CPA makes terse response to Boggy Sand ruling

| 26/08/2022 | 87 Comments
DoE Director Gina Ebanks-Petrie and lawyer Kate McClymont, who represented the NCC at the judicial review, in front of the cabana at Boggy Sand

(CNS): Central Planning Authority Chairman Ian Pairaudeau issued a terse statement on Thursday about the Grand Court ruling in the judicial review of the ‘Boggy Sand ‘case indicating that the board’s lawyers are reviewing the judgment but made no comment on the findings. The ruling found that the CPA had acted unlawfully when it ignored a directive by the National Conservation Council (NCC) to refuse planning permission for a project in West Bay that threatened the marine environment.

But the main point of the decision was to clarify that the NCC has the power to make such directions to the CPA or other government entities whenever there is a serious threat to a protected habitat or marine species.

The case was triggered after the CPA ignored a directive by the NCC, made via the director of the Department of Environment, not to approve planning permission for a landowner who wanted to tear down and rebuild a cabana and seawall on Boggy Sand Beach.

The existing structure had been built far too close to the ocean and is failing, and the owner wanted to rebuild a new wall and an even bigger two-storey building on the exact footprint. Not only did the application fall far short of the high water mark setback, given that the structure is now in the sea for most of the year, but it also posed a direct threat to the Seven Mile Beach Marine Park.

After the CPA ignored the directive from the NCC and efforts by the council’s chair to resolve the difference in interpretation of the law failed, an application was made to the courts. The result has resolved the long-running dispute between the NCC and the DoE on one hand and the CPA and the planning department on the other by clarifying the meaning of the law.

The point of the unprecedented legal case, which saw one government entity take on another in a courtroom battle, was to get that clarity on the dispute. But Pairaudea’s statement gave no indication that the CPA had accepted the ruling.

“The decision of the Grand Court dated 23rd August 2022 is currently being reviewed by the CPA and its legal counsel and upon completion of that review, the CPA will make any further statements on the matter which the CPA determines to be appropriate at that time,” he said.

This comes after Premier Wayne Panton, the minister for sustainability, said the ruling confirmed the legal relationship between the National Conservation Council and the Central Planning Authority.

But the decision is also important because it solidifies PACT’s stated policy of sustainability and the importance of protecting the environment, especially in planning decisions. As the minister who steered the National Conservation Law through Parliament (then called the Legislative Assembly) in 2013, it was important for Panton to ensure one of the basic aims of the law is upheld.

Given that the NCC was forced to make the unusual move of taking action against another government entity and a politically appointed board, it has been apparent that the Ministry of Sustainability was hoping that the ruling would bring the matter to a close, as stated by chief Officer Jennifer Ahearn, who said the decision to go to court was not taken lightly.

“We look forward to the CPA and other entities continuing to work more collaboratively with the NCC in their considerations,” she said following the release of the important judgment.

Meanwhile, Planning Minister Jay Ebanks, who is responsible for both the planning department and the CPA, has not yet made a statement about the judgment.


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Category: development, Laws, Local News, Politics

Comments (87)

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  1. Anonymous says:

    Please CPA…go with the quash. Dont appeal it. Let’s see what law DoE can pull out of thin air to stop the owner repairing the existing, approved seawall and cabana right where they are. Its time for the all knowing public to see what the repercussions are of not understanding the law.

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    • Anonymous says:

      12:53 That sounds like a plan.

      Then we can keep trying to figure out why SMB is changing / disappearing and carry-on in the same fashion; then blame everyone but ourselves for the utter stupidity that permeates every F**KING decision made by our Leaders / Boards across every facet of Cayman life.

  2. Anonymous says:

    For years the Director has been informing the country of the environmental affects and little respect has been shown to her. The right decision was made to the the court sort it out.
    Each set of persons appointed to the CPA is no better than the other. Appoints to such an authority must be persons not for political stake. There are enough intelligent persons around withno affiliation to construction,real estate etc to chose from then we will see no such happen as the Boggy situation and others we have seen that should never have been approved.

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    • Anonymous says:

      Yeah good luck understanding what you’re looking at in order to discern what those WITH backgrounds in construction and development are able to recognize. Why not put trust fund babies on a financial board while you’re at it.

