Jackson argues DoE had no authority to direct CPA

| 17/06/2022 | 124 Comments
Sammy Jackson

(CNS): Local attorney Sammy Jackson, a planning law expert who regularly successfully advocates on behalf of developers before the Central Planning Authority, represented the CPA in court on Wednesday. Jackson argued that the Department of Environment had no authority to tell the board to refuse planning permission for a structure and seawall on Boggy Sand Beach.

During the judicial review, in which two government entities are pitched against each other, Ian Paget-Brown QC, who is leading the CPA’s legal team, said that it could not be right that thirteen members of the CPA “could be told what they can and cannot do by one civil servant”.

But when the judge said he had not seen anything that showed how the CPA had dealt with the environmental issues in this case and asked what the usual process was when a proposed development threatened the environment, Paget-Brown handed over to Jackson.

Jackson told the court that planning law was “an obscure area” and there were no written rules of procedure that guide the CPA, just a long-established process that follows administrative law and the rules of natural justice.

He argued that in this case, the only issue really identified in the DoE’s technical submission was the impact on the marine environment during construction, and given that the CPA had included the requirement for a silt screen, it was obvious that they had considered the advice.

He said it was absurd to suggest, as the lawyer for the NCC and the DoE had said, that the CPA had ignored the DoE’s technical analysis because it ignored the directive to refuse planning permission.

He also argued that the NCC had not properly delegated its authority. “There is no evidence before this court of any express authority to delegate [the NCC’s] authority to the director of the DoE,” he said, and criticised what he believed was a draconian provision in the National Conservation Act that allows a civil servant to stop a development.

The question of whether or not the DoE director can, on behalf of the National Conservation Council, direct the CPA to refuse planning permission to a proposed project when it poses a threat to the environment is central to this case. While it also deals directly with the specific controversial application to rebuild a seawall and cabana on an existing site where the current structure is already falling into the sea, the ability of the DoE to prevent detrimental development is also at issue.

DoE Director Gina Ebanks-Petrie had submitted a review of the application by Cayman Property Investments Ltd to the CPA ahead of a hearing last September. On the basis of delegated authority from the NCC, she directed the board to refuse permission based on a number of environmental threats, such as beach erosion and direct damage to a marine protected area.

But the CPA ignored the direction and approved the application. The board contends that there was no signed document or proper authorisation supporting the director’s claim that the NCC had delegated its authority to her.

Jackson and Paget-Brown both argued before the court this week that Ebanks-Petrie had no legal power to direct the CPA. They maintain that there is no blanket delegation to the technocrats at the DoE, and the NCC must delegate its authority for individual applications. The DoE, however, argues that the NCC does have the power and has directed the DoE to make the assessments and then the directions, which are ratified at the council’s quarterly meetings.

Chris Buttler QC, who is leading the DoE and NCC’s legal team, told the court that the delegation of the NCC’s power under the law was not meant to be for each individual decision on an application because that would be impractical. He argued that the NCC could not meet every time any public body might be making a decision that had a potentially adverse effect on the environment.

The case could have a significant impact on the current government’s policy because a key part of the conservation law was to ensure that the environment was considered by the CPA when making its decision. In the past, this has played no part in the decision-making, which has led to the country’s degraded natural environment.

The case was presided over by Justice Alistair Walters, who is expected to deliver his decision shortly.


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Category: development, Local News

Comments (124)

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  1. Anonimous says:

    So what are we doing about the level of sea level rising???

    https://apnews.com/article/climate-european-parliament-union-and-environment-336524fead81e58eb755ba004880f201

    Antarctica’s so-called Doomsday Glacier is losing ice at its fastest rate in 5,500 years, raising concerns about the ice sheet’s future and the possibility of catastrophic sea level rise

    The hole in the Ozone Layer allows UV Rays to melt the Glacier faster than it normally would without the Ozone Layer protection, the direct UV Rays also causes Cancer and sea levels to rise

  2. Anonymous says:

    Maybe we need a Environment Board made up balanced and experienced individuals and take it away from a single DOE individual. DOE seems to be too extremist and could do much more to purchase sensitive areas rather than resort to subterfuge. They have too much authority and little safe guards.

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  3. Anonymous says:

    Ah, why don’t we petition the Government to buy the property and pay for it through the money that has been growing in the conservation fund? Anyone heard of eminent domain? Simple.
    People who own land don’t care who buy the property. They just need a check to retire or pay off some other property.

