No compensation for gazette ‘error’

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When the Cayman Islands government published the scheme for the East-West Arterial Highway on 14 November, 2006, it gazetted portions of a future phase of the road “in error”, according to officials. 

With no timetable for construction, the National Roads Authority did not take possession of the private property affected by the gazetting, and its acting agent, the Lands and Survey Department, has suspended negotiations with those landowners, some of whom claim nonetheless their land has been blighted by the proposed road corridor. 

 

Publishing error 

Broadhurst LLC attorney Kate McLymont and Bould Consulting surveyor Michael Treacy represent landowners in four of five “suspended claims” that remain outstanding.  

Those five claims have been “suspended” because the roads authority has not physically entered those properties and taken possession of the land. 

Lands and Survey Senior Valuation Officer Uche Obi said a “breakdown in communication” between his department and the roads authority resulted in the accidental gazetting of about 1,000 feet of the East-West Arterial beyond its current terminus at Hirst Road, and also a small leg off the highway north of the Chime Street roundabout. 

“As the law does not provide for the withdrawal of the NRA’s intention, the error unfortunately could not be corrected,” according to information provided by government. 

“In the past, compensation was negotiated and sometimes paid prior to the NRA taking possession of the land. This was done in recognition of the fact that land was being taken from the owner against his/her wish,” according to government. 

 

Legal opinions 

However, the solicitor general advised Lands and Survey that claimants would not qualify for compensation until the roads authority actually took possession of the land. In regard to the five suspended claims, the roads authority has not done so and has no timetable for when it will actually take the land for the future road. Upon receiving the solicitor general’s opinion, Lands and Survey was granted permission from the Roads Authority Board to seek a second opinion from outside counsel. 

Accordingly, Lands and Survey contacted compulsory purchase and acquisition expert Barry Denyer-Green, who is an attorney and chartered surveyor in the UK. Mr. Denyer-Green confirmed and elaborated upon the solicitor general’s opinion. Mr. Denyer-Green’s opinion was that not only was government allowed to suspend negotiations on compensation, but it was not legally allowed to pay compensation before the roads authority took possession of the land. Based on the legal advice, the Roads Authority Board instructed Lands and Survey to suspend all claims for compensation where the roads authority had not entered the land, according to the government. 

 

Blight or benefit? 

Mr. Treacy said the government told his clients their only recourse would be to appeal the suspension of negotiations to the Roads Assessment Committee – if that appeal were successful, then the landowners could apply for a date to appear before the Roads Assessment Committee in regard to the actual compensation amount. 

“The response to the suspended cases is, ‘We won’t negotiate.’ The only way you have to challenge that is to challenge the decision to suspend, at the Roads Assessment Committee,” Mr. Treacy said. 

Ms McLymont and Mr. Treacy argued their clients’ properties have been “blighted” by the gazetting of the road corridor. Mr. Obi agreed that the publishing of the road corridor can indeed impact the property values, but said that can be in a positive manner as well as a negative.  

For example, he pointed to a proposed subdivision east of Hirst Road that is being marketed as having access to the future road corridor. He also showed that before the erroneous gazetting of the road portions, that property sold for $0.69 per square foot, and after the gazetting, sold for $1.27 per square foot. 

Mr. Obi said the erroneous gazetting affected seven pieces of property, and two landowners accepted the government’s decision without further pressure for immediate compensation. 

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Land beyond the terminus of the East-West Arterial Highway was mistakenly gazetted by the government in 2006. – Photo: Patrick Brendel
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4 COMMENTS

  1. Its unfortunate these matters drag on, but is there land really blighted? Blight means that land has decreased potential and cost because of the actions of someone else, in this case government.

    If the land was developable before and isn’t now then they might have a case. To develop land you have to get permission, and if the planning authority give permission the land isn’t blighted because the land hasn’t decreased in potential, and if they don’t give permission because the government wants to build the road there in the future, then there are provisions in the planning law to deal with that. I guess though that this land is just used for farms if not just left vacant, and they can carry on farming it as before, so this is probably a non-story.

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  2. yes SlowJoe their land has been reserved for the road and they cannot gain any planning consent to build on it whatsoever. This land is zoned as Residential not agriculture and all around it has planning for subdivisions so this is far from a non-story for the affected landholders.

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  3. Confused, if they apply for planning permission and it gets refused because of the road that isnt built then they can get compensation from the planning department for them refusing permission when the land is zoned for residential. Sounds like that is what they should do.

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  4. as far as I am aware there is no compensation available for refusal of planning permission. The planners wouldn’t refuse permission outright but just not allow and development within the road reserve (and maybe a buffer zone too) All over the island planning applications are refused or altered for road schemes, many that have not even been gazetted. If you could direct me to the source of your information I would be grateful as this is not something I have investigated.

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