The Grand Court has ruled that the National Conservation Council has the power to direct the Central Planning Authority to turn down planning applications that have adverse environmental impacts.
The ruling comes after the planning board approved an application in September last year to rebuild a seawall and cabana on Boggy Sand Road in West Bay, despite a direction from the National Conservation Council to reject the application.
The Department of Environment, under delegated authority from the NCC, had directed the Central Planning Authority not to approve the application by Cayman Property Investments Ltd., on the grounds of the expected detrimental impact on the protected marine environment and the beach.
In his ruling, issued on Tuesday, 23 Aug., the Grand Court’s Acting Justice Alistair Walters concluded that the Central Planning Authority had acted unlawfully when it approved the application, and he quashed the planning approval.
In a 51-page decision, the judge confirmed that the National Conservation Act gives the National Conservation Council the authority to direct any entity of the government, including ministries, departments and statutory authorities, in actions that would have, or would be likely to have, an adverse effect on a protected area or on the critical habitat of a protected species.
In court, lawyers for the Central Planning Authority had argued that the council could issue “guidance”, but could not order an entity to take any specific action.
The judge’s ruling also confirmed that the National Conservation Act provides the NCC with an “express power of delegation”, therefore it can legally delegate its powers to the director of the Department of Environment.
The CPA lawyers had argued during the judicial review that DoE Director Gina Ebanks-Petrie and her department had not been lawfully delegated the authority to direct the planning board, and, therefore, the board did not have to follow her directions on the application.
Protection for ‘invaluable, unique’ environment
In a statement issued in response to the ruling Tuesday night, Ebanks-Petrie said, “This decision will ensure environmental concerns are factored into decision-making processes across the Cayman Islands Government, particularly where actions may or are likely to have an adverse effect on a protected area or protected species critical habitat.”
Premier and Minister for Sustainability and Climate Resiliency Wayne Panton, in that statement, said the Grand Court’s decision clarified the NCC’s role in safeguarding protected areas and species in the Cayman Islands.
“Not only does this decision confirm the legal relationship between the National Conservation Council and the Central Planning Authority, it also clarifies the implications for all other government entities, giving all parties greater certainty and clarity going forward,” he said.
He added, “As the ruling notes, the National Conservation Act is a bespoke piece of legislation, developed specifically to protect our invaluable, uniquely Caymanian marine and terrestrial habitats and species. A viable, functioning natural environment is foundational to a resilient economy and healthy communities.”
The National Conservation Act was passed by the Legislative Assembly, now Parliament, in 2013, but was not fully implemented until 2016. Under that law, the National Conservation Council was set up.
Kate McClymont of law firm Nelsons, who acted for the NCC in the judicial review, told the Compass on Wednesday that there was a misconception that the ruling would mean the council, and the Department of Environment, now had overarching powers to make decisions on all planning applications that may have environmental impacts.
“People have misinterpreted this,” she said. “They think it’s any application where there is an adverse effect on the environment. That is not true. It only applies to protected areas and critical habitats of protected species.”
She said the ruling means that in cases when the DoE or NCC determines that a project is likely to adversely impact a protected area or the critical habitat of a protected species, if the planning board or government entity decides independently that it does not, then the matter must be brought back to the NCC.
At that point, she said, the council has the right to direct the CPA to approve or reject the application, or, alternatively, to instruct that conditions be put in place to mitigate the potential impact on the environment.
Concern among developers
Sammy Jackson, of Jackson Law, who acted for the CPA in the judicial review, said the court’s decision was likely to cause a “lot of concern among the folks in the development field, and for good reason”.
He said a decision had yet to be made on whether the CPA would appeal the judgment. He said he believed personally that it should be appealed, as it “completely alters the way the planning board and many other statutory bodies, would function”.
He said there appeared to be a “lack of recognition in how the process works in the first place,” adding that under the Development and Planning Law, the planning board already is bound to consult with the DoE on applications and take its submissions on board.
“It’s a matter of how that dovetails with Section 40 of the National Conservation Act,” he said. That section states that government entities must consult with the National Conservation Council and take its views into account before making a decision on anything that is likely to have an adverse effect on the environment generally, and that they must get specific approval from the NCC on matters that could adversely affect protected areas or critical habitats of protected species.
Government bodies pitted against one another
The judicial review effectively involved two government entities challenging one another’s authority.
The chief officer in the Ministry of Sustainability and Climate Resiliency, Jennifer Ahearn said the decision to bring the dispute to the Grand Court was not taken lightly.
“We believe this ruling brings us closer to our constitutional mandate of ensuring the Cayman Islands Government shall, in all its decisions, have due regard to the need to foster and protect an environment that is beneficial to the health and well-being of present and future generations. We look forward to the CPA and other entities continuing to work more collaboratively with the NCC in their considerations,” she said.
National Conservation Council Chairman McFarlane Conolly said the court’s decision had provided clarification “on a fundamental difference of interpretation of the National Conservation Act between the NCC and CPA which we tried many times to resolve before the NCC applied to the Court as a final recourse”.
He added, “The decision confirms the Council acted lawfully in its delegation of powers to the Director of the Department of Environment, and that we have acted in accordance with our legal mandate under the National Conservation Act.”
In a statement issued on Thursday, the Central Planning Authority’s chairman, Ian Pairaudeau, said, “The decision of the Grand Court dated 23rd August 2022 is currently being reviewed by the CPA and its legal counsel and upon completion of that review, the CPA will make any further statements on the matter, which the CPA determines to be appropriate at that time”.
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