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  3. Anonymous says:

    How is it the Director of Planning does not get a mention. Isn’t it his department and the planning officers who are actually directing this disaster?

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  4. Anonymous says:

    “No indication that CPA had accepted the ruling”

    Let’s get one thing straight here. CPA does not have a choice. If CPA does not accept the ruling, CPA is in contempt of court and all its members should be jailed until such time as CPA does accept the ruling.

    Enough of these people acting illegally and irrationally. All of them need to brought onto a very short, very harsh leash.

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    • Anonymous says:

      CPA does have the right to appeal. They in fact have two choices: 1, accept the verdict or 2, appeal. If they choose to appeal then it is up to the appeals court to rule.

      • Anonymous says:

        Honorable chairman and his fellow board members will defiantly appeal because no one can ever question any decision that the CPA makes. Are you people gone mad? Do you know how development will be affected if the CPA can not just do as they see fit? These members know business and how important that getting developments by foreign (whether status granted or not) investors is critical to our economy and livelihood.

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        • Anonymous says:

          Ha ha! You’re funny! At one time they done as they pleased. Now it isn’t quite so cut and dried. Personally, I don’t have a clue what the heck they’re doing………. and neither do they.

    • Anonymous says:

      Heard of the concept of appeal? Until the deadline for an appeal expires, or an appeal is lodged, CPA is at liberty to ignore the ruling.

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  5. Anonymous says:

    I’d be surprised if the international real estate interests are not now and will overwhelm local needs. As long as investment properties over $1M do not face an ad valorem property tax, Cayman will be targeted by super rich in the world to store and hide their wealth. Banks are regulated to prevent money laundering. Is real estate? Should our limited beautiful island continued to be exploited by developers and international overlords? At least pirates of old did not displace those who provided safe harbour. Beloved Isle, prepare to quickly look like every poor, overdeveloped, high crime, small island where only the politically-connected and rich thrive amidst the exploited servant classes.

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    • Anonymous says:

      Excellent observation.

      The new garb for Pirates Quarter 2022 should not be fictional garish ensembles and pirate ships

      Simply dress like the colonizers. Ask a Filipino friend to tag along and borrow a BMW or Audi SUV.

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    • Anonymous says:

      That ship has long since sailed me hearty!

  6. Anonymous says:

    Perhaps Gina and the NCC should start spending this ocean of cash they appear to be able to find when it suits their political aims, to order new enforcement boats and other equipment. Most DOE vessels are long overdue due for replacement and/or unfit for the job asked of them due to incompetent procurement and/or maintenance.
    And whilst she’s at it, she could shake up a few of her own staff and their work shy approach to enforcing conservation laws. Specifically, she needs to investigate all private work or interests conducted during duty time and stop public funds being used to support individual financial gain.
    Gina is one of the few true guardians of Cayman, but she really must see what’s under her nose and ensure her worthy legacy isn’t tainted by complacency.

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    • Anonymous says:

      Booth sides of this case are government entities. Both spent the peoples money in court to get a ruling about their powers. Do not blame Gina and the NCC for spending. Like wise CPA spent the peoples money. This was something that had to be settled for the sake of Caymans future. The court has ruled in favor of NCC. There will most likely be an appeal, but that remains to be seen. I am glad it went to court. the always question of who really has last say has now been settled. Subject, of course to appeal. Then the courts will again decide.

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    • Anonymous says:

      If the DOE really wanted to do some good they would start constantly patrolling SMB for jet skiers, illegal fishing in the marine park, replacing dive site mooring balls and generally showing a presence to create good behavior on the water. Their presence in the SMB area along with the North Sound is sorely lacking and all too familiar to their “Brothers” at the RCIP.

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  7. Anonymous says:

    Just listen to who is calling others nimbies. Put his brain in a Ching-Ching it would fly backwards.

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  8. Anonymous says:

    George, you say you want to run for office, but just about everything you say will ensure that doesn’t happen.

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  9. Anonymous says:

    Mr. Chairman your board lost the case. You are neither the court nor the DOE. Aren’t you ashamed of the cavalier way your board has acted- and netavively affected the aesthetics’ of Cayman? Stop the wonton disregard. Sometimes your way is not the best way. You know better, please act accordingly

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    • Anonymous says:

      3:39 pm You’ve obviously not read the agenda and minutes of the CPA decision which was anything but cavalier.

