NCC’s ability to stop bad developments challenged

| 02/06/2021 | 70 Comments
Cayman News Service
Balboa Beach project

(CNS): The Planning Appeals Tribunal has returned for reconsideration an application that was declined by the Central Planning Authority after finding that the refusal was wrong because of questions over whether the Department of Environment is legally able to direct that board on behalf of the National Conservation Council without an explicit signed order for the case.

The refusal related to a September 2020 application for a deck extension and filling at the Balboa Beach project on the George Town waterfront. The DoE found that there was no way to mitigate the detrimental environmental impacts on the marine park of what the developer wants to do there.

Through powers that the law gives the NCC, the technical experts at the DoE directed the CPA to turn down the application.

At the appeal hearing on Friday, despite the controversies surrounding this development, the environmental problems caused and the numerous enforcement orders, Sammy Jackson, the attorney representing the landowner, Kel Thompson, and the company, Waterfront Centre, behind the project, argued that the DoE does not have the power to direct the CPA. He added that even if it did, the directions made in this case were unlawful because there is no course of redress for the applicant.

Jackson was not required to mount much of an argument, however, as the Attorney General’s Chamber, which represented the CPA, failed to defend the claims that the board was wrong when it acted on direction from the DoE, simply accepting that it was unlawful and conceded the point without argument.

Despite the fact that the DoE submitted an extensive memo outlining the major issues with the project, stating in the first sentence that it was acting under delegated authority from the National Conservation Council (section 3 (13) of the National Conservation Law, 2013), the PAT found there was no evidence that the NCC had delegated the authority to actually make a direction to the CPA to refuse planning permission.

The tribunal recognised that this was a matter of public interest and said it needed to be clear how directives from the NCC that are made via the DoE are sanctioned. PAT Chairman Richard Barton said that the DoE director must be operating under some mandate from the NCC but in this case there was no documentation to state that and a step in the process was missing.

Jackson submitted that the idea of one government entity telling another what to do was “rife with risk” because this was challenging the right of a landowner to use his property as he wanted. He suggested it was not right that a government entity be given such “draconian powers” to direct the CPA where environmental considerations are involved in a decision.

Barton found that the CPA had refused part of the application (since, despite recommendations from the DoE, other elements were approved) on the basis that it believed there was an official directive from the NCC to the DoE. He said there had to be a process by which the DoE becomes the surrogate for the NCC. However, he did raise the point that there was no indication as to why the CPA had not asked how the DoE director had arrived at the position that she had the power to direct the CPA to turn down the application based on environmental concerns.

In his oral decision, Barton said the matter was to be remitted back to the CPA for another hearing as the decision to refuse the application was erroneous in law. He said that neither the CPA nor the tribunal had seen a document signed by the relevant agents or members or anyone with authority on behalf of the NCC to use the powers under the conservation law to direct the CPA to decline an application.

This decision calls into question the very little power the conservation law provides to protect the environment from the most egregious and dangerous development just at the point when the new PACT Government has been elected on a commitment to sustainable development.

In this case, the DoE, as the technical experts, wrote a 40 page memo on behalf of the NCC pointing out the significant and ongoing problems with the Balboa project. The department outlined concerns over the extent of the unauthorised works that have taken place on the site over the last few years, including those being addressed in this particular application, all of which was happening adjacent to a Marine Park in the heart of George Town.

Among the many issues raised, the DoE had concluded that nothing could mitigate the detrimental after-the-fact work or the additional work the developer wanted to do, and had used the powers under the law to put a stop to the environmental threats.

This is understood to be one of only two occasions when the DoE has gone beyond making recommendations to the CPA to refuse planing permission and directed them to decline an application on behalf of the NCC because of environmental issues. The other occasion was the controversial application for a house on the Boggy Sand cabana site, though the planning minutes reflect that the application was refused because it didn’t meet the required high watermark or front and side setbacks.

A date has not yet been set for the application to be re-heard.

See the DoE memo outlining the issues with the Balboa project in the CNS Library.

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Category: development, Local News

Comments (70)

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  1. Anonymous says:

    So it seems the CPA messed up, showing they do not know what they are doing.

    So who will be removed from the CPA for this costly mistake? perhaps the chairperson should go.

    Although as the CPA have little practice in turning down planned construction, as they usually rubber stamp everything, so the shock of saying no to an application must have been a shock to all the CPA members.

