CPA will appeal Boggy Sand judicial review ruling

| 02/09/2022 | 143 Comments
Cayman News Service
CPA Chairman Ian Pairaudeau

(CNS): At a meeting on Tuesday afternoon, 30 August, the Central Planning Authority (CPA) resolved to appeal the decision by Justice Alistair Walters regarding the power of the National Conservation Council to direct planning refusals in certain circumstances. The ‘Boggy Sand case‘ pitched two government entities against each other to clarify the legislation, but it has now taken an overtly political turn.

CNS has contacted all of the relevant parties, including Planning Minister Jay Ebanks, who is now directly challenging government policy led by Premier and Sustainability Minister Wayne Panton, and we are awaiting a response. The Ministry of Sustainability and Climate Resiliency has acknowledged receipt of our inquiry and officials have said they are in the process of responding.

The minutes of what appears to have been a special meeting held to discuss this issue were posted on the Department of Planning website Friday morning. The document says, “In the matter of the National Conservation Council v the Central Planning Authority, Grand Court case G 207 of 2021, the Central Planning Authority resolved to appeal the judgment of (Acting) Justice Walters, delivered on 23rd August 2022, to the Cayman Islands Court of Appeal.”

The minutes also say that the CPA was advised by Planning Director Haroon Pandohie that confirmation was received from Planning Ministry Chief Officer Eric Bush “that sufficient funding was available to progress the appeal, if the CPA was so minded”.

The judicial review was brought by the NCC when the CPA ignored a directive to refuse planning permission for a property on Boggy Sand beach that posed a threat to the marine park. But the court findings had wider ramifications.

The legal decision was meant to settle the ongoing conflict between the NCC and the planning board about the NCC’s powers within the National Conservation Act to make rulings when specific species or habitats are placed under threat by problematic development. This was always a fundamental aim of the legislation, which was steered through Parliament by Panton in December 2013 when he was environment minister in the then PPM-led coalition government.

The decision by the CPA to take the ruling to the appeal court in what was already an unprecedented and awkward situation for the government has now raised far more questions about the collective responsibility of Cabinet and the planning minister’s support for government policy.

Taking the dispute to judicial review may have appeared reasonable to help the CPA manage appeals to the Planning Appeals Tribunal by applicants who had been refused planning permission as a result of a directive from the NCC.

But to now challenge that clarity means the CPA has moved beyond the need to protect itself in planning appeals. The politically appointed board is now challenging the law, as supported by the current government, but more significantly its policy on sustainable development.

Check back to CNS for updates on this breaking story.

See the CPA minutes in the CNS Library, as published Friday.


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Category: development, Laws, Local News, Politics

Comments (143)

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  1. Anonymous says:

    This is ridiculous, two Government departments fighting against each other. The darn building is collapsing in the sea, and changing the shoreline, remove it. The CPA should be ashamed of themselves for appealing this. It is time for the Cabinet to dismiss the CPA, and move forward.

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    • Anonymous says:

      Once again it’s not about the cabana. The NCC didn’t want it removed- they want it left the way it is

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  2. Anonymous says:

    I will have to change my podcast name
    “Airmiles with Eric” just doesn’t cut it anymore.

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  3. Anonymous says:

    It is high time for Panton to step in and stop his PACTless Clown Car from going around in these damn fool circles. This whole case is utterly, totally, hopelessly, ridiculous! It is a circus! But then, circuses are the proper venue for clown cars, so Panton’s PACTless government are in their rightful realm.
    PACTless can end this nonsense by passing legislation that gives DOE an appropriate degree of influence in the planning approval process.
    It is beyond time for Panton to lead or leave!

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    • Anonymous says:

      You’re assuming that Wayne is their leader.

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      • Junius says:

        Wayne kinda is and isn’t the leader. It’s painful to watch the dysfunctional PACT Government try to operate.

        However, give me a disjointed PACT Government over the PPM any day of the week.

        We need to carefully and responsibly vote in the next election, because we need to achieve good governance and have the rule of law upheld.

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        • Anonymous says:

          Vote? The people didn’t want this government. If you recalled the horse trading and back stabbing debacle to ethically make a government.

          This type of politics is not good for cayman.

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          • Beaumont Zodecloun says:

            Exactly right. I wish we would do away with the party system, and have two votes: One for district PM and one for Premier.

