CPA decision ‘perfectly proper’, argues lawyer

| 18/05/2023 | 30 Comments
Cayman News Service
Cabana at Boggy Sand (photo by the DoE)

(CNS): Sir Jeffrey Jowell KC told the Cayman Islands Court of Appeal Wednesday that a Central Planning Authority decision to grant planning permission for the redevelopment of a wall and a cabana on Boggy Sand Beach was “perfectly proper”. As Jowel opened the CPA’s appeal against a judicial review finding, he argued that the experts on the board were entitled to find that the developer had offered sufficient mitigation against the environmental risks.

The current failing structure, built in a marine protected area, is effectively in the sea for a significant part of the year. The wall and small cabana were built far too close to the sea, creating conditions for them to fail and causing erosion to what was once a turtle nesting site.

The first application to rebuild was turned down by the CPA in April 2021. However, in September 2021, in direct opposition to a National Conservation Council directive, the new board granted planning permission for a revised application, even though the same problems existed. The NCC successfully challenged that decision in the courts.

The arguments before the court in the CPA’s appeal of that judicial review decision focused largely on the technical aspects of the National Conservation Law, including the interpretation of it regarding when the director of the Department of Environment can and cannot direct the planning board.

Arguing on behalf of the CPA, Jowell said the board had been entitled to approve the application and contended that the experience of its members enabled them to make a decision. The CPA had claimed that the legal requirement to consult and take direction from the NCC did not apply in this case. Jowel said the board had put conditions in place that would reduce the environmental dangers.

As he outlined his arguments, which lasted almost a whole day, Jowell did not elaborate on the expertise of the board members with regard to the environment but implied they were planning and construction professionals who were in a position to make a judgement about building.

However, there are no environmental or marine scientists sitting on the CPA and neither the NCC nor the DoE has a seat on the board, while the Department of Planning has a constitutionally mandated seat on the NCC.

Jowell argued that in this case, the NCC did not have the power to direct the CPA, and that the NCC and the DoE had jumped the gun on the directive not to grant planning permission.

The case continues.

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Category: development, Local News

Comments (30)

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  1. Anonymous says:

    give people the power to sue CPA board members for bad decisions an hold them accountable for their errors, as these are the experts, hey should make now errors.

  2. Anonymous says:

    The National Conservation Law delegates too much authority to the holder of one position. Those are the facts, that is the real issue.

  3. Anonymous says:

    Leading silk from London, to deal with a planning appeal. Glad the CPA are being careful with tax payers money.

  4. Anonymous says:

    Set aside the particular seawall issue because all that did was highlight the issues with the current system (both process and legislation). The CPA should be commended for taking this case forward. It’s an obvious issue of 2 sets of legislation and more than several government agencies working at cross purposes. This has continued for years unchallenged, including inaction by successive governments. Hopefully this will result in some positive movement to get the legislation updated and in-sync and giving solid direction to government departments and agencies in order to avoid such impasses. Working together for the public interest (including the environment) should be the goal.

    • Anonymous says:

      I call BS – This was purely the CPA saying ‘no one can tell us what to do’. The absolutely refuse to work together for the public interest’. Until that mindset is beaten out of them (or the CPA is replaced with people who will) this country will suffer under their maladministration. – Don’t try to paint the CPA as some sort of impartial do-gooder defenders of public order. The only thing they are trying to defend is their outdated approach of ‘we don’t have to do anything we don’t want to’. And they have long proven through repeated CPAs that what they do not want to do is anything environmentally conscious.

      • Anonymous says:

        11:48 with all due respect, the comments from 8:22 am were absolutely correct. The CPA (neither this one or previous CPAs) can be blamed for wanting to ensure they follow the correct and legal process. In case you don’t know, the CPA must also follow the Development Plan and the Development and Planning Act which, in ADDITION to environmental issues, requires them to consider and balance other considerations. If they don’t, then they are subject to appeals and potential overturns of decisions because they didn’t follow the Planning laws. I am NOT saying any of these laws are ideal, but they simply do not work well together, and this has festered over the years. And the ONLY body that can change the laws are the LEGISLATORS, not the CPA and not the DOE. In the absence of that initiative, why not take this to the courts to properly settle the matter. And this matter has way more to do with complex issues of administrative law than it does with a single seawall application.

        • Anonymous says:

          Except they also have to follow other laws, like the Conservation law, which they did not which is why they ended up in court. As said, this is the CPA saying ‘you can’t tell us what to do’. The lawyer for the people building the sea wall basically admitted they know the CPOA did not follow the law. But the CPA will not because they don’t want to. And will waste our money trying to get their way.

        • Anonymous says:

          Sounds like bull hockey to me!

  5. Anonymous says:

    Its worse than you think. Sir Jeffrey claimed CPA expertise in environmental matters lies in their powers of issuing tree preservation orders, and remediating deposits of refuse.

    Yes, the antiquated, not fit for purpose, development plan strikes again.

    • Anonymous says:

      5:17 am If you were listening to the entire submission and listening carefully, you would have noticed that the KC said that the environment was only one of several things the CPA was required to consider under its own legislation (that being the Development and Planning Act and the Development Plan). He used tree preservation orders etc as examples only. But agreed, the Development Plan does need updating so perhaps we need to lobby government about that, as they have had the draft National Planning Framework from the CPA since September 2022.

  6. Anonymous says:

    Shame on PACT…

    • Anonymous says:

      Shame on CPA! They have been gathering big bucks from most of their deals! They seem to do whatever they please and answer to no one.

  7. Cayman’s Infamous 7-Mile Sea Wall says:

    Seems you can essentially justify murder if you have the means coupled with political clout. Might as well just have done with it and build a 7-mile sheet pile sea wall. We can then change the name of the no longer 7-Mile beach so it represents what it will soon be.

  8. Anonymous says:

    The only thing of note is that the taxpayers are on the hook for all of the fees in this shemozzle.

  9. Anonymous says:

    Experts in more than construction and planning, but will leave that to one’s own judgement. Good thing our government has a huge surplus to spend on things like this. Thank you CPA

  10. Anonymous says:

    Experts, lol.

    • Anonymous says:

      Some are highly paid consultants. Is that a conflict of interest?

      • Anonymous says:

        Obvious significant conflict of interest and the ability to pass the resultant largesse up the line seems to be the principal criterion for selection to certain boards.

  11. Anonymous says:

    Important to note that it is not the bonehead property owner who applied to rebuild this doomed cabana that is propelling the knight of the realm KC legal appeal – it’s the CPA with our money. Q. So, why? A. So that the CPA can perhaps win back their final say construction approval hegemony and reopen back channel outcomes, tampering for environmental shortcutting, and National Conservation Law negation. This appeal is in effect an anti-corruption committee red flag, and it’s astounding that it is allowed to proceed in our courts, even while we struggle with FATF and OECD greylisting for political corruption and laundering.

  12. Anonymous says:

    “experts on the board”… if these experts say that it is OK to rebuild this structure effectively in the ocean and it will be OK then I would not want any of them involved in building anything for me.


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