  2. Anonymous says:

    But he still chooses to represent the developers who have absolutely no regard for the environment. Doesn’t sound like someone who would have “fixed” any laws which would limit what these developers want to do.

    • Anonymous says:

      If you would like to hire him to help the doe you’re most welcome to- that’s kind of how lawyers work

  3. Anonymous says:

    Do I understand correctly? When the DoE waited for the NCC, the CPA said that was ‘unfair’ and decided the application for Dart’s new hotel without waiting for their advice.

    And then when the DoE didn’t wait, but instead used their delegated powers, the CPA said that was unfair too.

    So in all situations our environment loses.

    • Anonymous says:

      No, you are not understanding the issue at all… sorry. Wait for the written decision which will hopefully make this easier to understand than this bizarre cns summary.

    • Anonymous says:

      No one ever heard about “environment” until foreigners came here.
      Now every wannabe do gooder tree hugger keeps saying it alongside “sustainable”.

      • Anonymous says:

        That’s probably because no-one was in Cayman until foreigner arrived to settle.

        They then got their slaves to change their environment until emancipation meant they had to do it themselves.

    • Plain Talk says:

      Hon Premier Wayne Panton,

      this type of fiasco cannot be allowed to continue. The Director of the Doe everyone by now is aware that she is and will always be a fierce defender of our environment. That is not to say that she he is unreasonable , however she does need a clearer framework to work by with all the necessary policies and processes that cross departmental or councils boundaries re-examined to prevent this type of fiasco. Moreover, there certainly needs to be a much stronger effort to inculcate the value of a sustainable environment to our current and future growth , these to be by continuos programs that highlight how mismanagement can affect all ( locals and foreigners, developers and naysayers) and how all can play a part in its sustainability. Remember there are those who come to work and leave, there are locals who call this permanent home and there are those who come here to work, but love what we have and are generally willing to assist in the conservation efforts.; and yes there are those who don’t give a damn.

      To achieve measured goals, there must be inclusiveness , strong will of government and of the people, including people who are outside of government who are like Mr. Sammy Jackson and others who have a vested interest in the future of these islands. With this the minority will be held at bay while the environment will certainly have longer days.


  4. J. Samuel Jackson says:

    With the greatest of respect, this article is seriously misleading and seems to ignore the really salient matter which was in issue, which was the legitimacy of the CPA’s decision, which was based on a directive which was issued by the Director of Environment, directing the CPA to refuse planning permission.
    It is a matter of fact (and law) that under the National Conservation Act (“NCA”) the NCC currently enjoys a wide array of very significant powers, some of which are arguably unconstitutional, to protect the environment.
    The problem here was that the NCC never made any decision or finding that the development in question was “bad”.
    The report which contained the “directive” that lead the CPA into appealable error was written by the DoE (not the NCC) and it expressly stated that the Dir of DoE was exercising authority delegated to her under Section 3(13) of the NCA, which section expressly states that the NCC cannot delegate their authority “to issue a directive”.
    The DoE report also curiously stated that NCC was issuing the directive, but to date no such decision of the NCC has been produced. And, if there had been such a decision, it would be null and void in any event, since it would have been arrived at in breach of the rules of natural justice, since the landowner has never been notified of the intent to make such a decision by the NCC, and was certainly not allowed the opportunity to be heard on that matter.
    So, this was simply a case of the Director of the DoE exercising authority authority that is reserved exclusively for the NCC, thereby rendering the “directive” ultra vires and, consequently, the CPA’s decision was erroneous in law.
    That is why Crown Counsel fairly and appropriately conceded the appeal and the PAT’s decision is lawful and rational.
    So, for CNS to spin this into some kind of evil developer and his lawyer flouting the environmental initiatives of the NCA is grossly misleading, to say the least.
    It is also important to bear in mind the provisions of Section 19 of the Bill of Rights in the Constitution, which provides that all actions and decisions of a public official must be lawful, rational, proportionate and procedurally fair.
    From the evidence before us, it appears as though the Director of DoE failed on every element of that constitutional guarantee.

    • Anonymous says:

      Please note the lawyerly way of “directive” becoming directive. The lawyer redefines the terms how they want. Next the lawyer will be defining themselves as a conservationist.

