Court confirms NCC powers in Boggy Sand case

| 23/08/2022 | 128 Comments
Cabana at Boggy Sand Beach

(CNS): The National Conservation Council does have the power to direct government bodies when their actions could have an adverse effect on protected areas or species, the Grand Court found in the long-awaited ruling in the ‘Boggy Sand’ judicial review, which was released Tuesday. The judge also found that the NCC can delegate that power to the director of the Department of Environment as an expert and intrinsic part of the council, settling an important dispute between two government entities.

The case centred around a controversial decision by the Central Planning Authority to ignore a DoE directive, made with the authority of the NCC, not to grant planning permission for a project in West Bay that posed a significant threat to the environment. But the legal battle was really about the position adopted by the CPA that it was not bound by DoE directives.

This 51-page decision settles that dispute in favour of the environment and ensures that one of the most fundamental goals of the National Conservation Act can be achieved by lawfully preventing development that poses a threat to either the marine and terrestrial environments that cannot be mitigated.

Justice Alistair Walters found that in this instance the CPA acted unlawfully when it approved the application to rebuild a cabana and seawall on Boggy Sand Road in West Bay, and as a result the court has now quashed this planning approval.

Premier and Minister for Sustainability and Climate Resiliency Wayne Panton, who was the architect of the conservation law when he served in the 2013-2017 PPM-led Cabinet, said the ruling clarifies the important role the NCC plays in safeguarding protected areas and species in the Cayman Islands.

“Not only does this decision confirm the legal relationship between the National Conservation Council and the Central Planning Authority, it also clarifies the implications for all other government entities, giving all parties greater certainty and clarity going forward. I would like to thank the courts for their consideration of these important legal questions,” he said.

“As the ruling notes, the National Conservation Act is a bespoke piece of legislation, developed specifically to protect our invaluable, uniquely Caymanian marine and terrestrial habitats and species. A viable, functioning natural environment is foundational to a resilient economy and healthy communities,” Panton added.

The NCC applied for judicial review in 2021, shortly after the CPA approved the Boggy Sand application. This was despite the negative impacts it was likely to have on the Seven Mile Beach Marine Reserve and the significant concerns that the DoE had outlined clearly in its submissions to the CPA on behalf of the NCC, directing the board to refuse planning permission.

NCC Chairman McFarlane Conolly said the council was pleased with the court’s ruling, noting the efforts of his team to sort out this disagreement.

“This decision provides clarification on a fundamental difference of interpretation of the National Conservation Act between the NCC and CPA, which we tried many times to resolve before the NCC applied to the court as a final recourse,” he said. “The decision confirms the council acted lawfully in
its delegation of powers to the director of the Department of Environment, and that we have acted in accordance with our legal mandate under the National Conservation Act,” he said.

DoE Director Gina Ebanks-Petrie noted the wider implications of the court’s decision, saying it would “ensure environmental concerns are factored into decision-making processes across the Cayman Islands Government, particularly where actions may, or are likely to, have an adverse effect on a protected area or protected species critical habitat”.

The case was the first in Cayman where two government departments had been pitted against each other and the chief officer in the sustainability ministry, Jennifer Ahearn, confirmed that the decision to take the matter to court was not taken lightly.

“We believe this ruling brings us closer to our constitutional mandate of ensuring the Cayman Islands Government shall, in all its decisions, have due regard to the need to foster and protect an environment that is beneficial to the health and well-being of present and future generations,” she said.

Ahearn added that all involved were now looking forward to the CPA and other entities working more collaboratively with the NCC in their considerations.

This is not the only occasion where the authority of the DoE and NCC in respect to planning decisions has been challenged. In at least one case where the CPA refused planning permission on the basis of a directive from the DoE, the applicants used the dispute as grounds for appeal before the Planning Appeals Tribunal.

Following the news of the ruling, there was no immediate comment from either CPA Chairman Ian Pairaudeau or Planning Minister Jay Ebanks.

See the full court ruling in the CNS Library.