            As it is, my vote has little value, getting lost in the shuffle of horsetrading that results in a *cough* government.

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        • Anonymous says:

          Wayne has the patience of job. His three amigos deserve a time out.

      • Anonymous says:

        Yes he is

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      • Anonymous says:

        Need to discover the Puppet Master(s).

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    • Anonymous says:

      Here is a quote from a Developer.

      “It was fine the way it was where various departments could comment on applications,” he said. “In my experience as a developer, DOE and other departments usually make sensible comments and planning certainly did take care in ensuring their comments and recommendations were taken into account.” Dale Crighton, quote in the Cayman Compass Sept 6, 2022.

      Guess what – NOTHING has changed.

      This is the developer of FIN in South Sound. NCC directed a refusal on that stupid pool on the ironshore. He still got it through. And this is still what he thinks. DOE makes sensible comments.

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      • Anonymous says:

        You will also note that in this particular JR the judge agreed that the CPA did not in fact take the recommendations into account, i.e., follow the law. (Yes, I know the details are more complex, but that’s what it boils down to relative to Dale’s quote.) What Dale wants to distract from is that the CPA broke the law. Do not be distracted.

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  4. Anon says:

    Why is CNS dragging Cabinet and the Minister into this matter, surely they know the CPA Board operates separately and is not dictated to by them. Rather strange, simplistic to presume government entities which are distinct, have different mandates and different points of view need to always agree. Differing views and exchange of ideas are what make societies progress.

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  5. James says:

    if this doesn’t get overturned then Mac, Jay, KB and Chris will be giving Panton the boot. it won’t sit well with their developer friends

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  6. Anonymous says:

    Both Joey and Roy voted to pass the Nat Conserv Law in 2013.

    Why are they against it now?

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    • Anonymous says:

      12:36 pm because their government also planned to revise it to make it more appropriate reasonable.

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      • Anonymous says:

        Yeah. Alden promised to ‘gut’ the NCA.

        He set up a committee. Let all the development lawyers and developers have a go at the NCC.

        Then the facts became clearer to Alden and even he had to let it go.

    • Anonymous says:

      who said they are against it?

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    • Anonymous says:

      What have they got to do with this ? They are in opposition, stop trying to distract from the PACT failures we have running Cabinet.

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    • SJames says:

      I think you mean the National Constipation Law where there is no movement.

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  7. Anonymous says:

    This is simple…just like how the government can purchase land to develop roads…three appraisals and purchase the property…tear it down and let the beach return to its former glory.

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  8. George Ebanks. says:

    So I guess more than one George Ebanks can exist in Cayman?

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  9. Anonymous says:

    Money-the ruler of Cayman

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  10. Anonymous says:

    Anyone who actually knows law can recognize that this matter involves very complex issues of administrative law and because of that it makes sense to have the appeal court hear the matter especially since the grand court put it before an acting justice.

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  11. Anonymous says:

    What exactly are the legal grounds of appeal by the CPA? What errors in law are they appealing the GC Ruling on?

    Is the appeal based on: We not happy?

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    • Anonymous says:

      Legal grounds ??? The developers who pay big money to have decisions go their way are not happy – they tell Wigman and his politician cronies and their lackeys on the CPA and the appeal is launched at the expense of the public. Those are the grounds that matter.

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    • Anonymous says:

      8:50 read the judgment and figure it out for yourself.

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  12. Anonymous says:

    Wasn’t Pairadeau a card carrying member of the PPM. I was always told that he was out there to carry on the “rubber stamping” that AL ‘T was doing for the PPM.

    It’s time now for the civil service or should I say Franz Manderson to rid us of Eric Bush. He has more government scandals now than Donald Trump. How can one man keep doing all of this crap and keep getting rewarded for it..

    Maybe it’s time for Franz to go too if he has no testicular fortitude.

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    • Anonymous says:

      11:29 agreed re Eric Bush but Ian is no yes man or rubber stamper

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      • Anonymous says:

        “Ian is no yes man or rubber stamper”.

        If that is true he will not be there for very long because history clearly shows what happens to those who disagree in Cayman.

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    • Anonymous says:

      Franz has no testicular fortitude. His support of the civil service has no limits. He is a union leader, not a statesman.

