CPA decision overturned by judge

| 21/04/2016 | 31 Comments

Cayman News Service(CNS): A judgment delivered earlier this month by a Grand Court judge has refused previously granted planning permission to a potential Seven Mile Beach ten-storey condo building because the judge found the existing laws and regulations relating to buildings of that height are incompatible. Overturning a finding of the Planning Appeals Tribunal and the original approval by the Central Planning Authority, Justice Seymour Panton said the CPA had erred in law in relation to setbacks and recommended that government address the shortcoming relating to the 1997 Development Plan and the planning law regulations.

The judge fund that the setbacks relating to a ten-storey development on the beach are not clearly defined in the regulations, which only accommodate setback distances and other important considerations for up to seven storeys. He further noted that the CPA’s failure to explain how it arrived at the decision over the setback for the property in question, especially in the face of objections, was wrong in law.

See Viewpoint by Stuart Rowe, Senior Counsel, Walkers: Ten storeys: setbacks and other restrictions

The judge’s findings in the case of Grand View Strata Corporation v The Planning Appeals Tribunal, delivered on 8 April, come in the wake of recent Public Accounts Committee hearings on a report by the auditor general relating to the myriad failures of successive governments regarding national development and what Alastair Swarbrick, the former auditor general, called the loss of government control over planning, which had been left in the hands of the private sector. He also pointed to the CPA’s failure to explain its often arbitrary decisions that almost always favour developers.

The judge’s ruling indicates that the CPA cannot make decisions about setbacks without an explanation and it is unlikely that it will now to be able to lawfully approve any more ten-storey buildings on the waterfront along Seven Mile Beach until the regulations are altered to provide the appropriate setbacks for higher buildings. The judge also made it clear that, despite the age of the national development plan, which has not been reviewed as required in law, it is still in force and the CPA could not ignore the requirements of that legislation.

PAC Chair Ezzard Miller said the judge’s ruling reflected what are likely to be PAC’s findings, as it underscored the point that the CPA does not have the wide discretion its chair appeared to believe it did when he appeared before the committee.

“This reinforces what the PAC report will say, which is that government needs to review the national development plan and regulations in concert with the law as a matter of urgency,” Miller said.

The ruling has now created certain inequities as planning permission cannot be given now to proposed developments over seven storeys, while the Dart Group’s new hotel is twelve. Miller pointed out that the developer raised the ground level of the development to accommodate to underground floors in addition to the ten storeys. He said government must also address the issue of the ground level as the Kimpton hotel has made a mockery of the planning law.

The PAC chair also pointed to the problems created by the piecemeal re-zoning that he believes is in contravention of the law and preventing the necessary public input. Miller said it wasn’t just the regulations that clearly needed to be changed; he said the culture of making a developer’s wants and wishes fit the planning law had to stop.

“We cannot continue to allow the CPA to bend the law to fit the needs of developers,” he said, as he indicated the rule bending was almost always for international developers and never for locals wanting to build a home.

“The chair of the CPA seems comfortable doing wrong by the law as long as — he said before PAC — everyone else is,” Miller told CNS. “But government must address this promptly.”

In his ruling, the judge warned that there cannot be an “anything goes attitude” towards the national development plan and planning regulations. He also criticised the CPA’s position that they were not “slavishly following” the national development plan as he said regardless of how old it was it was still in force.

Justice Panton made it clear that on a small island, issues such as beach setbacks were very important and the CPA were wrong to suggest a ten-storey building did not require greater setback than a seven-storey one. He said that the regulations at present do not provide for anything over ten storeys and as a result nothing should be approved over that height until it is addressed.

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Category: development, Local News

Comments (31)

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  1. SKEPTICAL says:

    Finally, somebody with the authority to do so has possibly opened the closet in which there may be many historic skeletons rattling around.

    • Anonymous says:

      Thank you Justice Panton.

      • Anonymous says:

        Yes thank you indeed. SOMEONE needs to draw a line on greed on Seven Mile Beach. Someone once commented that soon the entire seven mile stretch will break off and fall into the ocean. I seriously dont think this is such a far fetched notion the way things are going.

  2. Anonymous says:

    People complaining about Dart as usual, but what development has he done that is anything short of first class? Everything he does is well thought out, and built to the highest standards possible. The only other development I can think of that is built to the highest standard is the Shetty Hospital, and let’s not forget PPM and their cronies opposed it.
    The press thinks it’s critical to say “planning is being controlled by the private sector” as if that’s a bad thing. I much rather have it controlled by the private sector instead of the lazy, do nothing, incompetent civil service.

