The Central Planning Authority has approved an application to replace a failing seawall and a cabana at Boggy Sand Road in West Bay, despite a direction from the Department of Environment to reject the plan.
The Department of Environment, under delegated authority from the National Conservation Council, in a written submission to the CPA directed it not to approve the application by Cayman Property Investments Ltd., on the grounds of the expected detrimental impact on the marine environment and the beach.
John Bothwell, manager of the DoE’s Legislation Implementation and Coordination Unit, said it is the understanding of his department and the National Conservation Council that the CPA is legally bound to take on board a direction from those bodies.
“We are going to reach out the Department of Planning to get more details of the CPA discussion so we can know what has happened exactly; then from that, try to work out the next step,” he told the Cayman Compass Monday afternoon after the CPA decision was announced.
He added that the DoE would also be consulting the government’s Legal Department “so we can understand what is happening and make sure the National Conservation Act, as written and intended, is functioning properly”.
Michael Alberga, the attorney representing property owner Justin Schmidt, at a meeting of the CPA on Wednesday, 1 Sept. when the application was considered, was asked by the board chairman Ian Pairaudeau for his opinion on the DoE directing the board to reject the application. Alberga responded that he believed it was within the discretion of the CPA to approve or refuse it.
“I would suggest that the board is not bound by the recommendation of the DoE,” he said.
‘Obligation to fix damaged property’
Alberga, in his oral submission on the application to the board, argued that under the Development and Planning Act, an owner has a legal obligation to repair damaged property, if it poses a threat to a neighbouring property or to infrastructure.
In 2019, Schmidt purchased the cabana structure and seawall, which had been built by the former owner in 2009, Alberga said. The wall adjoins another seawall which was built by government along Boggy Sand Road after the road was washed away by Hurricane Ivan in 2004.
The DoE, in its submission, pointed out that the site was “not a good location for built development and the seawall probably should never have been granted planning permission a decade ago. It is evident that within a very short period the structure is failing, partly due to an inappropriate design and partly due to its position in an inappropriate location. It would therefore seem futile to try to permit further development on this problematic site.”
However, Alberga told the CPA members that his client had only two options – either to repair the existing wall, which has degraded badly over the years, or build a new wall inside the existing one and then remove that old wall.
Curved wall option
The CPA was told that Schmidt and architect Michael Meghoo earlier this year had met with Department of Environment Director Gina Ebanks-Petrie to discuss the options and were advised by the DoE that a curved or stepped seawall would be preferable to the type of straight-line wall that currently exists, in terms of beach erosion concerns and the depositing of sand by wave action.
Alberga said that, at considerable extra cost to his client, plans for a curved wall – which would reduce the footprint of Schmidt’s property – had been drawn up and his client was ready to put that design in place.
He said if the CPA turned down the application, the next step would be to ask the board for permission to repair the existing seawall. “We have the right to repair the wall, and there are big fines under Section 29 of the law if you don’t repair,” he said.
Project architect Meghoo, who presented the plans for the site to the CPA board, said his client had engaged engineers to review the site, who confirmed the existing seawall has failed.
“It has not failed catastrophically, but it will,” Meghoo said. “We have that documented and we have a design for working inside the existing seawall to build the new seawall. That is our first approach – to build a new seawall inside the existing one.”
He pointed out that property owners are entitled to repair a failing structure: “Not only entitled but they have a responsibility to do it, as a life safety and public safety issue.”
He added, “If the seawall fails and goes into the sea, we have an environmental issue that they will be responsible for. That part of the seawall is also protecting Boggy Sand Road. The Boggy Sand Road seawall stops at the property line. If the seawall fails, then that road could face erosion and become impassable for the residents of Boggy Sand Road.”
He said that the property owner had decided to follow the advice received from the DoE and go ahead with plans to erect a curved wall.
Five months of work
Meghoo told the CPA that the work on the site would be done during the winter and spring months, when “the beach is present for five to six months”. He said it would take about five months to erect a new seawall and remove the old one.
As the new seawall would be built inside the existing seawall, there would be no contaminants in the water, he said.
Engineer Frank Reed, of Reed Consulting, who has worked on coastal projects in the UK, Bermuda and in Cayman, warned the board that if the existing seawall collapsed and had to be rebuilt, “there would be a lot more adverse conditions… you would definitely have to put silt screens and all the rest of it, so … working inside the box [existing seawall] is the best case scenario”.
As far as the Compass is aware, the DoE has only directed, rather than recommended, the CPA reject an application in two other instances – one involving the Balboa Beach development on the George Town harbourfront, and the second regarding this same Boggy Sand Road site, when the owner applied to build a three-storey dwelling where the cabana currently stands.
After the CPA rejected the Balboa Beach application, the property owner took the matter to the Planning Appeals Tribunal, which sent it back to the CPA for reconsideration. No date has yet been set for the application to be reheard.
The CPA also rejected the application for the three-storey dwelling at Boggy Sand Road.