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    • Anonymous says:

      That is EXACTLY what needs to be done. You cannot just bypass this and refuse to allow people to develop land they own by the DoE directing they cannot develop it- if Government wants it they have to buy it, simple.

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    • Anonymous says:

      Absolutely not. The Environmental Protection Fund is not there to bail out development failures. Nor is it for any other random project the government seeks to greenwash.

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      • Anonymous says:

        We have to be practical. This fund is for environmental purposes, and should be used to correct the situation faced.

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      • Anonymous says:

        Wait, we shouldn’t use environmental funds to purchase areas we think need to be protected for the environment? What kind of logic is that?

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  4. Anonymous says:

    What I see in the comments is a lot of emotion but little knowledge of law or the actual facts of this case.

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    • Anonymous says:

      What I see is it would be better for the Cayman Islands if Sammy would go home and stay there.

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    • Anonymous says:

      NCC abdicated authority to DoE, which was unlawful — CPA’s argument.

      Section 41(3) of DPA was not triggered, therefore, there was no authority — Proprietor of Gazebo’s argument.

      DPA (read together with NCA) was followed — NCC/DoE’s argument.

      NNC/DoE argued that CPA’s decision was contrary to section 19 of Bill of Rights and, therefore, should be treated with anxious scrutiny and/protective oversight of the Constitution.

      I have not been commenting, but just giving a concise overview that I have been following this case.

      Supplementary written submissions still to follow (which is very smart for the Hon. Justice Walters to allow for) and thereafter we should have a ruling from the Grand Court in due course.

      Because this is still an open matter to he ruled on by the Hon. Court, I am not going to comment what way I think it should go, because that is for the Hon. Court to rule on. However, after the Hon. Court makes a ruling, I might very well have something to say, but only at that time. Not appropriate to interfere with the potential ruling of the Hon. Court.

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  5. Anonymous says:

    I agree!

  6. Anonymous says:

    I think the present state of Grand Cayman is represented by what has happened to the former Panton property on Crewe Road. Once it was a single dwelling, large, green though eventually overgrown piece of land where flowers were grown. Then it was sold (by its very much Caymanian owners, let it be said) to developers. Now, it is is covered by wall to wall apartment buildings, all with cars parked outside of course. And this is happening in even very small lots of land ( check out opposite Cayman Animal Hospital on Crewe Road) all over the western part of the island. Who is living in all these properties? How can we sustain this constant development?

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    • Anonymous says:

      Too much land banking by non-Caymanians, who do not live in the properties.

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      • Anonymous says:

        Much of what has allowed real estate agents and developers to amass great wealth is the same thing destroying the Cayman Islands, because we need to stop building for and selling to non-Caymanians.

        So many Caymanians have homeownership outside of their grasp and may never obtain a little piece of land in the Cayman Islands, because too many non-Caymanians already own it.

        Also, since Dart has been given Caymanian citizenship and is buying up so much Cayman property, there needs to be restraints put on him doing so. Remember what Dart and George Sorros did to Greece and Argentina? Don’t think Dart won’t do it to the Cayman Islands.

        Dart got what he wanted from the Cayman Islands already, which is grant of Cayman status, so that he won’t have to pay taxes in the USA.

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      • Anonymous says:

        Ah the pesky forriner again. Yaaawwwn

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    • Anonymous says:

      No one seems to remember Hurricane Ivan …God help us today one like that hits Cayman

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      • Anonymous says:

        Why would you say something like that? For us, who endured Hurricane Ivan and its aftermath, do not ever want to see a natural disaster like that ever again.

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        • Anonymous says:

          If another Hurricane Ivan comes again, the upside might be that it drives away foreigners or paper Caymanians, who only care about the economic benefits and not the REAL Caymanian people or the Cayman Islands.

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        • Anonymous says:

          Speak for yourself. I experienced Ivan and I wouldn’t mind a hurricane coming through to blow some shit out of this place.

      • Anonymous says:

        One great big festering neon distraction
        I’ve a suggestion to keep you all occupied
        Learn to swim, learn to swim, learn to swim
        ‘Cause Mom’s gonna fix it all soon
        Mom’s comin’ ’round to put it back the way it ought to be

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  7. Anonymous says:

    The CPA in all it iterations, continues to be the worst for Cayman, and Sammy is it’s lawyer. The only reason why planning law is an “obscure area” is because they want it to be.

