NCC secures JR of CPA’s Boggy Sand decision
(CNS): The National Conservation Council (NCC) was in court Tuesday seeking a judicial review of the Central Planning Authority’s decision to approve an application to rebuild a cabana and seawall on the beach along Boggy Sand Road, West Bay. Despite a directive from the NCC that it should be refused because of the serious adverse effects it would have on the marine environment, the board granted permission anyway. But the NCC has successfully secured both the legal review and a stay on the work.
The CPA’s controversial decision flies in the face of the new PACT Government’s sustainability policy and creates a unique situation that pitches Premier Wayne Panton’s sustainability ministry against Jay Ebanks’ planning ministry in a ‘CIG v. CIG’ legal battle.
In a short statement following enquiries by CNS, the NCC said that it had sought a judicial review relating to the application by Cayman Property Investments Ltd for work along the shoreline at Boggy Sand to build a new two-storey beach cabana and a replacement sea wall, with no high water mark set backs at all, effectively at the waters edge, because it believes that the board’s decision was not lawful.
“The CPA had been directed under Section 41 (5)(b) of the National Conservation Act, by the Director of Environment, acting under delegated authority of the NCC, to refuse planning permission based on the expected adverse effects on the adjacent marine protected area,” an official for the NCC said. “In granting leave for the Judicial Review, Justice [Margaret] Ramsay-Hale also issued an order for a stay on the works associated with the Planning permission until the determination of the application for judicial review.”
The NCC is looking for an order to quash this particular decision by the CPA, as well as a declaration to make it clear that a direction to an entity such as the CPA to refuse to grant approval needs to be followed, even when the direction is given on behalf of the NCC by the technical experts at the Department of Environment.
The NCC will be represented by Broadhurst LLC, who are instructing senior counsel for this unusual courtroom challenge. The CPA will be represented by Jackson Law, owned by well known local attorney, Samuel Jackson, the seasoned planning lawyer and recent election candidate who attempted to unseat former premier Alden McLaughlin from his seat in Red Bay.
Jackson has been a vocal critic of the National Conservation Law and has over the years successfully argued for numerous controversial developments that have raised significant environmental concerns. He will also be instructing senior counsel for this case, in which the Attorney General’s Chambers are playing no part.
The landowners and applicants in the case are also being allowed to join the proceedings as an interested party, and they will be represented by Travers, Thorpe, Alberga.
The application by Cayman Property was refused by the old CPA members when it came before the authority in April as an application for a house and sea-wall redevelopment. But the new board appointed by the PACT Government shocked the community when it chose to grant planning permission for a modified application in September that scaled back the project to a two-storey glass paneled beach cabana with amenities and a new wall.
No date has yet been fixed for the hearing.
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Category: development, Local News
Hmm, Jackson Law representing the CPA? The article’s description of Mr. Sammy Jackson as a, “seasoned Planning lawyer” is apt and certainly well deserved. It isn’t possible to actually determine empirically to some degree the level of Mr. Jackson’s involvement in Planning matters as the links on the CI Planning Department’s web site to CPA meeting minutes do not work. No minutes, none, are available for review to see how often Mr. Jackson appears as a representative before the CPA among other things. The casual observer could be forgiven for having the impression that Mr. Jackson is the predominant, go to representative for Planning applications before the CPA given the almost inevitable mention of him in press articles related to Planning issues, Balboa Beach, the Beach Bay hotel, Pirates’ Cove in South Sound and so on.
Given Mr. Jackson’s very high profile involvement in Planning matters it is certainly understandable that the CPA retaining Jackson Law as its representative in this litigation may raise more than a few eyebrows. Indeed it implies a certain troubling level of comfort and familiarity that the CPA may feel towards Mr. Jackson. I suggest no favoritism or impropriety, however one would think that the CPA could have easily selected other representation from the myriad of able law firms available who are not so inextricably linked by reputation to the CPA itself and avoid problems with the proverbial eye test or in this case perhaps, “nose test.”
