Ombudsman urges change to ‘outdated’ planning postal notifications

The Office of the Ombudsman has found that the Department of Planning is practising maladministration by “slavishly” sticking to an outdated registered mail system to notify neighbours of pending planning applications.

Following an investigation launched earlier this year, the office also ruled that the Central Planning Authority had committed maladministration by approving an application, which it had earlier turned down, while the matter was being appealed.

The ombudsman began the investigation after an objector to the application for a 15-townhouse development in Lower Valley lodged a complaint.

Ombudsman Sharon Roulstone said that even though the investigation had determined the planning notices had been issued in this case, “the prejudice caused by an outdated notification system has long been known to the [Department of Planning]”.

“It is improper administration and potentially an abuse of power to slavishly apply a section of the law, knowing it to be faulty and prejudicial, yet take no meaningful steps to address it,” she added.

Currently, individuals who own property within a certain distance of an application site are notified via registered mail at postal addresses on file at the Lands Registry.

Following the complaint, filed in February this year, the ombudsman investigated whether notices had been sent to neighbours about the second planning application, and whether an administratively fair process had been followed by the Central Planning Authority.

The Compass reached out to the director of the Department of Planning, Haroon Pandohie, and the chief officer in the Ministry of Planning, Eric Bush, for a response on the ombudsman’s findings, but has not received a response.

‘Common occurrence’

The ombudsman investigators found that, according to Cayman Islands Postal Service records, notices had been sent via registered mail in February last year, ahead of the 8 May meeting at which the original application was heard. Notices were again sent via registered mail in August 2024 ahead of the 9 Oct. meeting to consider the second, identical, application.

In a letter to the complainant, the ombudsman noted that, on both occasions, he had not received those notices because since December 2022, the post office box address listed on the government’s land register was assigned to different individuals.

Roulstone noted that, according to both the Postal Service and the chairman of the Central Planning Authority, “this is a common occurrence with planning notifications and a frequent complaint by objectors”.

She added, “The issue occurs when property owners change PO boxes but do not update this change on the land register. In many cases, they are unaware they need to do so.”

In this instance, the complainant filed an objection to the first application after finding out informally about the proposed development in their neighbourhood.

Roulstone acknowledged that the existing notification process outlined in the Development and Planning Act met the minimum legal requirements, but that the legislation offered a range of other options, including delivering the notifications in person and sending them by email.

“If the [Department of Planning] is aware that the statutory process may disadvantage potential objectors … it should proactively take measures to mitigate against the prejudice,” the ombudsman said.

Planning permission granted before appeal held

Roulstone noted that the Central Planning Authority had denied the first planning application submitted by applicant Howard Fraser, to which a number of residents objected. This refusal prompted the developer to file an appeal.

Objectors received notification of that appeal, but no appeal date was set.

“Approximately one month later, while an appeal was pending, it was decided that a fresh application was required because the CPA had not considered certain relevant information in its first hearing of the matter on 8 May 2024,” Roulstone said.

Notifications were again sent out about this new application, but “due to the unreliable notification system, objectors to the first application … had no notice of the second application”, she added.

The Central Planning Authority heard this application, which was unopposed, and approved it on 9 Oct. 2024. The appeal of the first application was withdrawn on 27 Nov. 2024.

The ombudsman, in her ruling, said the objectors to the first application had been “doubly prejudiced by the lack of transparency in this process”.

No limit to submission of same applications

“Moreover,” Roulstone said, “according to the Director of Planning, there is no upward limit in Cayman – either in time or number – for any applicant making the same or similar applications to the CPA for planning approvals of their proposed developments.

“On this basis, the same applicant could file 10 applications for the same property within the course of one year, while keeping a pending appeal open for the refused first application the entire time.”

Because they received no notice of the second application, neighbours had been unable to object, as they had done first time round.

“The absence of an existing objection during the second hearing before the CPA effectively nullified your right to appeal to the Planning Appeals Tribunal,” Roulstone told the complainant. “As a result, you and other objectors from the original application were deprived of the opportunity to submit representations in an appeal hearing submission – had such a process been available – and were further precluded from challenging the CPA’s decision regarding the second application.”

The ombudsman ruled that “this is improper administration and abuse of process, and therefore, maladministration”.

“Simply because there is no legal prohibition against multiple planning applications for the same development does not relieve the [Central Planning Authority], or its administrator, the [Department of Planning], of the duty to mitigate against unfairness and inconsistency, as well as promote transparency, by creating policy – and publishing it – on this practice.”

Roulstone told the Compass that her office did not have the legal power to enforce its recommendations, but said the relevant authorities were expected to follow its recommendations or supply a reason why they would not. Reports on the ombudsman’s findings are submitted to Parliament, she said, which then can make legislative amendments based on the recommendations.

Brittany Balli, whose husband Aaron Hunt raised the issue with the ombudsman, said the development now was already half built so the ruling will have no effect on that.

She said she and her husband had already alerted the planning department that they had not received a notification regarding the first application, so when they later discovered they had also not been notified about the second application – after it had been approved – they were appalled.

Balli said the first she knew of the second application was when she contacted the developer to ask why the land was being cleared before the appeal was heard. “He told me ‘We have permission to do it’,” she said.

Her hope is that by raising this matter publicly and taking it to the ombudsman, the law can be changed to address the shortcomings that led to her and her neighbours losing their chance to object to the application.

“I hope it can help to make new laws to make sure this does not happen to someone in the future,” she said. “I don’t want anyone else to go through what I have gone through.”