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  8. Anonymous says:

    For 10 years the National Conservation Law was being discussed so much it was disparingly called ,”The National Conversation Law”.

    Sammy Jackson was one of the pro-developer lobbyists who successfully got amendments to weaken the law to make it ineffective.

    Now Sammy Jackson can appear as if he is some brilliant lawyer to tear apart any of the remaining possible effective parts of the National Conservation Law.

    He intentionally drafted weaknesses into the law.

    More let down of Caymanians by greedy self-serving Caymanians.

    Sammy you fooled me last election, I actually thought you were different than Alden. Now I see you are worse than Alden.

    So if the two of you are the only two candidates in Red Bay then next election day I will not be voting.

    I will go to what is left of our beaches thanks to the likes of you two.

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    • Anonymous says:

      You live on what used to be mangroves.

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      • Anonymous says:

        Every house lot is cleared dopey- but if an application looks like 💩 , smells like 💩 , it probably is 💩. This one seems to have 🩸 diamonds in the 💩.

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      • Anonymous says:

        If I bought something already built and lived in then I’m doing better then those that are destroying to build when there is already vacant dwellings.

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        • Anonymous says:

          Doesn’t matter. You’re still a hypocrite. That land was cleared to make living space for you, and you had no problem settling on it. If you’re going to anonymously berate someone, it’s best to live on what you try to put on the shoulders of others.

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    • Anonymous says:

      To weaken the law? You are delusional and over emotional. Sammy isn’t drafting laws and the chaos surrounding the conservation and planning laws are thanks to Wayne and nobody else. If we had competent legislators we wouldn’t have the issues we have here with conflicts between laws which cannot work together. Just clam down, think like a rational human being and let the court do it’s work since the legislature didn’t.

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    • Anonymous says:

      Worse than Alden? Is that possible?

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    • Anonymous says:

      Sammy and Alden????? That’s a real pair!

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  9. Anonymous says:

    More greedy Caymanians driving  nails into Cayman’s coffin.

    Sammy Jackson, like many other Caymanians, has no foresight on how unbridled construction is ignoring its negative environmental effects is destroying the very asset on which our future depends, our economically important ptimary tourism asset is our natural environment.

    Historically Ian Paget-Brown has worked in his law profession on matters which have long term benefit to the Cayman Islands.

    Having now teamed up with Sammy Jackson against Cayman’s future to promote further environmental destruction is indeed very disheartening.  It leaves one feeling with an empty hollowed out betrayed feeling of…. you too!

    It is obvious our beaches are disappearing, but it is not because of global warming or other out of local control global reasons.  Our beaches are disappearing as a direct result of local personal greed controlling envirinmentally destructive decisions by the Caymanian CPA Members and successive Cabinet Members.

    The past UDP/PNA/PPM United consistently united in facilitating destruction.

    They intentionally weakened the National Conservation Law, intending to deceive the public into thinking they actually had consideration to protect the environment.

    Sammy Jackson was one of those persons working on behalf of developers to weaken the National Conservation Law, to make it a toothless tiger unable to defend the environment against greed driven destruction.

    We now see that the environmental protecting statements made by Sammy Jackson during his 2021 election political campaign were ALL FALSE STATEMENTS. It is all about self-benefit to himself.

    The obvious stupid CPA decisions to approve construction of the houses at the North end of the West Bay Beach are all testament to the continued destruction of Cayman by Caymanians for $$$$.

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    • South Sounder Old Timer says:

      I agree. Very disappointed in Ian, Sammy and well Michael, no surprises there 😆

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      • Anonymous says:

        Another old Caymanian here..also shocked by Paget Brown. But he lives on an estate in USA and obviously doesn’t care💩 about the source of his fortune.

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      • Anonymous says:

        Is it not disappointing that DoE, on behalf of NCC, tried to stretch the law further than it allowed? Environmental protection is important, but the rule of law is superior.

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    • Anonymous says:

      Thank you so much for your well considered and articulated post. I agree with you 100%. Sammy is showing his true colours for those who pay attention. That man I would never trust and he would never get my vote. Some people will say anything for political expediency. Thank God the majority saw through the smoke screen!

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  10. Anonymous says:

    Hello! What’s at stake here? Think about it people? Don’t get caught up in politics.