Obviously professional ethics dictate that Jackson Law and Mr. Jackson himself must forego making representations before the CPA while it represents the CPA. But what about afterward? Win or lose, what obligations will the CPA feel towards Mr. Jackson in the future? At the very least, decorum would prescribe that Jackson Law and Mr. Jackson be precluded from advocating before the CPA for a period of time after the current litigation is concluded either voluntarily or as directed by the CPA. Five years would not seem like an unreasonable period.
Stop being so jealous. You are turning green with envy.
12:22 pm Planning Minutes link works just fine https://www.planning.ky/cpa/#meetings. Regarding Mr. Jackson’s representation of the CPA, that’s a matter for Mr. Jackson to determine in consultation with his client. By the way, CNS has neglected to advise that Mr. Jackson is instructing senior counsel Mr. Ian Paget-Brown, who has been practising law in Cayman for years and is highly respected. No doubt, he saw no conflict with the situation, so why should anyone else.
The Planning web site links now work. They did not earlier after multiple tries. A technical issue no doubt. My apologies.
Of course who Mr. Jackson takes on as a client is his own business. I merely point out for his benefit the less than ideal optics in my view of this particular choice. Who the CPA, a Government Board that routinely considers and rules on matters involving hundreds of millions of dollars annually and affects the quality of life for thousands of citizens, retains to represent it is certainly well within the public interest.
While the eminent Mr. Ian Paget-Brown may be comfortable as you say with his arrangement, one wonders what an applicant or objector appearing before the CPA will think when they find Mr. Jackson opposite them, knowing he represents the CPA’s interests. Why would the CPA risk this situation?
8:35 pm I’m sure Mr. Jackson is able to figure this out for himself, despite your pointing this out for his benefit. As another person posted, Mr. Jackson always acts ethically. He is a damn good lawyer and client advocate. I doubt any potential clients who are serious about being represented by a good lawyer are not concerned with any optics you think exist here.
Low blow. Sammy is passionate, but not unethical.
Sammy helped draft the legislation, so he might be one of the best to help the CPA.
One might say that, since Premier Panton was Walkers global managing partner, Walkers should not have their tentacles anywhere near CIG policy decision-makers.
What do you think is happening? I reserve my views.
1:32 excellent points and completely agree re Mr Jackson
I think Cartel law firms are trying to control the CI Government inappropriately.
I think Cartel law firms have been working with Alden (PPM) and Wayne (PACT) to deteriorate the ability of Caymanian attorneys (particularly practicing in small law firms and as sole practitioners) to survive much less thrive.
I think that the Legal Services Act 2020, which discriminates irrationally and disproportionately against Caymanian attorneys, is a travesty and needs to be repealed with immediate effect.
I think that any MP that votes for bringing the Legal Services Act 2020 is a traitor to the Caymanian people and deserves to lose their seat in Parliament.
I think that the NCC vs. CPA issue should have been settled behind closed doors in the PACT’s caucus meetings or otherwise, but it was not.
I think that, if the PACT is going to survive to 2025, it is imperative that their decisions and actions need to put Caymanians first, while being fair to residents as well.
I think that I know a lot more than I am going to say now, but I think that, when I am able to freely speak about things, I should speak to international journalists about all the skeletons in closets in Cayman, which people hope never see the light of day; but only after I talk to CNS and other local professional journalists about such issues.
I think it’s time for bed and I will go to sleep. Good night and God bless.
Whilst there are more important issues applicable to this matter, which I will not get into at this juncture (and I am interested if anyone (lawyers or judiciary) picks up on two very important points), it comes down to something very basic, which the CIG (and public authorities and certain purported “Supervisory Authorities”) have been failing at miserably.
Delegation of authority or, alternatively, exercise of authority by other parties (whether authorized or not) has been one of the catalysts and of much litigation, where the real winners are the lawyers and (usually) the losers are CIG (public authority, purported Supervisory Authority, government companies, and/or public officials).