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

Comments (128)

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  1. Judicial Review Watcher says:

    From the judgement:

    “the parties were not engaged in these proceedings in an adversarial way but rather were placing the various issues before the court in order that they may be resolved”

    Now that the issues have been resolved, the CPA, in their minutes from Tuesday 30th August:

    “The CPA resolved to appeal”

    https://www.planning.ky/wp-content/uploads/meetings/Mcpa20.B22.pdf

    What a complete waste of money. Good thing Haroon Pandohie confirms that he has “sufficient funding” with which he can line his friend Sammy’s pockets.

  2. Anonymous says:

    Keep talking George….the thumbs up for your comments is a key indicator of how many wotes you would get should you ever run in elections.

  3. Anonymous says:

    One would think that such an important case would go before a seasoned judge

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    • Anonymous says:

      Yeah, because the amount of time Alastair Walters has spent on the bench is the issue, or undermines the judgment. Well, it’s no doubt going to appeal so we will see if you are right or just bitching because you don’t like the outcome.

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  4. Anonymous says:

    The wrongful builder saw this decision coming and sold their house across the street. Already it’s demolished.
    And then afterwards left this gift of eroding junk slab for the people of Cayman to not enjoy.
    So why wasn’t a sale alert/notice or lien placed on the land side property before they dodged their responsibility here and fled like jackals?

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    • Anonymous says:

      No they didn’t. Your post is nonsense.

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    • Court of Appeal to over turn says:

      Sorry to say that the standard of decision coming from GC has fallen. From the Gay marriage decision to this. Too much emotion and no law. This GC decision can not with stand an appeal to the COA.

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      • Anonymous says:

        “the standard of decision coming from GC has fallen”.

        The only standard we have in decision making is SH*T.

    • Anonymous says:

      You’re hilarious. Do you people just make things up on the spot or is jumping to conclusions the only exercise you get? The land across the street has Planning approval for a new structure and includes demolition of the old structure.

  5. Orrie Merren 🙏🏻🇰🇾 says:

    In R (on application of the National Conservation Council, Central Planning Authority and Cayman Property Investments Ltd) (unreported 23 August 2022: Cause No. G 207 of 2021) at [79] per Grand Court, Hon. Justice Walters, remarked, pertaining to the “relevant law in relation to the delegation is”, as follows:

    “A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well-known principle of law that when a power has been conferred to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another.”

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    • Anonymous says:

      Read the decision. The law itself provides for delegation to the Director.

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      • Anonymous says:

        Only with a lot of creativity

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        • Anonymous says:

          Possibly, but the grounds for decision were actually something else entirely: the CPA itself was bound by the statute to apply to the NCC for permission before issuing its approval to the owner. It didn’t do it, so its approval was a nullity. The opinion on delegation is probably “dicta” and not precedent (unless the court of appeal decides to affirm on those grounds instead.)

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        • Anonymous says:

          So true.

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  6. Dave says:

    Does this mean the east-west extension can be blocked by the NCC/DoE?

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  7. Anonymous says:

    what happens now to the structure in BS Rd? Does the owner just let it fall into the sea? Is that not worse for the environment?

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    • Anonymous says:

      They can reapply to fix the sea wall, if that’s what they want/need to do to protect their property. Remember, the case was not really about the building (which was what they applied for, fixing the sea wall was a bonus), but about the CPA not wanting to believe they could be told what to do (or not do in this case) by anyone.

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    • MP says:

      If they reassessed the Mean High Water Mark along that section, then they (and their neighbour, most likely) would need to tear it down and return the land to the public.

      Just a suggestion…

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    • Anonymous says:

      Good point. What now happens to Kel Thompsons shack on North Church Street. The appeals tribunal told him to reapply to CPA over a year ago. Of course he has not done it and CPA sit on their ass.. So typical.

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  8. Anonymous says:

    Excellent decision however before the ink was dry you know that the development cartel has been working with the politicians and the relevant people in the senior civil service to have the Development and Planning Act amended to eliminate the role of the NCC and the public for that matter.

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    • Anonymous says:

      Excellent yes….so long as anyone against a particular development does not abuse this precedent as yet another way to delay a legitimate project.