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    • Anonymous says:

      So why would PACT Put Pairadeau on the board to carry on PPM rubber stamping ? Are you saying even PACT is working for the PPM?

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    • Anonymous says:

      11:29. Exactly what did Bush do wrong? Tell the CPA that there was funding available if they intended to appeal. I think that is his job. Sorry another private sector board strikes again.

  13. Anonymous says:

    Mysteriously takes three weeks to get decision minutes out in the public but by golly these are done and dusted in two days. Can’t trust the fox guarding the hen house.

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    • Anonymous says:

      Duh….Minutes for 30-40 applications might take a little longer than one single item. Minutes for applications have to be ratified at next CPA meeting, this was not an application and had a legal limited ‘window’ for response. Surely you don’t need everything explained to you?

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    • Anonymous says:

      10:39 pm get a grip. The CPA normally meets every 2 weeks and ratifies minutes at the following meeting. This past week they needed to hold a special meeting the day before their regular meeting. How difficult is to generate a minute on a single item and then ratify the minutes the next day at the regular meeting?

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  14. Anonymous says:

    Can someone remind me what PACT stands for?

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  15. Anonymous says:

    Why doesn’t the CPA just let a developer take the NCC to court? If NCC’s are sooooooo illegal and detrimental, then one of them could spend up their money on a Judicial Review.

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  16. Anonymous says:

    Let me see if I get this right, a “poor” man is not allowed to fish or catch a lobster or conch in a marine park to feed his family. But a “rich” man can build a cabana in a marine park that would wipe out the beach which would make the water deeper and kill all coral life which is home of many sea creatures.

    Now we have government bodies against each other fighting claim of who is wrong or right for the “rich” man on tax payers account? Man this place is FD up!

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  17. N says:

    Very disappointing move by CPA to do this, though not surprised! The cabana is in the sea already and should never have gotten approval. This is just more waste of public funds!

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    • Anonymous says:

      It’s not about the cabana.

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    • Anonymous says:

      8:03 pm it’s not about the damn cabana !! It’s serious points of administrative law that Acting Justice Walters got completely wrong

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      • Anonymous says:

        An oldie but goodie.

        “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”

        ― Carl Sandburg

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      • N says:

        You’re wrong! It’s all about the cabana! Which should never have gotten approval and approval or not should never have been built there! Let the developer call for and pay the costs of the appeal. Why is the CPA and planning ministry budget leading and paying for this?

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  18. Anonymous says:

    So much for sustainable development huh? Let the mud slinging begin. PACT for the win! PPM and successive governments are also to be blamed for this foolishnesses.

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  19. Anonymous says:

    So now we need an emergency Judicial Review of what is clearly an ultra-vires decision by the CPA.

    It would be so much less expensive to just fire the entire CPA but Jay is not going to allow that – unless Mac tells him to.

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    • Anonymous says:

      Poor jaybird can’t even fly backwards. Limited mentality has caused us more harm than good. Thought by now we would’ve been able to see through that thick forest, but it’s like casting pearls to the swines.

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    • Anonymous says:

      Premier Wayne has found himself in deep hot mess with this group he aligned himself with, with the sole purpose of becoming the PREMIER. Sorry for our Beloved Isles Cayman!. You spent so much of your own money to get a bunch of dimwits who cannot find themselves out of a wet paper bag. You thought it would an easy road, now you know! As Mya Angelou said, when people show you who they are, believe them!

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    • I nah ready yet Aha says:

      The facts in this whole debacle are : the planning Authority is strictly a processing entity whose mission is to process applications for building based on a set of prescribed rules; whereas the Conserbstion Council is designed to protect and conserve elements of the environment for present and future generations, irrespective of who the developer is, knows or has in his pocket. That is the main crux that needs to be maintained in our minds. It’s not about which entity has the higher degree of power if the damn laws need strengthening to achieve the desired balance then so be it.

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    • Stay in your lane says:

      Good. DOE need to stay in their lane.

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      • Anonymous says:

        Yes Mr rich entitled developer who cares nothing about the future for the children of Cayman! We see you!

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      • Anonymous says:

        Stopping a development that would have clear negative effects on a national protected area [for nature & recreation]? That is definitely DoE’s lane. They’re responsible for the management of them.