Remember these words, because there going to come back here: “abdication” and/or “abrogation”. They are likely to come up.
I’m tempted to point out something else, but will not do so, because that would help out the AG on a different matter, which I have no intent on doing so.
Interested in how this turns out.
This project is just yards away from where the sand (beach) starts at Northwest Point. This could be a contributing factor to the entire 7 mile beach erosion. The Premier must have some say about this…this should not be for any other Minister to have the final decision…much less an UNEDUCATED one.
8:42 this isn’t a communist state the last time I checked. So NO single minister can have the final say here. Neither can a single Head of Department ie DOE.
No, we don’t have a communistic state here. All we have had during the last 20 years or so is greedy wannabes. I have lived under totalitarianism in some of the European and African countries and I can attest to the complete loss of freedom for all who have the misfortune to live there. Most of the leadership here has seemed to be interested in the same type of control. Discusting!
8:42 Uneducated? Would you refer to the members of the authority who gave approval for this structure to be built as uneducated? This is about common sense, and adherence to laws and regulations many of which were made by men whom you would call uneducated.
This is all about two words- ‘direct’ as a verb and ‘directive’ as a noun and how to interpret them.
Under 3(12) National Conservation Act, the Council may issue directives that set criteria and procedures for the implementation of the Act but under 3(13), reserves that power for itself only by excluding the issuance of these directives from powers delegated to the Director of Environment. The Council is of the opinion that under 41(5)(b) of the Act, its power to direct CPA to refuse the grant of planning permission in appropriate circumstances may be delegated to the Director, as it sees actually directing CPA not to grant as an act of instruction allowed to it and which may be delegated under 3(13).
The CPA has now accepted the Appeals Tribunal’s interpretation that a direction is equivalent to a directive (an authoritative instruction that indicates how an action is to be performed or an objective resolved) and therefore cannot be delegated to the Director under the exception provision of 3(13).
The National Conservation Council obviously feels otherwise, and claims that telling the CPA not to do something through the Director of Environment, is quite different to issuing instructions on how to conduct an EIA, for example.
This is going to be an interesting contest, as the rock of the ongoing development of the Islands for the benefit of its economic base meets at this very sharp end of the National Conservation Act, the hard place of implacable environmentalists who see no benefit in the resulting destruction of the Islands’ pristine habitat…
Ear to ear., no stimulus but hey comedy gold. 27% of my disposable income well spent
What is the case actually about though- it’s not about the development itself as a judicial review.
One of “controversial” parts of the National Conservation Law is that the National Conservation Council can control what happens to protected areas. It seems insanely basic that the National CONSERVATION Council would be allowed to CONSERVE PROTECTED AREAS, but Cayman is absurd.
The NCC told the CPA that the CPA was legally obligated to refuse this gong show of a house because it would seriously impact a Marine Park (DUH!! It is LITERALLY IN THE MARINE PARK). The CPA ignored that and approved it anyway.
The judicial review is the National Conservation Council saying, “CPA, you must listen to us when something would severely impact a protected area.”
I don’t think that’s right… judicial review is a question of law usually.
6:22 you are exactly correct. This is a case on points of law.
If you don’t believe me, you could try reading the article!
“The CPA had been directed under Section 41 (5)(b) of the National Conservation Act, by the Director of Environment, acting under delegated authority of the NCC, to refuse planning permission based on the expected adverse effects on the adjacent marine protected area,” an official for the NCC said.
The NCC is looking for an order to quash this particular decision by the CPA, as well as a declaration to make it clear that a direction to an entity such as the CPA to refuse to grant approval needs to be followed, even when the direction is given on behalf of the NCC by the technical experts at the Department of Environment.”