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  11. annonymous says:

    Don’t worry, chaps, the good old boy network has everything under control. As usual. Old school tie, what?

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  12. Anonymous says:

    Not hard to spot the offshore lawyers comments.

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  13. Anonymous says:

    There’s law and then there is emotion. This is a matter of law and the court will decide accordingly.

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  14. Anonymous says:

    I fail to see the issue with the Director of Environment being delegated power to direct a decision on a development that is going to have clear negative impacts on a Marine Protected Area. The existing structure is falling in the sea within 10 years of being built. How can it even be re-built without creating a monumental mess in the sea for months on end (as we saw with Regal Beach just a few months ago, which was set back quite a bit further than this disaster). However, Sammy Jackson seems to think that the relevant expertise should come from a group of blokes who all have a stake in the construction industry. Not one of them with any environmental qualifications. How arrogant and misguided. What a sad state of affairs.

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    • Anonymous says:

      3:19 pm the application was NOT to rebuild the existing wall but a new wall INSIDE the existing one. NOT closer to the sea but farther away.

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      • Anonymous says:

        Not sure who you’re trying to bullsh!t here with the “farther away” suggestion, but the existing wall is IN THE SEA, and the proposed new wall will be IN THE SEA. They just want to make it sturdier, and really don’t give a damn that it is IN THE SEA because they were allowed to build it too close to the sea in the beginning.

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        • Anonymous says:

          You can believe what you want but fact is there’s an existing building that was approved years ago. I wonder if people realize the existing wall is going to collapse and take the entire boggy sand road with it. People love to live in houses and drive on roads but take no responsibility for those existing- what a condition humans are in that they can blame everyone but themselves for the way the world is.

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      • Anonymous says:

        Fanciful posturing

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  15. Anonymous says:

    We have to scrutinise the DOE just like everyone else. Who monitors and verifies their actions or reports?

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    • Anonymous says:

      Who monitors the Department of Planning? Who gave permission for this development in the first place and the huge monstrosity next to Alfresco?

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    • Anonymous says:

      You whining babies will get your due as CPA is always right and we need these developments. So what that a little damage happens every now and then. Look at all the money and jobs we are getting? Like lawyer Jackson said – the DOE has no right to tell the CPA anything!

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  16. Anonymous says:

    Its a bit rich for @12:31, the CPA, Jackson, developers and/or their apologists to come here and argue that all we have to do is politely ask the pigs who can’t/won’t learn new tricks to amend the laws, when they fought tooth and nail for more than 10 years before the Conservation Law was finally passed, two further years to prevent its actual implementation, in part only, and critical sections still remain to be put into effect.

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  17. Smilo Milo says:

    Au contraire! CPA is required to and does consider the environment in its deliberations as well as other equally important issues such as the appropriateness of the application with regard to planning law, the Development Plan etc etc.

    The ‘degradation’ of the environment as perceived, is a cumulative reduction in overall indigenous forest, bush and mangroves under development pressure by landowners, not as a consequence of CPA granting development consent. CPA is not the villain here, and neither is the Development Plan.

    If CPA deemed it necessary to moderate development intensity or density to better account for environmental degradation issues, they should do so by amending the Development Plan- which they are entitled so to do under the Development & Planning Act.

    Under this law, CPA is a politically appointed body that considers and grants or denies planning consent to applicants against a wide background of issues and constraints that it is duty-bound to consider. As a body though, they cannot be fettered or constrained by each of these as narrow interests, and it is for them to decide what weight should be given to those issues or concerns raised when making their decision to grant or deny planning consent.

    If CPA fails to take account of material considerations or takes account of some consideration which is irrelevant to the planning application, then their decision will of course be open to legal challenge. But the assessment of the consideration can only be challenged on the ground that it is irrational or perverse- which is clearly not the case.

    Unless the judge is able to conclude that the decision of CPA was so unreasonable that no reasonable body could ever come to it or that they took into account matters which should not have taken into account or conversely failed to take into account matters that they ought to take into account (the so-called Wednesbury Authority), then he cannot properly set CPA’s decision aside. NCC did not properly require that CPA deny the application, and so made the entirely reasonable decision to grant planning permission- case closed!

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  18. Anonymous says:

    Is this the same Jackson who tried to stand for the environment in the last election?