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      • Anonymous says:

        Red Herring. The grounds the NCC can direct on are pretty narrow. Essentially If you’re not impacting a protected area they can’t say No. And if you are impacting a protected area, why are you doing that? Stay out of the Protected Areas. Simple.

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        • Anonymous says:

          It can still be used as a delaying mechanism.

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          • Anonymous says:

            You see, 1:48, those who have investments on WB road love the NCC as it keeps their property value high. NCC fights development everywhere else on the island, their properties remain in demand.

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        • Anonymous says:

          11:11 am Not totally correct. The almighty NCC also has a say re protected species….not just protected areas.

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          • Anonymous says:

            Only the critical habitat of a protected species, which has to be approved by Cabinet.

          • Anonymous says:

            As opposed to the almighty CPA? Cause that was working so well for everyone?

            (And almighty? Really?)

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            • Anonymous says:

              Caymanians should be granted protective species status.

              • Anonymous says:

                We already have it, in the Immigration Law. Stop trying to make it like there is some incompatibility between being Caymanian and being concerned for (a) the environment and (b) the rule of law. Thats a really disgusting, self-loathing, attack that I expect from the expats who don’t like us and hate to see from our own people.

        • Anonymous says:

          Incorrect- if you read the judgment it sounds like the director can use this for any property within 500 ft of the coastline which is pretty different than just the protected areas. That’s strange Somethings off here

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          • Anonymous says:

            Incorrect!! That is a location trigger for consultation.

          • Anonymous says:

            Location is only a trigger for consultation. Hundreds of consultations result in “no comment” or recommendations, most of which CPA refuses to implement. Water Authority, NRA, fire service all get to submit too.

            But if NCC is never notified, how can they make any assessment?

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    • Anonymous says:

      10:39 am If you had a clue or proper intel, you would know that the Development & Planning Act doesn’t mention a role for the NCC. It’s the National Conservation Act that does that.

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      • Anonymous says:

        They do reference the National Conservation Act, Section 51(1)(ad) saying they will not derogate from it.

    • Anonymous says:

      Development Cartel. Apt name for a group of people who don’t give two sh_its about sustainability.

      Sustainability to them is a marketing word.

      • Anonymous says:

        “Sustainable Growth” is an oxymoron in Cayman and nothing but a marketing buzzword developed so they can keep on destroying everything.

        There’s no such thing as sustainable fishing either….

        Reminds me of other buzzwords like “Center of Excellence” which is corporate jargon for “Sweat Shop”.

    • Anonymous says:

      The Developer Cartel.

  9. Anonymous says:

    What specific right has been taken away?

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    • Anonymous says:

      They can rebuild. Just not to their neighbours detriment. Is that not also my right, as a neighbour?

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      • Anonymous says:

        So, is it a ‘first come, first serve’ basis?

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        • Anonymous says:

          Many thangs, which are rights, have to be applied for — that is called regulation of rights, which are qualified rights.

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          • Anonymous says:

            Tell that to Mr. Dart please. He’s the one with all the “rights” i.e.$’s ! Closing rights of way to our best beach. Is that right? Or is it money in the pockets of those in authority who let him do it?

        • Anonymous says:

          No, its a ‘keep your silt on your property’. Stay out of the Protected Area (or your neighbour’s land) and its not an issue of who was first.

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    • Anonymous says:

      Except that wasn’t quite what they applied to do, now is it? They applied to build a new building on the property (not rebuild). Rebuilding the seawall as an extra item. (Because otherwise there would be no land to build their new building on.) They applied to build a new building because their old one is unfit for use, since the land is unfit for use. So basically they applied to build new land, and a new building, behind a new sea wall. Its clearly more complicated than ‘a right to rebuild a damaged structure’. (Which its not a right if you have to apply for it, now is it?)

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    • Anonymous says:

      Actually that right (requirement per Planning Act under maintenance) still stands. The owner “must” repair the seawall where it exists as was approved right now. The CPA thought it would be less detrimental to build a new wall further back inside the existing one but I guess public expert opinion wins…so repairing existing damaging seawall it is!

