The Central Planning Authority intends to take the matter of the Boggy Sand Road seawall to the Privy Council, the UK’s highest legal court, after Cayman’s Court of Appeal quashed the authority’s earlier approval of the demolition and replacement of the controversial wall.
According to the recently released minutes of a 6 Sept. Central Planning Authority meeting, the board members met in private to consider legal advice from its counsel.
“The Authority discussed the matter at length and resolved to appeal the decision of the Cayman Islands Court of Appeal to the Privy Council,” the minutes note.
The board will be appealing a 1 Sept. judgment by the Court of Appeal which ruled that the National Conservation Council has the ‘final word’ on planning applications that are likely to have adverse effects on environmentally protected areas.
The issue had come to court when the National Conservation Council brought a successful legal challenge against the Central Planning Authority for ignoring its direction in 2021 to refuse permission to Cayman Property Investments to rebuild a cabana and seawall next to a marine protected area on a badly eroded section of beach beside Boggy Sand Road.
The controversy pitched two government entities against one another in local courtrooms, and now, potentially, before a panel of the UK’s most senior judges.
The Court of Appeal earlier this month upheld a 24 Aug. 2022 Grand Court judgment to quash the approval and send the application back to the Central Planning Authority for reconsideration.
The appeal court judges ruled that, in its initial decision to approve the project, the authority failed to properly comprehend its legal obligation to consult with and then follow the directive of the conservation council on the application.
Within 24 hours of the Court of Appeal ruling, the developer began tearing down the yellow cabana on top of the seawall.
In its application, Cayman Property Investments had asked the planning board for permission to demolish the existing crumbling seawall and replace it with a new seawall, and replace the cabana with a larger, two-storey structure.
The Department of Environment, acting on delegated authority from the National Conservation Council, had directed the board to refuse that application, because of the anticipated damage it would do to the marine environment.
The Central Planning Authority, according to the minutes of the meeting at which it approved the application, determined that it had not received a ‘lawful directive’ from the National Conservation Council, and that it believed rebuilding the deteriorating structures would be less harmful than leaving them in place to collapse.
The Court of Appeal, in its 1 Sept. judgment, ruled that the conservation council had been “premature” in instructing the Central Planning Authority to reject the application, before the board consulted it on the matter. However, the appeal judges added that this breach of procedure did not remove the planning board’s legal obligation to examine the potential for harmful environmental impacts, to seek the council’s approval and to follow its directive.
Following that ruling, Premier Wayne Panton, who was environment minister when the National Conservation Act was passed in 2013, said the judgment had confirmed “the legal basis for factoring environmental concerns 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.
“I am comfortable that the Courts have settled this matter once and for all and there can be no more room for debate.”
The Compass has reached out to the National Conservation Council and to Premier Wayne Panton, who is also minister for sustainability and climate resiliency, and is awaiting a response.
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Stop wasting the tax payers money on these stupid appeals. If the issue is so important to allow one group of arbitrary people final say over another then petition the members of Parliament to change the law. this is out of hand and makes the entire government look bad.
This issue has turned into a “turf war” between the two administrative bodies. Instead of spending time and money on this issue, the CPA needs to accept that with the changing times, the Department of Environment now over-rule directly impatient impacts our precious environment. The CPA must also take this fact because poor decisions in
the past by the CPA are now showing up in declining natural conditions on our islands. (i.e., Seven Mile Beach Erosion and even erosion near the Boggs Sands sea wall).
The CPA should immediately drop plans to take this to the Privy Council, resulting in a waste of government funds. This is especially important when the CIG is going deeper and deeper into debt.