The appointed boards that advise government on land development decisions do not have open meetings, often do not provide reasons for their rulings and are comprised of members who have potential conflicts of interest with certain development projects.
Those are among the findings by Auditor General Alastair Swarbrick in a comprehensive review released last week focusing on government’s land management policies. The review was highly critical of the operations of the Central Planning Authority and the Development Control Board in Cayman Brac and Little Cayman.
In addition, the report found that contrary to the Cayman Islands governance framework, guidance from the elected members of the Legislative Assembly is no longer steering major development decisions. This finding stemmed partly from the fact that the development plan now used by government was created nearly 20 years ago.
“The failure of governments to maintain the currency of development plans may have led to the impression that this important government responsibility has been allowed to pass to the private sector,” the audit report states. “The two largest developments undertaken in the past five years – the NRA agreement [with the Dart group] and Health City – were pursued outside the context of an up-to-date national land use plan.”
Neither project was assessed against what auditors referred to as a “current” development plan, and while the Central Planning Authority used the 1997 version of government’s development plan for the Health City Cayman Islands proposal, its use was “cursory at best,” auditors found.
This general deficiency of the legislative oversight function, and additionally the decision to close planning board meetings to the public, has led to diminished transparency regarding a number of development decisions, Mr. Swarbrick’s report found.
In recent years, there have been some improvements to the process. Since the advent of the Cayman Islands Freedom of Information Law, applications to the Central Planning Authority and its equivalent body for Cayman Brac and Little Cayman, the Development Control Board, have been posted on a government website. The decisions on those applications regarding land use are generally public information as well.
However, the rationale the board uses for those rulings is often not disclosed, auditors found.
“We found several cases where departments with technical expertise … asked for amendments to applications or made objections, but these reservations did not form part of [the board’s] decision,” the audit report states. “Often, the decision would state only that the authority or board had ‘considered’ information from other agencies.”
In response to the audit’s findings, the Central Planning Authority members noted that certain agency submissions were “not well substantiated.” However, the board members never clarified what was expected of the agencies that submitted those reports or technical advice.
Particular cases where this occurred were flagged by auditors:
The Health City Cayman Islands project submitted a planned area development application to the Central Planning Authority for the site around the East End hospital. Three government agencies – the National Roads Authority, the Water Authority, Cayman and the Department of Environment – all “raised significant concerns regarding the nature and impact of the project on the natural environment.” All environmental concerns, the potential cost of building a bypass highway north of the hospital project and the infrastructure stresses the project would place on public facilities and roads were left unaddressed, auditors reported.
In the case of another development, the Adagio in South Sound, both the Water Authority and the Department of Environment recommended dredging restrictions of no more than 20 feet “to preserve water quality.” The government planning department endorsed the 20-foot restriction. However, the planning board approved the 30-foot excavation request by the developer “without explanation,” auditors revealed.
The Department of Environment raised concerns about the planned Kimpton hotel along Seven Mile Beach, approved as part of the NRA agreement with the Dart group, including the development’s setback from the water and requirements for “turtle-friendly” lighting (typically, hatchling turtles use the light of the moon to guide them from the beach, where they are born, back into the sea. Bright lights close to shore can confuse them and cause them to go the wrong way). Also, the National Roads Authority concluded in its review of the road connections to the Esterley Tibbetts Highway, also approved as part of the agreement, that those connections would create “an unjustified hazard to motorists.” The planning board approved the development without commenting on any of these concerns.
In Cayman Brac, the Development Control Board approved an extension to a quarry despite the Department of Environment and the Water Authority informing the board that the applicant for the extension was in breach of license terms. The departments asked that the quarry operator remediate the breach “as a condition of the application approval.” The board approved the application without requiring those conditions, noting that it had taken the concerns “into account.”
The auditor general’s office also looked into whether decision-makers on the two development boards were free from the appearance of, or actual, conflicts of interest.
The Central Planning Authority has guidelines for members of the board to declare any conflicts and recuse themselves from meetings until matters related to their business, or the business of a close relative, are completed. However, those guidelines do not impose sanctions if board members don’t follow the rules, nor do they require members to disclose financial interests in businesses at any time.
The adoption of the Standards in Public Life Law in 2014 was due to introduce disclosure requirements for appointed board members, but the law was never put into effect. Premier Alden McLaughlin said last year that concerns from various appointed board members forced government to rewrite sections of the law. Updated legislation has not been brought before the House.
“The great majority of members of the Central Planning Authority appointed since August 2013 were from the development and construction industries,” Mr. Swarbrick’s report found. “While providing expertise to the Central Planning Authority, this creates a high risk of conflicts and also adversely affects the appearance of freedom from conflict.”
The auditor’s office made three recommendations to improve the functioning of the two planning boards, including that the meetings of both the Central Planning Authority and the Brac Development Control Board be open to the public and that they provide reasons for their decisions.
Auditors also recommended that board members be required to fill out a register of business interests immediately.
In its response to both recommendations, the government indicated that “this is a matter for the [planning boards]” and that the civil service management could not make any promises.
The audit report also recommended that both boards should be better balanced to include “members representing sectors other than the building and development industry.”
Government managers responded to the report stating that this was a matter for the elected members of the Cabinet.
Mr. Swarbrick said Thursday that Legislative Assembly members had provided no response to his audit, despite having received it three to four weeks ago.