  20. George R Ebanks says:

    @5:91pm.
    See my comments below.
    Not the George Ebanks you’re thinking about posted it.
    Most likely a ghost writer. But certainly not this George R Ebanks who lives in Newlands.
    In fact if I could, and owned a bulldozer, that eye sore and ILLEGAL structure wouldn’t be a topic of discussion right now.
    I would have done a Jim Bodden move on that water level house/wall long ago.
    I remain the REAL DEAL.
    Signed:-
    George R Ebanks.

  21. Anonymous says:

    The Development and Planning Act (2021 Revision) is here:

    https://legislation.gov.ky/cms/images/LEGISLATION/PRINCIPAL/1971/1971-0028/DevelopmentandPlanningAct_2021%20Revision.pdf

    Nowhere in that Act is authority given for the CPA to initiate, continue, appeal or otherwise get itself involved in litigation of this type. Then again, when has the law ever been relevant to the CPA?

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    • Anonymous says:

      A little knowledge is a dangerous thing…

      The NCC started this. The appeal is about law and how the powers of the entities overlap.

      If you don’t know, learn.

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      • Anonymous says:

        Isn’t determining which of the options prevails the job of the Attorney General?

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      • Anonymous says:

        Dear Clueless

        I agree that a little knowledge can be a problem as your post clearly shows. The CPA has no authority to do anything unless they are given that authority by statute – and guess what – they do not have any such authority. If you the the OP is wrong – cite the section of the D&P Act that gives the CPA authority….

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      • Anonymous says:

        It is more about power. When you put people in higher positions you expect then to be fair, conservative and just. They should acknowledge right from wrong and there should be no favoritism in the mix.
        These islands have been turned over to developers to do as they pleases; why the laws are always in their favor and not in favor of the populous?

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      • Anonymous says:

        Thank you ! People watch Suits on Netflix and suddenly think they are legal experts

      • Anonymous says:

        Sorry. That’s not my department.

    • Anonymous says:

      It doesn’t need to be written into the law, this is why we have courts and an appeal process. It’s called “rule of law”. We can’t selectively say which entities or individuals have the right of appeal that is for the courts to decide and they will determine if grounds to appeal have been established. Everyone just needs to relax and let the process take it’s natural course, ultimately we will arrive at the truth through the courts.

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    • Anonymous says:

      Another private sector board. When will we learn?

      Shut down all private sector boards and turn the work over to civil servants

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  22. Anonymous says:

    What you people continue to fail to understand is that even if the CPA refused the new sewall and cabana, the owner could still legally and without any application required, repair the existing seawall and cabana.

    How exactly would that have fixed the situation? Oh let me guess; because you all think someone citing some none existent law could order the structures to be removed right?

  23. Anonymous says:

    Is it accurate to state/imply that the Minister responsible for Planning, Chief Officer of the Ministry responsible for Planning and/or Director of Planning have any decision-making authority in relation to this appeal? The Central Planning Authority is a statutory body that may make decisions in accordance with its functions under the relevant legislation.

    I haven’t looked at the laws to see if the Minister is able to give directions, etc to the CPA. And I appreciate that the members of the CPA are appointed by and serve at the pleasure of Cabinet, meaning the Minister could bring a paper tomorrow to revoke the appointments of current members and appoint new members who would reverse this decision to appeal. But I not sure this reporting is accurate in relation to the role of the Minister, etc here.

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    • Anonymous says:

      5:19 pm you are absolutely correct.

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    • Anonymous says:

      Members do NOT get appointed to Boards unless the Minister is confident they will all vote in the manner in which they are instructed. One or two may go rogue occasionally, but never enough to change the predetermined outcome in cases important to the Minister.

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    • Anonymous says:

      Dear CNS,

      This really is not accurate reporting. The Planning Minister doesn’t make the decision to appeal. The Board has that authority. We have a legal system that allows appeals and the CPA is following it and using their rights under the law. Why sensationalize the issue by publishing opinion instead of fact ?

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      • Anonymous says:

        Precisely which section in the Development and Planning Act gives Authority to the CPA to commence litigation or launch an appeal — Hint – there is no such section.

  24. Anonymous says:

    BS! Do those who are saying “Yea!” realize that these are public bodies battling each other with OUR MONEY for a PRIVATE cause??!! Cut the shit! CPA, stop wasting our money with appeals, just to see who wags the longest stick!

    Give it up! The f****ng cabana should not have had planning permission in the first place!!

