NCC clarifies ability to direct CPA via DoE

| 27/07/2021 | 20 Comments
Cayman News Service
Balboa Beach

(CNS): The National Conservation Council voted on a motion at its latest meeting to clarify its ability to delegate certain functions of the council to the director of the Department of Environment, as provided for in the National Conservation Act. Almost four years ago, the NCC delegated its power to direct agencies, mainly the Central Planning Authority, to turn down projects that threaten the environment to the DoE director.

But a recent finding of the Planning Appeals Tribunal challenged the director’s ability to act on behalf of the NCC to direct the CPA to turn down an application in relation to the controversial Balbao Beach development.

Since the conservation law was passed more than eight years ago, DoE Director Gina Ebanks-Petrie, who is also a member of the NCC, has used that delegated power to direct the CPA to turn down applications in relation to only two developments, Balboa Beach and a project in West Bay on the beach at Boggy Sands.

In both cases it was because there were few, if any, mitigating circumstances that could prevent these projects from causing further damage to the marine environment. But with the recent successful appeal by the owners of the Waterfront Centre, the developers behind the Balboa Beach project, this one tool that the NCC has to protect the shoreline from the very worst kind of development has been undermined.

As a result the council voted on another motion to make it clear that the DoE director, based on consultation, research and technical evidence, can direct the CPA on the NCC’s behalf and put a stop on specific types of individual developments that pose a threat to the environment that simply cannot be mitigated, meeting the intent and purpose of the conservation law.

The motion confirmed that pursuant to “Section 3(13) of the Act, the Council delegates to the Director all functions and powers of the Council under section 41 of the Act, including but not limited to the issuing of instructions under section 41(5), the imposition of conditions under section 41(5)(a) and binding instructions to an originating authority under section 41(5)(b) directing the originating authority to refuse to agree to or refuse to proceed with the proposed action. D) This delegation of functions and powers to the Director under section 3(13) of the Act includes, but is not limited to receiving, processing, imposing conditions or directing refusal at the Director’s discretion, executing and communicating such decisions/actions.”

Given that it is the DoE and not the NCC that has the technical expertise, every decision made by the NCC in any event is informed by the work undertaken and the advice given by the scientists working at the department, who are employed because of their qualifications.

When it comes to major projects or planning applications made for waterfront development, the DoE never fails to undertake the necessary screening and assessments to ensure it submits the information to planning in time for each meeting. Despite the elevation that the conservation law was supposed to give that advice, the environmental considerations submitted by the DoE to the CPA have rarely prevented any development from going ahead or even led to much more than the most superficial conditions to mitigate potential harm to the environment.

The only time that the DoE can go beyond recommendations and advice on mitigation is when there are no mitigating measures that can be taken to stop very serious environmental damage. However, the recent successful challenge to this power has raised sufficient concern for the NCC to lead to this ratification.


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Category: development, Land Habitat, Local News, Science & Nature

Comments (20)

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  1. Anonymous says:

    Just let the guy build on his land!!

  2. Anonymous says:

    More dictatorial policies under the PACT government. We are soon going to be lining up for toilet paper

  3. Leo Merren says:

    Let’s read the law shall we…

    National Conservation Act, 2013 – Section 3(13):
    “The Council may delegate any of its functions, OTHER THAN THE MAKING OF ORDERS AND THE ISSUING OF DIRECTIVES, to the Director or to any committee or subcommittee of its members.” [emphasis added]

    The National Conservation Council (NCC) cannot delegate the authority contained within Section 41(5) to the Director of DoE! The NCC is acting in contravention of their own law by voting on and passing this motion.

    To carry out Section 41(5)(b), the NCC should convene a special meeting, issue the directive to the CPA to refuse the application (or other originating authority), and the minutes of that meeting communicated to the CPA by the Director of DoE.

    This is exactly what the Planning Appeals Tribunal said in their ruling and the NCC is blatantly ignoring it and not following the law which inadvertently and ironically will continue to put the environment it is charged to protect at risk!

    https://legislation.gov.ky/cms/images/LEGISLATION/PRINCIPAL/2013/2013-0024/NationalConservationAct_Act%2024%20of%202013.pdf

  4. Smile Too Much says:

    The National Conservation Council can stand on its head and shout ‘Delegate!’ until the cows come home, but the National Conservation Act is quite clear in its intent. S.3(13) says “the Council may delegate to the Director any of its functions, other than the making of orders and the issuing of directives.”
    So where the Act under s.41(5)(b) says “if the Council considers that the adverse impact of the [CPA grant of planning permission] cannot be satisfactorily mitigated by conditions [imposed by CPA], the Council shall so direct the [CPA] and that authority shall refuse to agree to or refuse to proceed with the [grant of planning permission]”, it means that the Council and only the Council, may so direct the CPA to refuse planning permission- not the Director. And no matter what the Council believes or discusses or decides in a meeting, the law is the law…

  5. Anonymous says:

    Thank heaven. Wish this had come sooner. Why was this specific project not named in the ratification? Also, will the planning appeals decision be taken to court?

  6. Anonymous says:

    No one person should be delegated that level of authority. Especially certain persons.

    • Anonymous says:

      Why not? The rule of law still governs them, doesn’t it, or have we lost all confidence in our institutions?

      • Anonymous says:

        The rule of law means nothing to certain people in our government. Hopefully, our PACT government will make the changes necessary to correct this. For too many years it has been that the people in charge did whatever they chose in order to enrich themselves. The time has come for change! Are you listening, Mr. Premier?

    • Anonymous says:

      I am fairly certain the Director will not simply throw a dart at a board to make decisions but will be guided by the very well qualified group of resources available at the Department of Environment

      • Anonymous says:

        If you review the decisions objectively, you will quickly find this is indeed likely the method used.

      • Anonymous says:

        I do not share your confidence – based entirely on factual history of past decisions.

    • Anonymous says:

      This is really scary stuff! No ond person should be given that degree of power!

    • Anonymous says:

      27@5:53pm – Well, a body of persons (the CPA) doesn’t appear to be willing to stop any developments of it’s own will, detrimental to the environment or not…so, what’s wrong with someone with the designated authority appropriately stepping in? That authority has certainly not been abused by the present DoE Director.

      If your aspersion about “certain persons” was directed to that Director, please note, there are MANY of us who respect what’s left of our natural environment and who wish the Director had used that power many more times!

    • Andrea Calderon says:

      Totally agree!

    • Anonymous says:

      Certainly not a Civil Servant.

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