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  19. Judicial Review Watcher says:

    I wish I’d caught the Justice Alistair Walters exact words to the representative for the applicant. Hopefully there will be a transcription published

    The rep had just summed up, and made the offhand comment that they weren’t advancing the argument that the CPA had been negligent or incompetent.

    Justice Alistair Walters: “But you still could so plead”

    Big ouch for the CPA.

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    • Anonymous says:

      Just look at the pictures. The building is in the sea, it has effectively diminished the seven mile beach. We have a stretch of beach that ends with a building!

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    • Smilo Milo says:

      The CPA can be held to be unreasonable, have ruled illegally, ignored natural justice or ignored the Development Plan. They cannot be held negligent or incompetent…

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      • Anonymous says:

        And why can they not be held negligent or incompetent? It seems to fit them very well. What about the lack of intelligence they have displayed? And how about a charge against them for wasting the people’s money?

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        • Anonymous says:

          You are clearly not a lawyer or, if you are, not one that understands the issues before the Grand Court and, as such, it would be best to stop while you are not ahead — it’s a salvaging exercise at this point.

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      • Judicial Review Watcher says:

        Cheers, was probably one of those. Made me choke on my water and laugh to hear where the judge’s thinking already was at that point.

    • Anonymous says:

      What? Your imagination is running wild.. that never happened.

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  20. Unhappy Caymanian says:

    I see disjointed, ineffective govt. departments.

    Really, really surprising in this first world country.

    It’s ok. We’ll just lick our finger and see which way the wind blows when we make decisions.

    Meanwhile Cayman for future Caymanian generations continues to be destroyed…so sad.

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    • Anonymous says:

      And your own kind, Mr. Sammy, helps make it happen. What hope do you have?

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    • Anonymous says:

      10:47. You mean a private sector led CPAband private sector members of NCC.

      A civil servant tried to save the day.

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  21. Anonymous says:

    Sammy’s got to eat but why is he always on the wrong side? Makes perfect sense why he was running in the last election.

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  22. Concerned says:

    We shouldn’t even be having to argue about this. Greed, developers and the almighty dollar. It is ABSOLUTELY DISGUSTING that anyone in their right mind would even consider letting this pass through planning. Shame on everyone involved But ho-hum we are in Cayman XXXXX. Sad day when we don’t listen to the environment…

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    • Anonymous says:

      Who cares about our environment? The building should be taken down. Nature will have its way. You can fight it but it will win.

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  23. Anonymous says:

    So one guy who wants to build a gazebo in the sea after his original one is just about washed away causes two government departments to spend millions of dollars fighting amongst each and in the end he still get his way..Only in Cayman..Haven’t we ever heard the saying, “just say no!”

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  24. Anonymous says:

    The CPA could have and should denied permission. They are the ones with the latitude but if I remember right this was approved by the old “rubber stamp PPM” board. The new board should have dropped this case, in my opinion. Pitting one government department against another for a reason that could have been worked out amongst grown ass people is ridiculous and a complete waste of the People’s funds. The only people benefiting from this is the attorneys.

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  25. Fed up says:

    What the hell Sammy! Putting all this time and effort into something you know morally is wrong and not a good thing for our environment. The structure there already is practically in the sea. Too long it’s been construction, construction and now it’s time to take a serious step back and take care of what we have left. Ridiculous

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    • Anonymous says:

      Money!!

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      • Anonymous says:

        Of course it’s money! If they don’t play the game there is no money……. and you’ve surely heard of the million dollar “concessions” that get passed around. Frontline theft! Guess who is really taking the most loot.

  26. Cheese Face says:

    And we had to choose between this clown and the other clown.. smh!

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  27. Anonymous says:

    He not wrong.
    How much more will it take before they accept that this is a leadership issue at DOE?

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  28. Anonymous says:

    Planning Dept has been thumbing its nose at NCC from the start.

    Admission that it considers its consultations to be under DPA s7 and disregards duties under the NCA should be grounds for its Director to be removed from the NCC.