    Stop WASTING PUBLIC MONEY!! You all get paid well enough for every meeting! so now we have to pay you to have more meetings to plan your appeals??!!

    CUT THE SHIT!!

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    • Anonymous says:

      5:15 pm you’ve got some anger issues for sure but your argument is flawed. This appeal was not about the environment but how the laws themselves are administered. If something is wrong, it needs to be corrected. Hence the need for the appeal

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      • Anonymous says:

        If you aren’t angry, then you’re on the wrong side. Times have changed and your old attitudes gotta get out of here. What was wrong was the CPA’s actions, as the Judicial Review proved!

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      • anonymous says:

        Only a doofus still says Hence in 2022.
        Cut the crap and blow up the beach-eroding blockage.
        Go build another dock if you want your name on a slab of concrete.

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  25. Anonymous says:

    Stop wasting our money!

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  26. Anonymous says:

    I don’t understand why you blame politics? What if the judge erred, isn’t that the point of having an appeal court? Happens ALL the time

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  27. Anonymous says:

    This is a national embarrassment.
    Big money is at the root of all this cpa decision driven by wealthy developers that control certain politicians and chief officers who are employed to do their bidding or else.

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    • Anonymous says:

      5:00 pm No, a national embarrassment would be an elected politician beating up a woman in a bar. This is a legal matter that needs to be sorted. The CPA and/or the planning applicant have every legal right to appeal Acting Justice Walters decision. The NCC brought this on themselves as they started this mess by filing for judicial review instead of asking Cabinet to help both parties mediate a solution.

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    • Dan Aykroyd says:

      Very true…….. and quite obvious! “Follow the money” was never more fitting ! But…. “Who ya gonna call”? We don’t have any “Thief Busters” in the Cayman Islands!

    • Anonymous says:

      I thought everyone knew that. Isn’t it disgusting!

  28. WWE Friday Night Fights says:

    Minister Jay Ebanks is openly challenging the policies of the Premier. One of them has to go but who will it be?

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    • Anonymous says:

      Time to set up the sumo ring.

    • Anonymous says:

      Ask McBeater. He is still running things.

      My bet is, as is has been, a new leader by Christmas. Don’t know what Dear Wayncito will do then.

      Anyone heard of Bird Cherry Island?

  29. watcher says:

    So, our laws mean nothing. Money talks, that’s it. End of story.

    Same as it ever was. We are witnessing the destruction of our natural resources, and we, the citizens, have NO power to change things, except by referendum. So, what should our referendum be about? Should we or should we not allow graft and corruption to destroy the beauty of our natural resources? Should we even have to ask?

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    • Anonymous says:

      How does the rule of law mean nothing when it’s going to the court?

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      • Anonymous says:

        Because the civil service and politicians routinely ignore court rulings with impunity.

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        • Anonymous says:

          This isn’t about ignoring, it’s an appeal from the grand court. The grand court is subject to many appeals and a lot of them result in correction of an otherwise flawed judgement…

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          • Anonymous says:

            The issue is the questioning of the rule of law generally in Cayman. Not the simple issue of appeals. There is a perception that we do not follow court rulings with any consistency, rendering them at risk of near irrelevance, no matter what they decide. It is all extremely sad.

          • Anonymous says:

            i. Developer sponsors Mr. X during elections to ensure he gets in…

            ii. Developer builds knowing its wrong but Mr. X will push it through…

            iii. Developer plans get rejected….

            iv. Mr. X uses our money to get it sorted for Developer in court….

            v. Developer and Mr. X continue on until the next road block…..

            Cayman in a nutshell.

        • Anonymous says:

          Disgusting, isn’t it!

      • Anonymous says:

        Your question makes no sense.

  30. Anonymous says:

    CPA are reckless and the Minister of Planning and Chief Officer both are directed by big developers just like the ones before them.

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    • Anonymous says:

      100% correct! They are ALL puppets on a string controlled by deep pockets. At the end of the day when they are out of their positions and sitting happily its us (the people) and the environment that pays the price.

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  31. Anonymous says:

    I guess we got plenty public money to burn…

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  32. Anonymous says:

    Eric Bush giving the go-ahead for another big waste of public funds? No lessons learned whatsoever from the Auditor General’s report?

