Ruling hasn’t changed developer-tipped scale

| 06/09/2022 | 33 Comments
Cayman News Service
The FIN development project (file photo)

(CNS): The court ruling in the judicial review of the dispute between the National Conservation Council and the Central Planning Authority has not altered the balance between development and conservation in favour of the environment. Despite inaccurate claims being made by some developers, the judgment has only confirmed the NCC’s existing powers to make orders in very limited and specific circumstances, which to date have been used in less than one-quarter of one per cent of planning applications.

“Since the National Conservation Act was passed unanimously by Parliament in 2013, the NCC has always been able to direct government entities to refuse a proposal that could have a negative impact on a designated protected area or the critical habitat of a protected species,” NCC Chairman McFarlane Conolly told CNS. “What the ruling has clarified is that government entities, including the Central Planning Authority, that choose not to follow those directions are acting unlawfully.”

Although many conservationists in the Cayman Islands have significant concerns that the current laws still tip the scales well and truly in favour of development, the court decision has fuelled a surge of misinformation on social media suggesting development is now somehow under threat.

Eden Hurlston, a local environmental activist and a member of Amplify Cayman, said that over-development and culturally and ecologically irresponsible planning and design had not been stopped by the conservation law and this latest ruling has not changed anything.

“Development is, and always has been, tipped heavily in favour of developers,” he told CNS. “Even with the conservation act, there is no way to stop the bulldozers tearing down the mangroves or prevent the CPA granting waivers on high water mark setbacks that lead to unsustainable projects.”

He added, “When it comes to planning applications, there really is no balance between development and conservation, even when that is what the people have said they want. As the public calls for more protection for the environment and an end to this unsustainable situation, especially to protect mangroves and beaches, the more concrete appears to be poured.”

Hurlston, like many activists, believes the conservation law doesn’t go anywhere near far enough and that we need to dramatically change our approach to development, especially given the climate emergency we now face.

“We need to stop giving concessions to luxury developers and use that money for the public good, to acquire remaining coastal land and create green jobs with beach parks, replanting native flora and stopping erosion,” Hurlston said. “We should have stiff penalties for illegally removing mangroves, silting the reef or having non-turtle-friendly lighting. In all planning and design decisions, at every turn, we want the cultural, economic and ecological needs of the people of Cayman prioritised over the profit motive of the developers, with no exceptions.”

The issue of runaway development was a central issue in the 2021 election, but so far not much has been done to stop development. Very little of it is truly sustainable and some minsters are even backing development in the Central Mangrove Wetlands. Just this week, the Ministry of Finance revealed that it had collected more than $18 million than expected in stamp duty, as the unsustainable property boom continues to fuel more development that encroaches on the dwindling natural resources.

While the government has acquired more land to formally place under official protection, reaching 11% of the three islands’ land mass this year, the reality is that more and more land in private hands that had remained undeveloped has now been sold to developers. While experts say we need to be aiming for around 30% of the land to be protected, instead, to feed the demand from overseas rich investors and guest workers seeking property to secure points to get permanent residency, more and more untouched primary habitat is under threat of being cleared.

Speaking on Radio Cayman on Friday, Premier Wayne Panton said that land which is acquired by the government and placed under formal protection by Cabinet cannot be developed. But the NCC has no power outside of protected areas, and even in protected areas their powers to curtail development are restricted within the boundaries of the planning law.

The NCC can only direct planning or other relevant agencies when a Cabinet approved designated protected area or the critical habitat of a protected species is under threat from a planning application that does not comply with the regulations. So where a prospective project is planned on the oceanfront, even in a marine park, unless the developer proposes to breach the high water mark setback or remove ironshore, the NCC cannot order the CPA to refuse planning permission.

The NCC’s power is restricted to direct threats to protected habitat or species that cannot be mitigated, as was the case in the Boggy Sand planning application that was at the heart of the court case. The direction by the NCC that the CPA should decline planning permission was made because the project proposed tearing down an already failing structure, which is now in the sea, in a marine park and building an even bigger one.

The plans provided no high water mark setback at all and no way to rebuild safely or without directly risking the marine habitat on the same footprint. Therefore, as there were no possible means of mitigation, the NCC made its direction.

Speaking in the Cayman Compass on Tuesday, and reflective of posts across social media and WhatsApp groups over the last few weeks, Dale Crighton, of Crighton Properties, implied that government could face litigation if the new interpretation of the law impacted land values. However, there was no new interpretation of the law.

There has been no change regarding the ability of oceanfront landowners to build luxury condos or any other project, provided they comply with the existing planning laws. No property rights or rights to develop have been tampered with, as suggested by Crighton, who has himself faced significant criticism for the FIN project in South Sound, which was built very close to the ocean and caused a number of environmental concerns during its construction.

Nevertheless, Crighton noted that the DoE makes sensible comments on applications and wanted things to stay the way they are. “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,” he said.

The DoE, on behalf of the NCC, reviews most planning applications and gives detailed science-based comments on projects, offering advice to landowners about improving their developments, making them more sustainable and helping to protect coastal properties from storms and flooding.

Conolly explained that of the 3,094 applications that have been reviewed since 2016, the NCC has directed conditions of approval for just 62 applications, representing 2% of all applications reviewed.

“The number of times that the NCC has directed refusal for a planning application is even lower: the NCC has directed refusal just seven times for five applications. This represents 0.23% — less than a quarter of 1% — of all applications reviewed. In the limited instances where the NCC directed refusal, these applications involved adverse impacts on protected areas or the critical habitat of protected species which could not be mitigated,” he said.