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      • Anonymous says:

        Thank you- finally somebody who sees it as it is

        • Anonymous says:

          No, they can still apply for the setback seawall again if they follow the process required in the law. The CPA decision was killed off for their failing to apply to the NCC for permission/conditions since its a protected area and thats required.

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  10. Jonas says:

    Boy Jorge George you sure have a way with words don’t you.

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  11. Anonymous says:

    Funny thing about Cayman. The Caymanians who are most in favour of development are the very ones who hate expats the most. Some very confused people.

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    • Anonymous says:

      10:09 am And the white elite rabid environmentalists are the ones who support this NCC court case and have no understanding or regard for the average Caymanian needing to make a living….and this judgement will definitely affect them.

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      • Anonymous says:

        While sipping on their oat milk lattes after spin class.

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      • Anonymous says:

        Ha ha. Oh no, how will the “average Caymanian needing to make a living” (but who can’t be white apparently) ever be able to build their beach-side cabanas now? Get Real.

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  12. Anonymous says:

    Its a step in the right direction, but what about the entire planning approval process and all the bodies/agencies/govt arms involved? the entire thing is the Wild West where money talks and the weak walk

    I too a walk along West Bay Road at the weekend, what a horrific monstrosity is being erected at the northern end – this WaterMark? Its more like a skidmark (think childrens underpants) on the landscape of Cayman – how has this received permission, they’ve basically built it on the road and put a bizarre reflective alien star trek bridge across

    And then we have Lacovia, did they leave any square foot of that land empty in the plans? Talk about over building.

    And we have the ‘turkish’ palace across from Wendy’s, my lord its truly horrendous

    and on it goes, even our savior The Dart Lord of the Sith is recklessly pouring cement all over the lands – why didn’t he just build this latest hotel on top of the road it too is so close and obnoxious…and he continues to pave paradise and put up parking lots as we get even more car parks in camana bay (did they never think of putting in a few taller multi storey car parks and creating more green space? they have moeny to burn so why not?)

    people, planning is so beyond control, the main island is lost to cement…just wait for south sound to completely sink as more and more swamp land (which is what south sound is) gets filled in

    what have we done?

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    • Anonymous says:

      What have we done??? It appears to me that we have let CPA take millions of dollars for themselves and ignored the law.

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    • Anonymous says:

      Don’t worry, DART is putting aside 1 acre for every 1 they rip up in the Central Wetlands once that road goes through……and when they start ripping up the Brac and Little Cayman…….

      Paradise Lost longtime Bobo.

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    • Anonymous says:

      What have we done??? We have let a group of greedy people make decisions that make it possible to get themselves unbelievable amounts of money and everyone seems to look the other way! And……. it has been that way for years!

    • Anonymous says:

      Why don’t you ask the Kirkconnell’s? They sold Royal Palms to Dart. Why didnt they invest 200-300 million and build a Cayman style hotel? The problem is Caymanians selling out to developers who then get their developments approved by boards controlled by Caymanians. Why do you keep blaming the developers? They are doing what they do best.

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      • Anonymous says:

        Are developers genetically programmed, incapable of any other way of life, like some parasitic wasp or virus?

        • Anonymous says:

          Being a developer is a choice, not something you are born into. Asking why developers go for profit over the environment is like asking bank robbers why they rob banks.

          • Anonymous says:

            There are now a ton of “developers” in Cayman…The Barauds, The Johnsons, Schilling to name a few who didn’t know how to mix concrete until 6months ago…..and now are experts telling Cayman what we need etc and not giving a flying F about anything but $.

  13. Anonymous says:

    “Climate Resiliency” The left is insane.

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  14. Anonymous says:

    Will there be an appeal filed ?

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  15. Cicero, de re publica I.3: says:

    They even say that Xenocrates, that eminently noble philosopher, was once asked what his students should pursue; he responded that they should learn to do of their own free will what they were compelled to do by the laws.

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  16. Anonymous says:

    This is THE best news I have received in a long while! It is a win for our fragile environment and the overall safety of these islands.