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    • Anonymous says:

      The Minister is responsible for policy decisions. Civil servants advise on funding.

      This is a political and private sector board matter. Sorry you can’t blame the civil service for this one.

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    • Anonymous says:

      4:29 you got “go ahead” from Eric comments. Really?

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    • Banana Republican says:

      How is Eric Bush still employed as a Chief Officer and now the Planning CO after that auditor general’s report about his role with the foreign offices scandal which highlighted significant breaches despite the excuses stated by Governor Roper and DG Manderson?

      It is important to note Mrs. Winspear, Auditor General stood by the report despite the nonsense spouted by the leaders of the civil service to cover up the breaches by their protege.

      https://caymannewsservice.com/2022/05/oag-stands-by-report-on-dubai-and-oseas-office-failings/

      Cayman has officially become a banana republic.

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      • Anonymous says:

        🎵 Banana Republic
        Septic isle
        Screaming in the Suffering sea
        It sounds like crying 🎵🎵

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      • Anonymous says:

        Eric was asked if they have the funding available to pay the legal fees… how is this his fault ? He’s doing his job

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  33. Anonymous says:

    Good for them. The coa can settle it. That’s how law works

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    • Anonymous says:

      COA can’t settle it. If it were that easy the first court decision would settle it. After the court of appeal comes the privy council. Millions of dollars in legal fees being spent on a whose schlong is biggest competition between Jay and Wayne.

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      • Anonymous says:

        The coa is usually the end of the road. The coa is made up of extremely talented and experiences judges.

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  34. Anonymous says:

    If we keep destroying our ocean and our beaches, we will have NOTHING. Why does the CPA insist on having unfettered rights to DESTROY PROTECTED AREAS. They need to answer to the public and explain themselves.

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    • Anonymous says:

      4:27 pm Obviously you didn’t read the judgment or if you did, you didn’t understand it. Even the judge said this case wasn’t about the environment but how the law is interpreted.

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      • Anonymous says:

        Oh please cut the crap. The environment and the desire of the big money developers to do anything they want, no matter how damaging to the environment and respective of the views of the people is exactly what this is about. They believe that money gives them privilege and they never want to give it up. That is why they spend so much money on certain politicians and certain civil servants!

        To top that all off they also have the nerve to demand concessions from the Government to reimburse their bribe money and add an additional layer of profit for themselves as well!

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      • Anonymous says:

        4:50, I get the feeling you are the author of a number of comments on this thread.

        What exactly are you so defensive on this issue for?

        Are you related to the owners or a member of the CPA; which one is it?

        You should probably stick to working instead of posting nonsense all day long at your job.

    • Anonymous says:

      I’m sure they would if they thought you could understand the laws.

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    • Anonymous says:

      The building on Boggy Sand Road is already in the sea and obstructs the right of citizens to walk the beach. I fail to see how any work can be carried out there without contravening the Planning Law and breaching citizen’s rights. The approval is a shocking failure to uphold the law.

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  35. George says:

    CPA, thank you for standing up for property owners rights!

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    • Anonymous says:

      Rights to do what? Destroy the environment? Come on Georgie. You can do better than this.

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      • George R Ebanks says:

        @4:33. Please see my post in this thread.
        Not the George R Ebanks of Newlands.
        But as pointed out to CNS, I trust that they did some due diligence on anyone TRYING to post something and MISLEADING the readers as to which George Ebanks it is.
        I remain as George R Ebanks.
        A FIRM SUPPORTER OF THE ENVIRONMENT and Our culture!

        CNS: Hi George, sorry for the confusion. I’m changing the name of the George Ebanks who isn’t you to “George”.

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    • Anonymous says:

      George you are clueless

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    • Anonymous says:

      It is not the property owners rights if it is in 10 feet iof the high water mark…so hush. They have to ask for a variance to the planning regulations….and obviously the original variance was a bad decision as the building is in the water.

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    • George R Ebanks says:

      @4:26pm. Whilst I know that the name George is popular, I just wish to clarify that this George R. Ebanks was not the “George Ebanks” whose post name is attached to the 4:26pm post.
      I am fully on the side of our ENVIRONMENT PROTECTION! And thus in favor of the DOE position.
      * CNS would greatly appreciate it if you could ensure NO ONE is using my name in your posting as a front!
      Thank you much.
      George R Ebanks.

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