    • Anonymous says:

      I completely understand the legal aspect of the case, but what I, and many people I’m sure, want to know, is how does the DoE or any other organisation stop a development which is extremely bad for the environment? We are always told that they have no legal power, and that the CPA has “no choice” but to approve all the projects, so how does this change? Are there ANY laws that protect the environment? I’m asking this seriously, and not tongue in cheek, as it seems like the developers always win because they can afford the lawyers, and it’s extremely frustrating for the rest of us who were stupidly hoping that this time, the environment will “win”.

    • Anonymous says:

      What a totally disingenuous summary, Sammy you represent Fin and you represent Kel. Prior to your electioneering you wore your resistance to the national conservation law as a badge of honour. The public is fully aware of Kel’s and Ryan’s and Crighton’s disregard for the law and the environment – it is a matter of public record.

      • Anonymous says:

        Nothing disingenuous about his response. Unlike you, he responded politely, respectfully, and most importantly, truthfully.
        He’s already said himself on CNS that he “publicly opposed that law, not in concept, but rather the way it was drafted, simply because it was written in the form of National Park styled legislation, writ wide across the entire country, with complete disregard for existing lawful due process and landowners rights”.
        Only an ignorant person like you and the people who liked your comment would blindly believe everything you read in a run-of-the-mill news article without knowing all the details. There is simply a lot more to this story.

    • Anonymous says:

      Sammy do you think the proposed works are good for the environment ?

      Take a look at all those rocks and orange Mark that is all over that nice beach which looks like total crap now not to mention the huge environmental impact putting all that silt into the water. The water is still murky to this day when it used to be clear.

      Have a conscience Sammy.

      • Anonymous says:

        Do you people think this is Sammy developing this??? I hope you’re holding all the criminals lawyers responsible to the murders/robberies etc too!??

      • Anonymous says:

        Maybe you should have a conscience for his innocent family members, for whom he has to put food on the table… I don’t agree with overdevelopment either, but the man has to make a living somehow, and at least it’s an honest one.
        And btw, Kel Thompson is the developer, not Sammy. Blaming the lawyer is like blaming the construction workers.
        Sammy has also represented clients who fought against certain large-scale developments, but if he does so again, I wouldn’t expect that to get nearly as much attention.

  5. Anonymous says:

    CNS, the AG chambers did not “fail” to defend the appeal, they conceded that the CPA HAD ERRED IN LAW. That was the legal duty. You seem to believe attorneys duties are only to their clients, they are officers of the court. If an attorney fails to concede a matter they know is bound to fail then they can be held accountable by costs order. You need to be careful how you report legal matters because there is a big difference in failing to defend and conceding. If you don’t understand the law then ask somebody who does.

  6. Anonymous says:

    This is the same Sammy Jackson who told us how environment friendly he was in the run up to the elections.

    • Anonymous says:

      It’s the same one who warned you all that the laws don’t work and need to be fixed, he probably would have fixed then by now too because unlike some of the others that got elected he seems to actually know the law.

      • Anonymous says:

        But he still chooses to represent the developers who have absolutely no regard for the environment. Doesn’t sound like someone who would have “fixed” any laws which would limit what these developers want to do.

        • Anonymous says:

          Anonymous, show me your hands, are they cleaner??? What do you do to help? Nothing? Thought so!

        • Anonymous says:

          Since you’re such an expert on life and all things, why haven’t you fixed the law? Go ahead.. redraft it.

  7. Anonymous says:

    A little knowledge is a dangerous thing. The issue is this- the DoE director gave a directive to the CPA to reject the application. The DoE direct does not have that power, the NCC has such powers but cannot delegate them to anyone and even if they could they didn’t here. Hence, the DoE/Director had no authority to direct the CPA. The CPA erred in law in following an illegal directive. It’s not difficult but when the news only reports half the story it is easy to be confused.

    • Anonymous says:

      A little knowledge is a dangerous thing. CNS kindly posts the raw material so that we can check for ourselves. Like the DoE document in question. Which is clearly not a Directive like those issued by other government agencies. So apparently Sammy the conservation political candidate is arguing that anything which says ‘don’t mess up the environment’ now has to be a Directive. Wait until he tells you what the process is to get a government Directive issued. The CPA is safe. Our environment? … not so much.

  8. Anonymous says:

    Kel is a disgrace to the Caymanians.
    The entire CPA board is a joke.

    Forget politics, you want to change Cayman. Protect the environment that’s your best chance in legal terms and progressive terms.

  9. Anonymous says:

    Sammy Jackson as in the one that was running for politics? Alden isn’t the best but damn! At least we know his intentions! Thanks God Sammy did NOT get elected!