In most circumstances, even when pristine habitat or critically endangered species, such as banana orchids or silver thatch trees, are at risk, the NCC cannot actually stop the development.

See more about the Conservation Act, the actual powers of the NCC and the ruling in the judicial review on the NCC website.

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

Comments (33)

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  1. Mr. Meghoo, PR misses you! says:

    “to feed the demand from overseas rich investors and guest workers seeking property to secure points to get permanent residency,”

    Gov’t has fixed this by not hearing applications again. But this runs the risk of lawsuits and eventually an overseas court saying people get full status at an earlier point in time. Many countries allow full citizenship after 5 years, the vast majority within 10 or less. Cayman may end up being told the current system has to be rework on much faster terms. All because the Government has decided to put Steve McField in charge and build up a massive backlog of PR applications again.

  2. Anonymous says:

    I’d do this:

    Ocean front (anywhere ocean or lake or ‘sound’ side of the nearest road!) – back to 3 stories max. With the 50ft height or whatever it was.

    ANYWHERE else, go 50 stories if you want. There’s all your beach views back.

  3. N says:

    The current situation feels almost hopeless! Which is exactly what the developers want, as they only care about the short term financial rewards. Consider this – if a someone takes a conch from such an area (a marine park) it will result in arrest and off to jail. If a developer, and either inept, greedy, corrupt, or all of the aforementioned build a cabana on the shoreline of said marine park, resulting in said cabana ending up in the sea due to resultant erosion, there is just more and more rulings and appeals, with lawyers benefitting. It really is a sad situation – sad mostly as things could be very different if the powers really want it to be so.

  4. Anonymous says:

    Reaction not surprising here. If you can’t compete you sue.

    • Anonymous says:

      All you cry babies need to just shut the up. We desperately need development as look at all the money and jobs it brings in.You all love the freebies that government throws around but where do you think all the money comes from? Thank goodness these men know what to do and ignore all the haters. Waste our time on these stupid law suits and worrying about some silly weed trees. Get on with the developing and keep up the good work. As for you whiners, go get a lollipop and sit in your chair!

  5. Anonymous says:

    The self-righteous shall never prevail.

  6. WBW Czar. says:

    Build out, build up, build fast. Repeat.

    • Anonymous says:

      Don’t kill the goose that’s providing substantial income to the national coffers.
      Look at the cash generated from real estate and development transactions and be grateful.

  7. Cheese Face says:

    Dale wants things to stay as they are? Laws that aren’t worth the paper they are written on? I wonder why? You can’t mke this s**t up!

  8. Anonymous says:

    What ruling? The one soon to be overturned you mean?

  9. Anonymous says:

    There are so many inaccuracies in this article that I don’t even know where to start. Firstly nobody was ever proposing to tear down and build a bigger cabana or sea wall- the opposite- it was a smaller curved sea wall being built INSIDE the old sea wall which old sea wall was going to be torn down after the new one was completed- this was the proposed order of things because it would prevent any run-off into the marine park! Physics alone should explain that if it was being built INSIDE the existing sea wall the new sea wall was SMALLER, not larger! Secondly, the NCC/Gina objection was about run off into the marine park which the cpa felt would not happen because the developer had added additional preventing measure (including building inside the existing sea wall). There is far too much misinformation. All that the doe/NCC have achieved is that the current existing structure stays in place and will eventually fall into the ocean and destroy the marine park- instead of permitting a new, smaller, curved sea wall (as had been suggested to the developer by the doe previously) being built with the same sized cabana- which presumably would have helped the overall situation.

    I don’t even know where this misinformation is coming from- the facts of the development are in the cpa decision.

    CNS: See the minutes of the meeting where planning permission was granted, including the history of this site, here.

    • Anonymous says:

      The cabana has been there for over 15 years, it was previously approved, an owner should be able to fix their property just like owners fixing their boat docks in the north sound. The CNS reporting is false in the article the proposed fix to the gazebo is smaller and what the doe asked for …. a curved wall…..then they object when they get what they asked for. There is a government seawall that is over 3,000 feet long protecting the road just next to it…..but a gazebo that is 30feet wide is the reason there is beach erosion …..?? The owner tries to correct an issue at their own cost…the doe should be working with them not against. Btw the entire port is concrete shall we tear that down as well? Simple solution let the owner fix and improve something that was approved long ago.

      • Anonymous says:

        Agreed. The reporting is way off and confusingly so. This is not as black and white as these articles make it seem. The developer tried to work with the doe only to be hit for left field after following their suggestions with them objecting to it at the last moment. Very odd stuff

      • Anonymous says:

        It is true that the government wall has caused significant beach erosion. A blind man can see that.

  10. Anonymous says:

    Why then doesn’t the Premier implement proper protection instead of bargaining with nitwits like his Planning Minister ?

  11. Anonymous says:

    The CPA should find some time to go through the districts and see first hand the illegal works being carried out. Complaints to the Planning department about illegal structures are never dealt with. The excuse being their isn’t enough staff .

    • Anonymous says:

      Yep, 8:11. Next door to me. Wooden building for $600 a month tenants. Jam packed with them. Went up almost overnight.

    • Anonymous says:

      The massive complex across from kirks supermarket is built on the iron shore all the way up the water with fences, can’t walk on the shore around it.
      The planning department didn’t do anything and told me to screw off.

    • Anonymous says:


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