In a rare court ruling concerning a planning dispute over a proposed apartment development along Grand Cayman’s Seven Mile Beach, a Grand Court judge has questioned planning regulations that, heretofore, have allowed for the development of structures higher than seven stories in hotel/tourism zones.
The decision by Grand Court Justice Seymour Panton on April 8 overturned earlier rulings by the Central Planning Authority and the Planning Appeals Tribunal to allow Bronte Development Ltd. to proceed with the construction of two apartment buildings on Snooze Lane in George Town. According to the application, one of the apartment buildings was to be 10 stories and the other was to be four stories.
The land is on a relatively narrow strip between the George Town Villas and the Grand View condominiums. During the planning process, the authority received a number of objections to the new development from nearby strata members.
Eventually, members of the Grand View Strata Corp. sued the developer and the Planning Appeals Tribunal, resulting in Justice Panton’s ruling.
In the 34-page judgment, Justice Panton rejected certain arguments against the development made by the strata corporation, including that planning officials had “ignored” submissions on the project by the Department of Environment and that the project “looked ugly.”
However, the key issue, according to the court, was the existence of property setbacks – the distance the development must be from the high water mark on the beach side.
Justice Panton noted that Development and Planning Law regulations, updated in 2011 and again in 2014, require all structures and buildings of up to three stories in a designated hotel/tourism zone to be set back at a minimum of 130 feet from the high water mark. An additional 15 feet should be added to the setback requirements for the fourth through the seventh stories of a building.
The planning law regulations are silent on what should occur with a building of between eight and 10 stories, Justice Panton said.
“Critically, I think, there is no provision for a ten-storey structure,” the judge wrote in his decision. “A subsequent amendment in 2014 in this regulation clarified the measurements for the setback up to the seventh storey by increasing it to fifteen feet for each of the fourth through to the seventh storey; yet nary a word in respect to the eighth to the 10th storey.
“There cannot be an ‘anything goes’ attitude in relation to buildings over seven storeys,” the judge continued.
The Central Planning Authority has the ability to grant permission for a shorter setback distance than the 130 feet or 145 feet prescribed in the current law, but Justice Panton said, in doing so, the authority must take into account a number of factors, including elevation of the property, geography, surrounding environment, such as existing structures, and whether there is a protective reef offshore.
Attorneys for Bronte Development submitted a revised plan for the apartments that included a setback of 145 feet, but lawyers for the strata corporation argued that the setback should be between 190 feet and 205 feet.
Lawyers for Bronte posited that there was no reason for the property setback for a three-story building to be different than that of a 10-story building.
Eventually, the Planning Appeals Tribunal determined that it was the intent of the Legislative Assembly to require buildings over three stories to have property setbacks of at least 145 feet from the high water mark in hotel/tourism zones.
Justice Panton rejected this argument: “This is a building of ten storeys, not seven. The limitation in the regulation to seven storeys means, in my view, that the Central Planning Authority is restricted to dealing with a building of seven storeys. This is so until there is an amendment that provides for what is to happen in the case of buildings over seven storeys.”
The judge found that the appeals tribunal had erred in law, and that the earlier decisions allowing the proposed development to proceed were at variance with the 1997 Development Plan, which is still in force, he said, despite not having been updated in nearly 20 years.
“The age of the development plan is really irrelevant,” Mr. Panton noted. “The legislature is fully aware of its existence and its age, so if they think it requires updating, they will take the necessary action. There is no doubt in dealing with a building’s proximity to roads and the coastline, the provision for setbacks is very important.”
Attorneys at Walkers Global independently reviewed the Grand Court’s decision on the issue and said the ruling will serve to clarify a number of issues that have often arisen over the years in development disputes.
First, Justice Panton’s ruling “affirmed the relevance” of the 1997 Development Plan for Cayman. Walkers attorneys opined that it has also “cast doubt” over the Central Planning Authority’s ability to effectively deal with “high rise” developments exceeding seven stories.
“[The judgment] adds to the small but growing, and increasingly important, list of Development and Planning Law cases,” the analysis penned by Walkers attorneys Stuart Rowe, Nick Dunne and Brett Basdeo noted.
Walkers attorneys also stated that amendments to the planning regulations are “urgently required” to clarify government’s legal position in regard to eight- to 10-story buildings in designated hotel/tourism zones.
“The position in respect of high-rise developments is now uncertain, the judge taking the position that the Central Planning Authority lacked the authority to exercise discretion in respect of setback requirements with regard to buildings beyond seven stories, until such time as the regulations were amended,” the analysis read.