    • Anonymous says:

      I bet he is too! Can’t imagine what trying to tuna country full of muppets who don’t understand law must be like.

    • Anonymous says:

      Know his intentions? This is the kind of work that Sammy has always done and he was very transparent about it on the campaign trail. If he was elected, he wouldn’t even be doing this. He wanted to enhance legislation so that developments like this wouldn’t be built in the first place.
      And he’s not upset about the loss btw. He’s nothing like Alden, who would have probably had an immediate heart attack if he lost since he needs to be an MP in order to survive.

  10. Anonymous says:

    It won’t last long anyways, nothing he builds does.

  11. Kman says:

    Greed will ruin a good man and Kelly you’re not an aota better than your development loving brother Gene. You’re happy to fill your pockets at all cause, even if it means destroying our beautiful islands. Sammy, well now the light shines on your true character and shows your lack of honesty and humility. Pretty sure you’ll be advising many more big developers.

    • Anonymous says:

      It’s called being a lawyer lol

    • Anonymous says:

      Imagine that- a lawyer doing their job, representing clients against the government taking illegal actions like faking directives. The shame. Hope you’re never subject to any of the many many illegal government actions that go undefended day by day.

      • Anonymous says:

        You guys expect lawyers to give you free advice- do doctors give you free healthcare?? If you want advice then hire him.

  12. Anonymous says:

    Perhaps a another way to explain this in a legally correct manner is that the Director of the DoE unlawfully issued a directive that she did not legally possess. Your article makes it sound as though the PAT overruled the directive because of some nebulous reason but in reality the problem is that the Director of the DoE and the NCC simply refused once again to play by the rules and act in accordance with their powers under the actual law. If you want to exercise a power under statute you need to follow the rules of law. It’s that simple. If we let government act unlawfully we will be a third world dictatorship really quickly!!

    • Anonymous says:

      Or put it another way, given the NCC has been packed by Alden with development friendly clones, including a dart apparatchik, The Director decided she would go ahead and do what the NCC should have authorised her to do without asking.

      Solution is the same – change the NCC composition or give the DoE some teeth instead of the endless round of them objecting to development and the CPA just ignoring them. Of curse, that would require Wayne to actually live up to some of his election promises, so soon come I guess.

  13. Anonymous says:

    Sadly, Cayman as a “new” country simply does not have a 100-200 year old history of laws that have been vetted and revised and improved. Until this legislative/judicial history matures, events like this will be rampant – we are at the mercy of the ethics of landowners, developers and the lure of profit.

    • Read The Fine Print! says:

      Au contraire, mon sot. The Cayman Islands has had a set of rules for property development for many years and which is based on sound UK (and other Commonwealth) precedent. Simply put, it allows landowners under those rules to improve their property for personal reaons (enjoyment?) which may include selling those improvements to others for a market-related profit (willing seller, willing purchaser).

      Those same rules allow neighbours of a landowner’s proposed improvement two opportunities to object to it- first by petitioning CPA and then by appealing CPA’s consent for the improvement (or otherwise) to a Tribunal. The ethics of landowners is not an issue, and the lure of profit has always been socio-economically attractive. The rules were set up nearly 50 years ago to prevent landowners from indiscriminately turning the Islands into a developmental mess as land value increases started to seed opportunism amongst landowners.

      The rules work. This appeal is all about the correct application of those rules and not about circumventing them.

      • Anonymous says:

        “The rules were set up nearly 50 years ago to prevent landowners from indiscriminately turning the Islands into a developmental mess as land value increases started to seed opportunism amongst landowners.

        The rules work”.

        WOW! What rock have you been hiding under? Your statement in defense is EXACTLY the horror that has happened. NO, the rules do not work, the landowners have repeatedly sold out, and the island IS a developmental mess.

        Your ignorance is as bad as your poor translation.

  14. Anonymous says:

    Seems like the courts are the place for real redress. Next time DOE and NCC should bring their own lawyer. A properly prepared lawyer might argue that the property owner should first ask the NCC whether the DOE was authorized. In other words who is the planning appeals tribunal to decide questions between the NCC and Doe?

  15. D. Truth says:

    The Department of Environment was formed to preserve the beauty and wildlife that is natural for the Cayman Islands. Without the Department of Environment, there would be individuals and businesses that would do away with anything that might PREVENT these said individuals and businesses from ignoring the laws that prevent them from any destruction of our natural environment. Any action by ANY PERSON destroying this environment should be punished to the full extent of the law.

