Record-keeping woes held up Beach Bay ‘quarry’ decision

Severe record-keeping issues at the Planning Appeals Tribunal appear to have delayed resolution of a proposed excavation project on 44 acres in the Beach Bay area of Lower Valley. 

In mid-June, the Central Planning Authority filed an appeal in Cayman Islands Grand Court after the tribunal sided with developer Whiterock Investments, which wishes to excavate and remove 295,000 cubic yards of fill from its land at Mahogany Estates of Beach Bay Road. 

The authority denied Whiterock’s application for planning permission in February 2011. Whiterock appealed to the tribunal, which held a hearing on the matter in December 2011. 

 

Decision 

In April 2012, tribunal chairwoman Theresa Pitcairn emailed the relevant parties, notifying them the tribunal had concluded the Central Planning Authority “had erred in law,” and that when the tribunal received a written transcript of the audio recorded during the hearing, it would communicate its written decision forthwith. 

At the end of August 2012, Ms Pitcairn emailed the Ministry of Finance, Tourism and Development, saying she proposed to draft the Whiterock decision over the weekend. As a reason for the delay, she cited the lack of a written transcript of the tribunal hearing. She recommended the ministry not purchase a particular auto-transcription software program, saying her 13-year-old daughter, under the supervision of the family’s helper, had downloaded a copy of the program and it had only been able to produce gibberish from the audio of the hearing. 

The Caymanian Compass sent an email to Ms Pitcairn requesting comment. In response, Ms Pitcairn said she is no longer chairwoman of the tribunal, and she forwarded the Compass’ email to the Ministry of Planning. 

 

Records 

In early July, the Compass submitted an open records request under the Freedom of Information Law to view the tribunal’s decision on the Whiterock appeal. The ministry’s information manager responded that as of July 1, the responsibility for tribunal records had been transferred to the Ministry of Planning, due to reshuffling with the new ruling government taking office. 

The Ministry of Planning’s information manager then told the Compass her ministry had not yet received the tribunal records. 

On Sept. 3, the Compass emailed ministry chief officer Alan Jones requesting an internal review of the ministry’s failure to provide the request records within 60 days, as required by the law. The next day, the information manager contacted the Compass, saying the tribunal records were now available for inspection.  

On Thursday, Sept. 5, a Compass reporter went to the ministry’s office in the government administration building to view the tribunal records on the Whiterock appeal, consisting of several large folders of various paperwork – much of it duplicated, and including emails, legal arguments, planning materials and objectors’ letters. 

The ministry, however, did not have a copy of the tribunal’s official written decision (only emails from Ms Pitcairn saying what the tribunal had decided and that the written decision would be available soon), nor did the ministry have possession of the audio CDs from the hearing. 

Presumably, the written decision exists, and the authority has had the opportunity to read it. 

According to the minutes of the authority’s meeting on June 3, 2013, “members were provided with the written decision of the Planning Appeals Tribunal (PAT) regarding the Whiterock Investments Ltd. appeal.” 

 

Presumption 

In a notice of appeal submitted Feb. 22, 2011, Whiterock’s attorney J. Samuel Jackson argued the authority erred when it said there was “no presumption in favor of development” under the law. 

“It is submitted that there is at law a presumption in favor of planning permission, which presumption is based upon the ordinary right of a landowner to develop his land, and this presumption can only be displaced where the proposed development would cause a demonstrable harm to a recognized planning interest,” Mr. Jackson wrote. 

The authority “strenuously disagrees” with that statement, according to a March 2011 “reasons for decision” document. 

“This argument implies that the authority would have a bias in favor of the applicant prior to the application even being considered. This is contrary to the principles of natural justice,” according to the document signed by authority chairman A.L. Thompson. 

In January 2012, the attorney general’s chambers wrote on behalf of the authority that there can be no error in law because “the presumption in favor of planning permission to which [Whiterock] refers is not a feature of Cayman law,” nor is the concept of demonstrable harm. 

“These arguments and the slew of cases presented by [Whiterock] have been presented time and again over the years to this tribunal by counsel and have never been accepted, in any ruling made by this tribunal, as a feature of Cayman law,” according to the submission. 

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