Controversial cabana torn down after court decision

| 04/09/2023 | 37 Comments
Cabana being dismantled on Friday

(CNS): The cabana on Boggy Sand Beach, which is behind the long-running courtroom battle between the National Conservation Council and the Central Planning Authority, was taken down this weekend. Following Friday’s decision by the Cayman Islands Court of Appeal, when the CPA’s appeal against a judicial review was dismissed, workmen began dismantling the failing structure. Although it sits in a marine park, planning permission was not required for the work.

Stakeholders in the development sector and some sections of government had hoped that this appeal would support and clarify the position taken by the CPA that the Department of Environment, acting on behalf of the NCC, does not have the legal power under the National Conservation Act to direct its decisions. However, a statement from the board in the wake of the ruling implied that the members still believe they cannot be directed by the DoE.

The CPA still claims that the directive issued by the DoE director to the CPA in this case was unlawful and that “it is for the CPA to determine for itself whether an adverse effect is likely before it refers the matter to the NCC”.

The appeal court has sent the application back to the CPA for reconsideration, and the board said it would “endeavour to provide more detailed reasons for its decision regarding its consideration of section 41 of the NCA“, as it still believes this is the only reason why the appeal failed.

This means that the two government entities remain in disagreement over the wider application of the National Conservation Act. Given the CPA’s position that the NCA does not give the DoE director the “statutory remit to unlawfully interfere with or usurp the functions of the CPA”, the board might still grant planning approval for a new cabana to be rebuilt on the site as the sea wall remains in situ, potentially breaching the law once again.

The appeal court ruling, written by Sir Alan Moses, states: “The moral of this appeal is that the CPA must follow the route prescribed by section 41(3) and the guidance issued by the NCC.”

He explained that the board must consider whether any permission it proposes to grant would or was likely to have an adverse effect and set out its reasons for its answer to that question.

“If it considers that harm can be reduced or eliminated by conditions, it may propose them to the NCC and argue for its conclusion, recognising that the final decision as the efficacy of such conditions is for the NCC,” the ruling states. “If it considers that, given adequate conditions, the benefits of the development will outweigh the harm, then, again it can and should argue the case with NCC.”

In its statement, the CPA pointed the finger at the DoE for seeking a judicial review instead of asking Cabinet to resolve the issue. It also accused the DoE and the NCC of not being interested in discussing alternative ways of resolving grievances, claiming it had to defend itself against the judicial review.

However, the DoE was successful in the JR and it was the CPA that chose to appeal the “flawed decision of the Grand Court”. In the wake of the ruling against it, the CPA has said it reserves its right to appeal the CICA judgment to the Privy Council but that it “will carefully consider the CICA’s guidance and, going forward… will seek to improve its decision making and recording process accordingly”.

The CPA said it understands that the judgment of the Court of Appeal confirmed that the communication and consultative processes between the CPA and the NCC needed to be improved so that it is more cooperative. However, the CPA still contends that the DoE’s directive was unlawful and that it is the CPA, not the DoE, who must decide whether it is obliged to refer any application to the NCC, even though the board has no technical expertise in environmental matters.

In its statement, the CPA hoped that better cooperation between the two entities could “foster a working relationship that better reflects the open and transparent process required by the NCA” and that it looked forward to working with the NCC to settle and streamline the consultation and review process moving forward. However, given the CPA’s interpretation of both the law and the appeal court decision, it seems that the two parties remain a long way from agreement.

The CPA also made a swipe at the political arm of government, particularly Premier Wayne Panton, who is responsible for the National Conservation Council in his role as minister for sustainability. Panton was also the author of the National Conservation Act and leads the PACT Government, which was formed on a policy platform of sustainable development.

The CPA called on Cabinet to “assist in settling any issues between the CPA and NCC, in order to avoid further unnecessary litigation between the two public authorities and/or affected interested parties”.

See the CPA’s full statement in the CNS Library.