    • Anonymous says:

      If the Department of Environment would stop overstepping its bounds at every opportunity, it would be more successful in its mission.

    • Concerned says:

      I don’t see as much uproar relating to dumped rubbish all over the place including cars and large trucks. If they’re not damaging the environment I don’t know what else does…

      It seems to me the use of environmental issues is merely a tactic to stop development rather than genuine concerns to look after it. It’s more like ‘NIMBY’ – not in my back yard – related jealousy and obstruction than people with a genuine environmental concern. If you really do have an environmental concern get out of your gas vehicles and power your homes with solar. But I guess that would entail you spending money and god forbid you actually do something to help the environment/planet that actually means something.

  16. Anonymous says:

    Normally a new government gets 6 months or so before the electorate realizes that all the promises they made would fade away in the face of political expediency. First McKeeva, now the failure to reform the boards and protect the environment. Hell, Kenny Bryan is talking about the need to reinstate cruise ship tourism, and Wayne’s only response on reopening is to blame expats for the vaccination rate.

  17. Anonymous says:

    Let’s see if Minister Panton walks the walk on this one or was it just an empty campaign promise. We need more balls from our politicians and DoE’s policies on conservation needs to be enshrined in legislation with very sharp teeth. Be the developer son of the soil, status holder the same law needs to apply equally to stop this madness.

  18. Anonymous says:

    The AG doesn’t understand the concept of being on the right side of history – Eg. Marriage equality, cruise port and now the environment. This AG needs to GO NOW!

  19. Say it like it is. says:

    An example of Cayman at it’s worst, scratching peoples backs if they scratch yours, rules our waves and everything else.

  20. Jokers says:

    Glad you didn’t get elected Sammy. Shame on you.

    How much is enough Kel? Just go away and leave the island in peace.

  21. Anonymous says:

    Wow not even two months later

  22. Anonymous says:

    Kel is a law unto himself and causes more harm to Cayman’s environment than most foreigners.

    • Anonymous says:

      Frankly, the next storm should wash Balboa Beach clean off into the waterfront.

      If you can’t hear, you feel.

      • Anonymous says:

        And that unnatural beach sand will smother coral.

        • Anonymous says:

          Lungs of the earth not the rainforest. What happens when it’s all gone? Who will the ministers and politicians blame? We the people for not stopping them.

    • Anonymous says:

      The DOE and NCC only act in an advisory capacity.
      The COA is not bound by their decisions and opinions .

    • Anonymous says:

      Nothing stops the Thompson’s from doing whatever they want. Nothing.

    • Anonymous says:

      I am SOOOO glad Sammy Jackson didn’t get elected. This is the second time he has chosen (yes, I’m assuming he could have turned these jobs down) to represent big developers in their fight against environmental concerns. I now really hope that the PACT government introduces laws to give some power to DoE with regards to these very damaging projects.

      • Anonymous says:

        There’s a different in fighting against the doe acting legally which they weren’t. The problem is the does is either incompetent or willfully acting outside of the law. Every person, even kel, has a right to law- it’s the doe’s own fault if they don’t do things correctly! It’s not that difficult, just act in accordance with the law.

      • Anonymous says:

        If he was elected, then this wouldn’t be his job. He doesn’t have a desire to destroy the environment, but he has to put food on the table for not just himself.

      • Anonymous says:

        The man is a Caymanian development lawyer and has a family and therefore needs to earn a living.

        Question, is he coming in after the fact (which certainly appears to be the case) and defending his client or did he give advice before the Thompson’s did construction? And did Thompson follow his advice.?

        If you can determine that he gave Thompson advice to proceed before construction then you can involve his politics. If you can’t then you are purely being bad minded.

        • Anonymous says:

          People only see what they want. Sammy has tried for years to help government improve the development laws because he has by far the best understanding of them of any person here. Government failed to listen, government pass poorly drafted laws and the authorities continue to fail in the duty to take advice on legal aspects of the laws. It’s not his fault- he probably would be fixing it but as it stands this is his job. Government can do theirs too!

    • Anonymous says:

      Foreigners have been exploiting the environment and society for over a century now in the Cayman Islands for economic gain. While every Caymanian sat by and allowed it to happen. Yet y’all have nothing but energy to attack your own. Not defending Kel or the Thompson family at all, just curious as to how that works?

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