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Court-House-10 — Courthouse building in downtown George Town

Road dispute ruling paves way for more rights for homeowners

5 April 2023

Government should have a clear, transparent and publicly available process to allow property owners to object when their land is seized for road projects, the Court of Appeal has ruled.

The failure to properly publish and publicise a consultation process for aggrieved land owners contravenes their human rights, the court decided.

The issue arose following an appeal by a group of homeowners on Lissa Lane, after government compulsorily purchased parts of their property to construct a public road.

While the court ruled there was no evidence of unfairness to the homeowners, the panel of judges highlighted flaws in the process.

In the short term, the ruling may now pave the way for the NRA to build the public road in West Bay but, longer term, the decision could allow for a more accountable, clearer process when it comes to government’s power to acquire land for its own projects. This controversial compulsory purchase of private land will be used extensively for several new road projects in the pipeline, including the East-West Arterial expansion.

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The Lissa Lane case

Lissa Lane was gazetted in 2019, following approval from Cabinet on the recommendation of the NRA.

The gazetted road spans seven privately owned plots, all adjoined. When complete, the road will take up just under half an acre of land.

The proposed stretch of road has been the centre of a contentious dispute between former government minister Mike Adam, who has used the easement to get to his landlocked home for several decades; and his neighbour Wilson Mendoza, on whose land the easement runs.

Mendoza, together with Crosby Collymore Ebanks and Mario Alberto Gomez, whose lands are also affected by the easement, initially opposed the road’s construction by arguing that the Roads Act was legally flawed as there was no provision for a person whose land was compulsorily acquired to appeal said decision to the court.

They lost their petition in October 2021.

On Friday, 31 March, appeals court judge Sir Alan Moses upheld that decision, ruling that there was no defect in the law that put it at odds with property rights protected by Cayman’s constitution.

In his judgment, Moses wrote, “…[T]he judge was correct in concluding that the requirements of section 15 of the Bill of Rights were satisfied because either by Constitutional Petition or by judicial review the appellants were secured access to the Grand Court to determine the legality of the taking of possession of their properties.”

Government failed to publish objection process

The court was also tasked with ruling whether the NRA and the Ministry of Planning, Agriculture, Housing and Infrastructure, which has oversight of the NRA, ran afoul of the constitution by failing to publish and make available an objection process for property owners.

During the hearing, a senior policy officer at the ministry stated that there was a formal process for property owners to provide objections in person and in writing.

However, he acknowledged that this process was, at that time, not published by the NRA, nor the planning ministry.

Justice Moses found that, by failing to make the objection process publicly accessible, the ministry and the NRA did not act in accordance with the law, which they were required to do under section 15(1) of the Bill of Rights, in relation to the interference with peaceful enjoyment of property and the taking of property.

He added, “A failure to formulate, and promulgate a procedure for enabling landowners or others to comment on and object to a proposal is not ‘in accordance with the law’.”

When returning their decision, the appeals court judges granted a partial appeal but did not quash the Grand Court’s judgment.

“In light of the conclusion that no injustice or unfairness has arisen in this case, it is plain that it would not be right to quash this particular decision,” said Justice Moses. “But it is important that any future proposal under the Roads Act is ‘in accordance with the law’ so as to comply with section 15 of the Bill of Rights.”