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

Comments (37)

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  1. Janie boo says:

    I hope the losers had to pay for the demolition

  2. Anonymous says:

    Now can we also have the man made cove removed from in front of the old Treasure Island so the sand will come back on the southern part of 7MIle Beach?

  3. Anonymous says:

    Father of Wildfires Victim Sues Maui County, State of Hawaii Over ‘Negligence’..

    What does it have to do with Cayman? Everything. In The Cayman Islands Negligence is the way of life.

  4. Anonymous says:

    Does this mean the advertised cabana will not be constructed there? CIREBA lists a “secluded oceanfront gazebo with rooftop patio, built-in BBQ and kitchen, yoga area, bathroom and shower, paddle board storage, and private dedicated beach access with a gate and steps going to the beach for owners use only.”

    • Anonymous says:

      It just means that they have to reapply; and try to find some way to build it with less environmental impact. If they can and still think it worth the cost. Otherwise (or even anyway) they may have to update their marketing a bit.

  5. Anonymous says:

    Don’t worry, looks like Cayman developers have moved on to China now.

  6. Anonymous says:

    Will the foundation also be removed? That is actually the problem. Jutting out into the sea and interfering with sand movement and retention.

    Every sea wall and foundation built down to the waters edge needs to be removed. Especially those from West Indian Club to the old and decrepit former Treasure Island hotel. The beach cannot continue to be held hostage by a handful of reckless property owners. No matter who they are or how rich they are.

    Cayman needs to do a better job protecting its main tourist attraction. That beach is basically all we’ve got and it has been abused for too long.

  7. Anonymous says:

    It’s not a Dart job site! They look very safe to me.

  8. Anonymous says:

    Anyone giving odds on the CPA making the same decision again AFTER first deciding that NCC input is not necessary?

    • Anonymous says:

      Within the scope of the existing laws which they are bound to adhere to, they have to.

    • Anonymous says:

      My understanding even as explained by Gina is that the NCC can only FORCE cpa when there is a specific endangered animal or habitat under threat. My understanding is that is limited to turtles, blue iguanas, and maybe one or two birds (I can’t remember exactly).

      So, I believe if those animals are threatened specifically they are not able to direct CPA, only to advise. That’s how it was explained to me by DOE/Gina. Hence CPA will make the same decision unless I’m missing something.

      • Anonymous says:

        The Environmental Management Unit at the DoE is comprised of environmental scientists who provide assessments of planning applications which have the potential to adversely effect the environment. The CPA have a checklist of triggers which would indicate if an application needs to be sent to NCC/DoE for review. The assessments provided are not binding unless the proposed application affects a designated protected area and/or designated critical habitat AND where the adverse effects cannot be mitigated. This is extremely rare. 99% of the time they may only provide recommendations.

        In this case, however, because the proposed seawall is within the marine park (designated protected area) and the method proposed to tear down the old wall and build a new one was determined to have unavoidable damage to the marine park, the NCC directed the CPA to refuse the application. The CPA don’t like being told what to do so they decided to refuse the direction saying it was unlawful because the NCC technically weren’t asked to provide an assessment.

        The NCC decided to let a judge decide if the direction was or wasn’t lawful and 2 judges have confirmed the order was absolutely lawful, despite being slightly pre-emptive — because the NCC review SHOULD have been triggered and the direction to refuse would have come and been binding regardless.

        So if the CPA receives a new application which includes a new seawall, they MUST send it to NCC/DoE for review so a new assessment can be made of whether the proposed work will have an adverse effect and if that effect can or cannot be mitigated. If it is determined it cannot be mitigated, then the NCC will direct refusal and that direction will be binding.

        If the new application does not include work that will affect the marine park, then an assessment won’t be triggered and the NCC may or may not make recommendations which are not binding.

        If the exact same application is resubmitted without any changes, they still need to send it to NCC/DoE but they will likely receive the same direction to refuse.