  3. Anonymous1 says:

    The Chairman of the CPA on Radio Cayman’s morning show “The Business Buzz” on Tuesday of this week claimed he was originally trained as an Architect. If he cannot state with accuracy that he only has an Associates Degree which would only make him an Architectural Technician or Draughtsman at best, then how can he be honest with any decision he makes as Chairman of the CPA? There are professional architects here who had to do a five year Bachelor’s degree programme in order to first qualify to sit their professional examinations to be called a registered Architect with membership of a recognised architectural body. Has the CPA Chairman ever been registered or has he ever had membership of a professional institute. If he has not, then he should apologise for misrepresenting and holding himself out to be a professional architect, which erodes the professional standards and ethics that professional must adhere to. We hope he will do the honourable thing and explain himself.

    • Anonymous says:

      8:48, You answered your own question. He was “originally trained” as an architect. He never said he was professionally qualified, current, or even practicing. In fact he has not practiced since the early 80’s. None if that has anything to do with his original statement, that is not misleading in anyway. He was “originally trained” as an architect.

      • SKEPTICAL says:

        That is merely the use of semantics to imply a higher level of qualification than actually exists, and is therefore meaningless without “certified” evidence of what level was achieved. And did he ever practice as an architect.

        • Anonymous says:

          Yes he did practice as an architect in Cayman. In fact he designed my first house that was built back in 1980. I’ve known him for over 40 years and he’s as decent a gentleman as you will find anywhere.
          While he may not be a current “practicing” architect, the point he was making is that he has formal training to read and understand architectural blueprints, which the average person does not.

    • Anonymous says:

      Thank you for this…what he in fact said was…” I am a qualified Architect “…still a misleading statement.

    • Anonymous says:

      Well said, too many rocket scientists here who have never been brain surgeons.

  4. Anonymous says:

    The entire CPA board needs to be replaced….ASAP!
    They appear conflicted in many ways / decisions. And most, if not all, have been board members far too long…

  5. Anonymous says:

    Would love to see all the paperwork for the steel monstrosity going up on SMB and who authorised it.
    Any chance of a stop notice while being checked and if not correct have it demolished. It has ruined some people’s lives and there properties adjoining.

  6. Joe B says:

    Rules, laws, facts, and the best intentions are no match for culturally induced ignorance.

  7. Anonymous says:

    Time to suspend the CPA completely and conduct an investigation into every decision they’ve made since Ivan. This is either incompetence on an industrial scale on something far more serious.

  8. Anonymous says:

    yawn…another backward step for cayman…

  9. Anonymous says:

    Does anyone look at why members of the CPA are general contractors for other monster buildings going up on SMB? Really is a conflict of interest but guess does not make any difference in the Cayman Islands

  10. Anonymous says:

    Pretty sure Ezzard could have left his comments as ‘favouring developers’ and not limited it to ‘international developers’. Just check the farce at the top end of South Sound where you now have reclaimed land all sanctioned, wrongly, by the CPA. Want to dig out lakes to 30 feet, no problem, experts say no deeper than 20, lets ignore them…want to build a 6 foot fence to keep out burglars, no sorry, no can do. Look, development is necessary, but you have to have a some boundaries, if developers know they can do x y and z, they are usually fine, if they think they can do x y and z IF they get the right person on the board it’s not fine.

    • Anonymous says:

      Ezzard is one who defends Caymanians. I applaud him regardless of who dislike it. If you are a non-caymanian developer and don’t like it you can leave. It is that simple. There are lots of other developers out there that still finds Cayman an attractive place to do business.

  11. Anonymous says:

    Good gracious me! Finally, the rule of law has prevailed in Cayman. Still a long way to go but thank you, Mr Justice Panton.

    • Anonymous says:

      Those are my exact sentiments.
      Let’s not forgot to Ezzard for his PAC revelations that help bring this matter to light, and the ruling possible.

      I thank them both i.e. Justice Panton & Mr. Ezzard Miller

  12. Anonymous says:

    Thank you Court system. It is about time the CPA stops just approving anything that comes to it.

  13. Anonymous says:

    “He said government must also address the issue of the ground level as the Kimpton hotel has made a mockery of the planning law”
    Seemed legit…

    What is the point of having a moratorium on the number of storeys of a building if you’re going to lift it when it pleases you? Or pleases the CPA… XXXXXX

    Curiouser and curiouser

  14. Anonymous says:

    The lack of regulations is intentional. It suits both developers and politicians.

    Ask yourself which politicians have been responsible for the Ministry of Planning for the last thirty years. It’s a short list.

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