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    • Anonymous says:

      All this stems from our current framework regarding the approval of building and environmental conservation. The way the laws are written give DOE specific powers (which you could argue are limited or not). It gives different authority to the CPA. Who has what power and how much of it is certainly up for debate, but in the meantime under the current legislation that is the set of laws the dictate how decisions are made. If the framework is less environmentally friendly than it should be, the debate and push to change the framework. What everyone loves to do instead is just bark louder and louder that pro environment agendas be followed by an existing framework that is not inherently designed for progressing that agenda. You’re asking a pig to bark. All these groups, mangrove rangers, cayman development watch, all of them want a particular agenda and to be honest I agree with their agenda but they’re all a day late and a dollar short and barking up the wrong tree at the wrong people.
      Push to change the framework so CPA actually has to get approvals from DOE, otherwise it’s a moot point. That said, DOE has leadership problems and an agenda of their own that is not compatible with the country’s housing needs. And the fact is people need houses more than they need mangroves (unfortunately) so the houses will be built, DOE will continue to alienate itself in the corner, and everyone who already has a house will keep yelling and screaming about builders and asking the pigs to bark.

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      • Anonymous says:

        “. And the fact is people need houses more than they need mangroves (unfortunately) so the houses will be built”

        So which can you eat: the house or the fish that relies on the mangrove?

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        • Anonymous says:

          Really? Which can you take shelter in a live in: the house or the mangrove.
          Nobody denies mangroves or other ecological areas are important but if you need a house then you need a house. And the way it goes these days you can’t touch a blade of grass without someone saying you’re wrong for doing so. It starts with the mangroves, then it’ll be every tree that ever grew; and of course everyone who has a house on cleared land already has nothing to worry about as they cast stones from their glass houses.

          Also ask yourself which do you do more often: eat a fish you caught locally (for which I’m sure you didn’t burn and gas/diesel to catch) or sleep under a roof?

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          • Anonymous says:

            Classic whataboutism and strawman arguments. How many Caymanians are you so generously building the likes of Fin for.

            You do know that there are thousands of approved but as yet undeveloped lots that do not incur the likelihood of adverse affects of a protected area, don’t you.

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          • Anonymous says:

            @2:05 I agree with you. Whilst I too would like to see sensible preservation, it is hypocritical for those of us in homes to deny anyone else from building. I know this argument is not about a home but the subject matter is the same. Would a conservationist / activist who is living say in Crystal Harbour, or land where mangroves were destroyed in order to build their home, demolish their home and replant mangroves? That would be the right thing to do to align with their position on the environment, no?

            It is either, we find a way to slow the rapid growth of our population and need or face the fact that more homes will need to be built to keep up with demand.

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            • Anonymous says:

              The homes that NEED to be built arent being built. They arent profitable.

              Low income housing is sorely needed, not luxury condos and homes for investors.

        • Anon says:

          To paraphrase the illustrious Dr. Bodden: “Who are we developing for anyway?”

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        • Anonymous says:

          Seriously @1:29?
          As for moi, I eat imported stuff I buy at Fosters. Or, I whip out my smart phone and punch up some good delivery chow from the LetsEat app. All the while sitting in the comfort of my lovely house. Riddle me this my dear silly enviro-warrior: Where do you usually cook your fish or your tofu or veggie burger? A kitchen in your house? Or do you put it on a stick and hold it over an open fire while sitting on the bare ground?

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    • Anonymous says:

      Removed full stop. We replaced the CPA but the problems are still there. What is common factor.

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  29. Anonymous says:

    Well I’m glad Alden took him out! He could have refused the case on moral grounds.

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    • Anonymous says:

      I think he may have sought out the case as he had spoken out against the law when it was first made.

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    • Anonymous says:

      We have a lot more moral sinkholes than moral grounds in Cayman.

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    • Anonymous says:

      He’s an attorney and recognized planning law expert so you expect him to not take on work where he is as the best in his field as a local expert?
      Stop being naive or ignorant to the reality of how attorneys operate and get paid. This decision will be precedent setting and important for all that care about the development industry and environment. Jackson has every right to take on any work that utilizes his expertise and remunerates him accordingly.

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      • Anonymous says:

        10:13 am Precisely! And like it or not, in addition to planning law, Mr Jackson knows more about the National Conservation Law than both the premier and DOE Director put together. And sadly way more that Judge Walters too.

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      • Anonymous says:

        Nah he just looking big developer dollars that’s all

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      • Anonymous says:

        He also has the right to decline work that goes against his moral beliefs. No one soul held a gun to his head.

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        • Anonymous says:

          He makes his living representing developers! You may as well expect a criminal defence attorney to turn down all those cases where he doesn’t believe his client is innocent.

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