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      • Anonymous says:

        Cavalier: asking the laywer for the applicant if they think the decision should be ‘no’.

        I read the minutes. Cavalier is the nicest thing you can say about how CPA treated this particular issue. Illegal might be another, which is what the Judge said.

    • Anonymous says:

      Shame from a Cayman Board member?

      That’s a good one.

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  10. T says:

    Let this go CPA – a blind man can see this building should not get approved, other than approval to be completely torn down!

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    • Anonymous says:

      Ignorant comment.

      Existing seawall and cabana have vested planning approval from years ago and from previous CPA.

      There is NO law available to hr CPA or any other entity/authority – not even DoE – to order either structure to be torn down. Plus the owner has the right, is in fact held liable to keep both in good repair.

      The CPAs optons were a) approve new seawall (and cabana) inside existing seawall or stand by and watch owner repair existing seawall (and cabana) that are causing deterioration of coastline.

      Maybe you should read the agenda and understand the details of this application before posting uninformed comments and unrealistic solutions.

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  11. anonymous says:

    Now can we remove that dreadful building of Kel Thompson on North Church Street. It serves no purpose and the Appeals Tribunal sent it back to the CPA almost two years ago. It breaches the setback laws on three sides.

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  12. Anonymous says:

    Only the lawyers are celebrating…………

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  13. Realestate agent says:

    Not the chairman it’s all the political crooks he has to work with taking $$$ under the table from developers and filtering the monies through nefarious businesses here and there ! big wheels and big deals .

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  14. Anonymous says:

    The CPA is not fit for purpose if they cannot see that this development is not in the best interest of the Island. They should all be replaced immediately.

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    • Anonymous says:

      They should have been replaced YEARS ago!!!

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      • Anonymous says:

        Another idiotic comment. The CPA got replaced last year July 2022. But they must work within the legal parameters of the same Laws and Regulations as the previous Board(s).

        If you want to see change, lobby your MPs the update the Laws and Regulations instead of expecting the current Board to ignore and break the laws which ironically is what you all accuse the developers of doing but now expect the CPA to do. Hypocrisy at its finest.

        • Anonymous says:

          12:43 excellent observations. Thank you !

        • Anonymous says:

          You meant to say that the CPA must work within the parameters of the law, including the national conservation law, which they have refused to do but we expect they will do from now on after this ruling.

  15. Anonymous says:

    Developer-allied construction principals should be automatically disqualified from eligibility on the Central Planning Authority. Ian Pairaudeau was with McAlpine Construction since 1988, was their MD, and they were bidders and recipients of government’s construction tenders for decades. It would be difficult to find someone more conflicted. Even now, not accepting judicial finding against him. Tells you everything you need to know about the mindset.

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    • Anonymous says:

      9:57 am Not only has the Chairman been unaffiliated with his former employer for several years, his integrity is considerably greater than those on previous CPAs. And the judicial finding was not against “him”, but the CPA as a whole.

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    • Anonymous says:

      LOL

      Posters: these MPs have no experience or qualifications in XX to be able to do their job.

      Also posters: people who understand or practice construction or development should not be allowed on a Board that overseas and understands construction and development.

      Cant make this s#!+ up!!

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      • Anonymous says:

        Whether you deserve a variance from the construction rules, such as setbacks or height restrictions, is not really a matter of construction expertise. They have a staff to advise them on the fine points of construction techniques.

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        • Anonymous says:

          Incorrect. Some matters are beyond planning regulations and require knowledge of the building code which is not information that can always be advised by the Planning staff. And no, Planning and the Building Control Unit (BCU) are two differently staffed departments (which only people in the Devt and construction industry understand) and the latter does not, or at least rarely and only in very special circumstances, advise on applications that go the CPA.

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          • Anonymous says:

            The planning staff tells them if things meet code. If not, the CPA decides if the deviation should be allowed. This is not rocket science and does not require “experts.”

            • Anonymous says:

              Sorry bud. Planning staff are not IRC or IBC trained. There was an attempt to have a few cross trained back in the early 2000s (under Cayman Islands Building code) but it didn’t get far. And now we have adopted IRC and IBC 2009 and not aware that one member in Planning is certified in either.

