The Department of Environment says unapproved mangrove-forest clearing is a problem they are not authorised to act on.
Tim Austin, deputy director of the DoE, said that planning permission is needed before mangroves can be legally cleared.
“Technically, clearing land, including mangroves, by mechanical means requires planning permission, but frequently this is not adhered to. This was not an offence under the National Conservation Law, but a Planning Law infringement that was beyond the jurisdiction of the NCL and thus we were limited in our ability to intervene,” Austin said in an email to the Cayman Compass.
“If the NCL Mangrove Species Conservation Plan comes into force as proposed, clearing mangroves without [Central Planning Authority] approval or Cabinet coastal works approval will be a recognised offence under the NCL, and we will be able to act accordingly.”
In March last year, the National Conservation Council sent the Mangrove Species Conservation Plan to the Ministry of Environment for consideration by Cabinet. The plan, if approved, will allow the DoE to impose fines for unauthorised mangrove clearing.
Currently, the Central Planning Authority is required to take into account DoE and National Conservation Council advice on planning applications to clear land, but can grant after-the-fact approval in relation to land that has been cleared before authorisation is given. The CPA comes under the remit of the Planning Department, which is authorised to take enforcement measures against people who clear land without permission.
The Planning Department said if someone applies for permission for after-the-fact clearing, the application fee becomes 10 times the regular $100 fee, and so would amount to $1,000 per acre of land cleared.
Ron Sanderson, deputy director of planning, said that if the director of planning has issued an enforcement notice for illegal land clearing and no application for permission is submitted, then the matter progresses to Summary Court, as per Section 21 of the Development and Planning Law.
“At that point, any ‘penalty’ rests solely with the court. Section 21 does state that a person is liable upon summary conviction in court to a fine of $5,000 and, in the case of a continuing offence, to a further fine of $1,000 for each day after the first day that there is no compliance with the terms of the enforcement notice,” Sanderson told the Compass in an email.
He added that it is also in the court’s discretion to apply such fines or other penalties as it sees fit.
The DoE’s Austin said the Mangrove Species Conservation Plan is “vitally important because, at the moment, there is very little recognised protection for the four mangrove species themselves and, in particular, coastal mangroves”.
Under the National Conservation Law, mangroves are listed as ‘Part 2 species’, which means they are not protected unless a specific conservation plan is in place for them.
If Cabinet, in the case of a coastal works application, or the Central Planning Authority gives clearing permission, under the NCL there is no mechanism for either the DoE or the National Conservation Council to prohibit the clearance of mangroves or impose fines relating to removing them. However, Austin said that if the Mangrove Species Conservation Plan is implemented, the DoE and the NCC can prosecute people who clear land that is home to protected species.
“The Species Conservation Plan envisaged will extend protection to the [mangrove] species, as well as recognising officially the value that mangroves and their associated ecosystems provide for these islands. The penalties remain the same as those outlined in the National Conservation Law but, importantly, the protection has increased so activities that were previously unchallenged will now be an offence and these include removal of mangroves on a large scale without the requisite permissions,” Austin said.
John Burke is one developer who was given a stop notice, in August 2019, for land clearing without planning permission. On 8 Jan. Burke attended a Central Planning Authority meeting which addressed the unapproved clearing and his proposed development of a subdivision on the site. Burke wrote in his application that he “did not realize that clearing the land required special permission and there was no possible other way for me to determine what was required to develop the land”.
Burke stated in his application letter that the area attracted undesirables and illicit activity, and said the site would become a safer place to live without the mangrove forest he cleared.
The CPA adjourned that application and saw Burke again on 5 Feb. when it approved the subdivision application and the clearing with some special conditions. The Compass reached out to the Planning Department for details of those conditions, but no response had been received by press time.
Another developer recently cleared and filled more than 1.2 acres of mangroves in Prospect Point without planning permission. The Planning Department confirmed that he is set to appear before the CPA in early March.
The Planning Department also confirmed that he has paid a $2,800 after-the-fact fee. This is the second case this year involving after-the-fact applications of land clearings.
Martin Keeley, executive director of the Mangrove Education Project in Cayman, said that many developers just get a slap on the wrist and pay their fines when they clear land without authorisation.
Keeley said that Cayman needs the Mangrove Conservation Plan to stop developers from getting away with clearing valuable wetland.
“[The plan] has been sitting in Cabinet for what, six months, seven months, nobody’s acting on it and we need that in place so that there is control over this sort of thing because this is happening on a constant basis,” Keeley said.
The DoE said it is currently working on an up-to-date wetland loss figure, which will include the latest aerial imagery of mangrove land. The previous aerial imagery taken in 2013 showed that Grand Cayman had lost 69% of its wetlands on the western side of the island since 1976.