        What they all need to do is just work together to rebuild or the seawall safely or remove it altogether.

        • Anonymous says:

          11:52 am Your analysis is almost correct, but flawed in the following respects:

          You said, “2 judges have confirmed the order was absolutely lawful”. That is incorrect. Only the Grand Court judge said is was lawful. The Appeals Court overturned the Grand Court Judge’s decision and said Gina’s directive was unlawful.

          You also referred to a possible “new application”. Well a new application is not required. The Appeals Court directed that the CPA “rehear” the same application, which is exactly that – a simple rehearing of the same application that it saw previously and providing more detailed reasons for whatever decision the CPA comes to at the rehearing.

          Therefore your final scenario is also incorrect – where you say “if the exact same application is resubmitted without any changes”. No application is required for the CPA to rehear the matter, not to reconsider it. There’s a difference in law….look it up.

          But you are absolutely correct on your final point – that they all need to work together. That’s what Gina should have tried before she decided to file the court motion.

          • Anonymous says:

            There will be a new application since they’ve torn down the cabana.

            The appeal court said that the Grand judge came to the conclusion for the wrong reasons but that doesn’t mean a grand court judge didn’t still agree after considering the case.

            I don’t know why you’re not just accepting the truth of the matter:

            FACT: Both a Grand Court Judge and Appeals court considered the matter and concluded the CPA erred.

            FACT – The CPA are required to consult with the NCC on applications which have the potential to have an adverse effect on the environment.

            FACT – The CPA must consider whether an application has the potential to adversely effect the environment BEFORE any mitigating factors are considered.

            FACT – THE NCC alone is the authority on IF there are factors which can mitigate adverse effects and if so, what those mitigating factors may be. CPA is free to make suggestions but the NCC has the final say.

            FACT – The NCC have the power to direct refusal where mitigations cannot be made (regardless of the CPA’s opinion) when the adverse effect is to a Protected Area or designated Critical Habitat.

            Get over yourself.

      • Anonymous says:

        It’s a turtle beach.

        • Anonymous says:

          It is not a turtle nesting beach. There’s barely any beach by the cabana. The jurisdiction of the DoE in this case is based on it being within the Marine Protected Area. The interim species conservation plan for turtles does not factor into this case.

  9. Anonymous says:

    cant we see that the sand is begging to flow

  10. Anonymous says:

    Good result. Now let’s start jailing developers and contractors that violate our building laws.

  11. Anonymous says:

    How about CIG’s boards and departments working together for the national and public good. The CPA members seem to believe they are appointed only to serve the interests of developers.

  12. Richard Wadd says:

    FINALLY, a Win for the environment! Now let’s work to do the same at the other end of SMB.

  13. Anonymous says:

    WORC should go and see if all these workers are legally allowed to be working on this site. They do not appear to have on safety tie offs.

  14. Anonymous says:

    This bunch at CPA need to all be fired as they seem to think they are the almighty and run the show. If the Premier has any balls he will can the whole bunch including the chairman. These are our tax dollars these clowns are throwing around like it is nothing.

  15. Anonymous says:

    Praise Buddha

  16. J says:

    I’m happy with the decision of the Appeals Court. The CPA has run roughshod with questionable approvals for much too long, at the expense of the environment. Great job NCC and DOE!

  17. Anonymous says:

    Now head for the beach destructor by Darts (the West Indian Club) so the sand can come back naturally

    • Anonymous says:

      Which would make absolutely no difference, unless of course you also removed every other wall south to Pageant Beach as well, including the groyne at TI, the. Head north to Marnie’s house and do the same.

      Why don’t you draw up the proposal and send it through to Mr. Environment himself to take forward to his cabinet?

  18. Nelson says:

    Ha! Ha!

  19. Anonymous says:

    cabana taken down – no problems
    CPA Intransigence – Disgusting

  20. Anonymous says:

    Wall still there though, don’t it?


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