  16. Save our environment says:

    Great job Gina Ebanks-Petrie and attorney Kate McClymont who continues to succeed against poor choices and policies of tyrannical boards, the previous PPM governments and their politically appointed boards.

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    • Blues lose clues says:

      As far as I recall Ms Kate ultimately lost all her cases against the last Government. She and Gina will lose this one too on appeal.

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    • Anonymous says:

      I find the efforts of Ms Ebanks-Petrie and Ms McClymont more than outstanding!

      THANK YOU LADIES!

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  17. Anonymous says:

    OK now can they please stop Primsa / any other large developments currently in the permitting process?

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    • Anonymous says:

      Not what the challenge was about or for.

      If you want ‘large developments’ stopped you’ll have to work with your Parliamentarians and the Planning Law Review Committee recently established. (Remember them?) Perhaps to get more public comment back into the Planning process (and having to be taken note of by the CPA/DCB). (Hint: Public comment ‘rights’ got reduced several years ago after the Trust lodged objections which were unwelcome by the developers in power.)

      Of course you’ll also need to get population & development planning (social & infrastructure & zoning) on the table too.

      Hard discussions need to occur. There are no easy answers. (Though in this narrow case there clearly was. CPA just don’t want to hear it.)

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    • Anonymous says:

      The CPA will never stop the development applied for by friends. Especially the large one. They will instead continue to approve waivers and approve shoddy work at the large developments.

  18. Anonymous says:

    Nothing will change.

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  19. Anonymous says:

    ‘Nuff said. Time to move on from this.
    (With the law clarified and CPA acting in accordance with the law, not reacting to the ruling. It wasn’t against them, it just clarified the law for all sides to follow. No need to argue about it any more folks.)

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  20. A Torny says:

    What is going to happen now is the CPA will consider the application again, note the NCC view, say it has been considered and the reissue exactly the same decision.

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    • Anonymous says:

      8:02 am Attorney you ain’t. The CPA’s decision was quashsed. They can’t reconsider the application without the applicant making a new/fresh application.

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  21. Anonymous says:

    That hideous eyesore needs to go.

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    • Anonymous says:

      The owners tried to repair and correct yet the DOE would prefer it fall into the sea.

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      • Anonymous says:

        The owners applied for permission to tear down and rebuild a cabana that had been built too close to the sea.

        So grant permission for the first phase and everybody, except the owners, is happy that the right thing is done.

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  22. Anonymous says:

    In light of this ruling, anywhere else in the world, the CPA chairman and his board would either step down or be fired or simply replaced..In Cayman, they will hold on to their position power and their pay even when they are disgraced publicly.

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    • Anonymous says:

      And will spend more taxpayers money going to appeal.

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    • Anonymous says:

      There are numerous instances of authorities and boards literally ignoring court rulings they find to be inconvenient. The system is allowed to operate as a sham – an artifice operated to placate the people of these islands and provide an illusion that we consistently apply the rule of law. #Leggewasright.

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    • where's the accountability? says:

      Actually, the way it works in Cayman is that government wrong-doers are suspended WITH PAY indefinitely — until they reach retirement — whereupon they retire with full pension! (Translation: Taxpayers be damned !)

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      • Anonymous says:

        And then re-hired in another Gov position thereby drawing a wage and double pension. Brown envelopes. Favours called in. Family ties exploited and funny handshakes all round. It’s the Cayman way.

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        • Anonymous says:

          Cayman learned it from the Britts.

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          • Anonymous says:

            Cayman needs to take responsibility – not blame the Britts. Grow up – don’t blame your parents cause you are an uneducated, irresponsible adult jerk.

      • Anonymous says:

        And votes are bought.

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      • Anonymous says:

        8:08. Pure rubbish. The private sector boards are responsible for his travesty.

        They can all be sacked.

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    • Anonymous says:

      7:38 am Be careful. You may eat those words.

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    • Anonymous says:

      You tell em Chairman Pairaudeau, no one messes with the high and mighty CPA! How do they expect Cayman to prosper unless you honorable members just let all these developers wishes to get carried out. Think this might mess with the consulting business?

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