were able to produce a copy of the order printed in the appointed newspaper.
His judgment, dated February 23, said: “The failure of the defendant to adduce positive evidence of publication to contradict the bare assertion that no publication occurred would, on the face it, support an inference that it was more likely than not that no publication occurred.
“The position might be otherwise if it was not possible to search the relevant newspapers because the records had been damaged or lost.”
The Chief Justice ruled in Mr Sousa’s favour that the order had not been properly gazetted.
But he said it had appeared in the official gazette, in Bermuda Laws online and in the Revised Laws of Bermuda in 1965.
Mr Justice Kawaley said: “As attractively as these submissions were put, in my judgment such general notions cannot trump the doctrine of parliamentary sovereignty.”
He ruled that the entire length of Mission Road is a public highway.