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  17. Anonymous says:

    The only logical outcome. CPA’s assertion that it does not even consult initially on 41(3) basis, reliance on legal counsel for applicant’s advice and failure to give reasons all nails in coffin of their case.

    CPA will have to change their ways.

    NEA, and all the rest, take note.

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  18. Anonymous says:

    OK, wonderful. But now we can expect Ahearn and Gina to be moved from their posts for standing up for the environment and getting in the way of business doing business. The CPA must not be opposed!

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  19. Anonymous says:

    Boom shakalaka!

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  20. Robert says:

    Finally alight at the end of tunnel…Cayman needs to stop destroying it’s natural habitats
    We do not have an infinite amount of land and once we bury it under concrete we can no longer get it back….

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    • Anonymous says:

      The CPA chairman and the whole of the CPA need to immediately be re[placed as they wanted to see this project be done as well as other garbage applications; like where the developer in the Red Bay area is clearing land to store materials and make it a sales yard. These boards stink of to much buddy buddy with the money people. They also need to be stricter on these developers who go ahead and do things completely against the law, only to get an “after the fact” approval.

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      • Anonymous says:

        Yes remove them and at the same time Wayne can do a reshuffle and remove Jay’s responsibility for the Planning Dept and CPA. That boy is out of his depth.

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      • Anonymous says:

        Agreed. Need a whole new Board that completely disregards the Planning Laws and Regulations and refuses applications even when they meet all the requirements.

        Also give them discretion to increase or decrease after the fact fees/fines. I’m sure we would never get a Board that would use that same discretion badly to reduce the fee for their friends while quadrupling it to the little guy who can’t afford it. What could go wrong!!

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  21. Anonymous says:

    Great, now the owner can sue the CPA for ignoring the law.

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  22. Anonymous says:

    Finally a win for the environment!! First time I’ve ever seen it in all my 54 years!!!!!

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  23. Anonymous says:

    this is great news!

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  24. Anonymous says:

    NCC is irrelevant.

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  25. Anonymous says:

    The Rule of law! Thank heaven for that. Now can customs sue WORC, and pensions sue health insurance, and health insurance sue the NAU, and someone, anyone, sue customs. Then we might have something approaching principles of good governance.

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    • anon says:

      nau does not approve health insurance, they only accept the applications.

      • Anonymous says:

        But they should be concerned when employers are not providing legally required health insurance and the agency responsible does nothing.

        Not my job…

        Almost entire civil service operates on that basis. Nothing gets done. No one is responsible. Our country is destroyed.

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  26. Anonymous says:

    Thank God for common sense, DOE, NCC and Gina. Long time coming.

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  27. Anonymous says:

    Nobody will be working with the NCC and their ill informed gross overreach.

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    • Anonymous says:

      Except, according to the Judge it was the CPA exercising ‘ill informed gross overreach’. Face the truth. It will set you free.

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    • Anonymous says:

      7:24 am Correct. And the country should be alarmed by this decision. Development will slow…..as if Caymanians aren’t suffering enough.

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      • Anonymous says:

        That’s what they said when the national conservation law was being passed. And development did not just continue it increased. Stop the FUD.

      • JTB says:

        The kind of development we are getting does not help Caymanians at all

  28. Anonymous says:

    Is it me or does this structure look like its slowly about to fall into the ocean? Take a look at it from the road when you get a chance…

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  29. Anonymous says:

    Hallelujah!!!

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  30. Anonymous says:

    At last a sensible answer to what should have been obvious. CPA became out of control because there is too much discretionary powers in the law, so when there are persons who have no discretion they became all too powerful.

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    • Anonymous says:

      They got out of control because the developers can influence the decisions. How can a senior member of the board also be a major consultant to major developers? Doesn’t that lead to some conflict of interest?

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  31. Anonymous says:

    Yay!!! Well done Ms. Ahearn on taking this to judicial review and having this issue settled once and for all.

    The CPA operate like some kind of mafia to their own self-advantage 100%. This is exactly the check they need. More of the same please!!

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  32. Anonymous says:

    Yeah. Just Yeah.

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