CPA says that the order has to come straight from NCC, presumably after they take a vote to make the order. This did not happen. NCC says they delegated the power to the director to issue the order. CPA says that delegaion is not allowed and they don’t have to obey the director. If you read the law it looks like the CPA is right and the NCC did not follow the law. NCC needs to get its act together and stop futzing around. Call a meeting, vote to order the CPA to revoke its approval, type up the order on NCc letterhead and send it.
4:08 you are wrong. The proposed seawall was actually BEHIND the existing seawall, so further inland, not closer to the water. If the applicant wanted to, they could simply have repaired the existing wall. Instead they took Gina’s original advice and designed a curved wall BEHIND the existing wall and Gina said that wasn’t good enough and told the CPA to refuse it. How unreasonable is that?
The DOE and NCC act only in an advisory capacity . Their advice can be noted or rejected as the CPA sees fit.
The CPA is given the power to make decisions, it would be unworkable to have three committees empowered to say yes or no to the same application.
7:57 EXACTLY !!
Unless CPA’s decision contravenes a fundamental right in Bill of Rights.
Or unless the NCC decision contravenes a fundamental right in the Bill of Rights.
Correct. Neither CPA or NCC (nor DoE) can infringe fundamental rights or freedoms in Bill of Rights.
Did you and the 8 individuals who liked your question actually read just the opening paragraph of the article? Douhhh
Do you want a medal for your pedantic assertiveness? There is therapy and pharmaceuticals, as well as commonsense and maturity, that are effective for obsessive compulsive disorder. Bet you step over all the cracks and lines in the sidewalk too. Thank you for your input, because that is noted correctly, but discarded intentionally.
Only winners here will be the attorneys collecting fees during the JR and appeals process.
Real winners: the attorneys. Real losers: the Caymanian people.
CIG cannot make decisions that are not ultra vires or not incompatible with the Bill of Rights or Constitution.
What a mess. Clean things up behind the scenes. These type of things make Cayman look bad internationally, as if we cannot control relevant issues internally. Work together.
Tree hugging environmentalists in a legal battle against runaway developers. In the end no matter the result CIG loses.
Wayne vs Jay ROFLOL
Disgraceful for two ministries and government committees to be engaged in any legal battle. This is unprecedented and speaks volumes about the PACT government
…speaks to governmental dysfunction….
One agency for the people vs. one agency for the elite developers.
POWER TO THE PEOPLE!!!
Life must be easy being so simple that you can see the world that black and white.
This judicial review matter will be interesting. Sammy Jackson, who is representing the CPA, is a seasoned planning law practitioner.
Mr. Jackson, in his earlier years of legal practice, assisted Mr. Truman Bodden (previous Cabinet Minister) in drafting the legislation for planning, which comprises the general statutory framework for planning law in the Cayman Islands.
I, for one, want a front row seat to this battle royale. Relax, put feet up, grab popcorn and enjoy the show. This is going to be a good one.
The applicant just needed to get a big hitter on board and this would have sailed through.
Look at FIN. A hideous building that was granted major deviations from every setback going. A few big hitters involved and no questions asked.
FIN looks like a South Beach design from the seventies gone wrong. Hideous.
12.15pm I completely agree, any number of deviants were involved in FIN, the ugliest condo development in our history.
Wait till you see Orchid.
FIN is the symbol modern Cayman. Greed, cronyism and conflicts of interest.
On point. Concise accurate summation.
I don’t know them well enough to know they are deviants.
However, I do agree there were a great number of deviations.
The AG is not participating? Your legal structures are loony.
11:57 obviously the AG let this happen. How else could 2 outside counsels (instructing 2 senior counsels) be paid by Government. Ridiculous.
This is legal insanity. Unprecedented in the Commonwealth.
No. Legal insanity is assigning, as AML Supervisory Authority, to a self-regulatory body, which is a private association corporate entity, that does not have all lawyers as members, which was required and which infringed human rights of attorneys and their clients, especially discriminatory against Caymanian attorneys, and expect for it to work. That is/was legal insanity and, if the public thought there were no more shocking issues to come, wait until this is all made known.