Church versus state in unique planning battle

After being refused planning permission for a house of God, a Cayman Islands church is seeking compensation from the Central Planning Authority.

However, written legal advice from the Attorney General’s Chambers suggests government’s lawyers believe the application does not have a prayer.

Representatives for the Bethel Refuge Apostolic Church says its land in Savannah, acquired solely for the purpose of building a new $1 million, 400-seat church, has been rendered worthless by the CPA’s decision to deny planning permission.

Citing a little known and rarely used section of the Development and Planning Law, lawyers for the church have submitted a claim for compensation.

A letter from the church’s lawyer to the Central Planning Authority, states: “Simply put, there is no alternate type of development which my client would or could engage in, other than a church building.

“It is therefore my client’s contention that, given that it cannot use this property for any other purpose than that which is prescribed by its constitutional documents, and given that my client has no other use for the land, it should be compensated in the amount of the market value of the land.”

The letter, included in the agenda papers for the latest meeting of the Central Planning Authority, says the land is valued at $260,000 based on a surveyor’s report.

It acknowledges that the request for compensation, under Section 31 of the Development and Planning Law 2015, is “perhaps unprecedented.”

The section allows for claims of compensation in cases where the refusal of planning permission devalues the land and there is no prospect of alternative applications being approved.

The church’s letter suggests its case fits that criteria because, as a non-profit religious institution, it has no other purpose for the land. Planning permission was initially rejected after complaints from residents in the area about the impact on traffic and property values.

In a memorandum from the Attorney General’s Chambers to the CPA, also published with the agenda papers, government lawyers suggest the claim for compensation is without merit.

It states, “The applicant has provided no evidence that the refusal by the CPA to grant planning permission to build the said church was unlawful or unreasonable or was in breach of the rules of natural justice or was contrary to the Development and Planning Law …”

It adds that the refusal relates solely to the specific planning application put forward and there is nothing to stop the church bringing other applications in relation to the land.

The written advice states that the CPA’s decision was in accordance with the law and concludes, “The applicant is not entitled to compensation.”

Lawyer Samuel Jackson, who is representing the church in the dispute, said Section 31 was seldom used by jilted applicants. But he said it provided protection against arbitrary refusals of planning permission, which served to diminish land values.

“One needs to bear in mind that land has no intrinsic value if it cannot be developed, and our legislative framework is posited on a presumption in favour of development, unless there are good reasons demonstrated for refusing planning permission.”

In this case, he said the reasons for refusing the application were insufficent and the appeal was “summarily dismissed.”

He added, “There was no indication that there was any other permission available to my client, either in the form of a modified or scaled back proposal or otherwise, just an outright refusal of permission, for purely speculative reasons.

“The effect of this decision is that it shuts down the potential development of the property for this applicant and it seriously impinges on their ability to sell the land for its full value since, after such strenuous resistance from such prominent objectors, resulting in two successive refusals, it is unlikely that any prudent buyer would even think of acquiring this property as a development site.

“An appeal to the Grand Court would be a very costly exercise for my client. Consequently, my client has been left with no viable option but to pursue compensation in accordance with the provisions of Section 31 of the Development and Planning Law, a provision that has existed since its inception.

“I don’t think this is something the Central Planning Authority will have seen before, because most applicants don’t choose to go down this route, but the law is clear, they are entitled to compensation.”

The church, currently housed in rented buildings in Prospect Park, was first refused planning permission in December 2014, after residents complained about traffic and parking issues and said it would bring down property values.

“The intensity of use from the church, including vehicular and pedestrian traffic and general human activity, will not be consistent with the character of the surrounding low density area and this will detract from the ability of the neighboring land owners to enjoy the amenity of the area,” the CPA wrote in its original decision, which was upheld on appeal.

Several residents wrote to the CPA to complain that the church would adversely affect the value of their homes. Others complained about traffic and parking issues and pointed out that the community of Savannah is already well served with four churches in the surrounding area.

The National Roads Authority suggested the impact on traffic would be minimal. But despite that assessment, the CPA said it believed the new building would create “traffic safety issues.” In refusing the application, it also cited parking and the effect of church traffic on the neighborhood.

In letters to the planning authority at the time, senior pastor Christopher Murray responded to some of the complaints, suggesting that church elders were “taken aback” by residents’ comments that a church would detract from the neighborhood.

He adds that the idea that a church would lower property values is without merit.

“A house built unto the Lord does not depreciate the value of a community, but on the contrary, enhances it,” he wrote.

Pastor Murray did not respond to requests for comment this week.