NCC prevails in legal battle with CPA

| 01/09/2023 | 86 Comments
Cayman News Service
Cabana at Boggy Sand (photo by the DoE)

(CNS): The Cayman Islands Court of Appeal has dismissed the Central Planning Authority’s appeal challenging a direction from the National Conservation Council that it should not grant planning permission for the redevelopment of a beachfront cabana on Boggy Sand Beach. The high court confirmed on Friday that the National Conservation Act provides the NCC with the ability to direct government bodies when their actions could have an adverse effect on protected areas or species.

The court also found that the NCC has the power to delegate decisions to the director of the Department of Environment and had validly exercised that power in this case.

The court directed that the case go back to the CPA to rehear the application. This will include the directions, as originally submitted by the DoE director, to refuse this application because of the threat it poses to the marine environment, given its proximity to the sea. The ruling also confirms a long-running dispute between the two entities regarding the power the NCC has to direct the CPA via the DoE under the conservation law.

The controversial case, which pitted two government entities against each other, began when the CPA granted planning permission for the redevelopment of a seawall and a cabana in West Bay that was virtually in the sea. The DoE sought a judicial review, and the Grand Court ruled that the CPA should have followed the NCC and DoE directions. However, the CPA appealed on the ground that the directions were unlawful.

Following today’s ruling, Premier and Minister for Sustainability Wayne Panton, who steered the law through parliament (then called the Legislative Assembly) in 2013, said he hoped this latest decision would enable all parties to move forward.

“This latest ruling once again confirms the legal basis for factoring environmental concerns into decision-making processes across the Cayman Islands Government, particularly where actions may or are likely to have an adverse effect on a protected area or protected species critical habitat,” he said. “I am comfortable that the courts have settled this matter once and for all and there can be no more room for debate. Our government agencies and boards must move forward according to the law, working collaboratively to advance the country’s vision for sustainable development that balances our built and natural environment.”

The battle that played out in the courts illustrated the strains between the premier and Planning Minister Jay Ebanks, who did not prevent the CPA from challenging what has been shown by two courts to be the lawful directions of the NCC.

Panton said, “Not only have the courts spoken, but the people of the Cayman Islands are making their voices heard loud and clear. They understand the links between a healthy environment, a prosperous economy and a vibrant society and culture, and they want to see the government actively taking steps to prioritise sustainable development that benefits all people of the Cayman Islands now and in future.”

The NCC has very limited powers when it comes to directing the CPA, and the Court of Appeal ruling does not change this. As welcome as this ruling is for the NCC, it does not add any new delays or deterrents to the planning process, leaving the CPA to continue granting planning permission in the vast majority of cases, even when the environment is threatened.

DoE Director Gina Ebanks-Petrie said she hoped the latest ruling would put an end to misinformation about the role and powers of the NCC.

“From the outset, our only goal has been to clarify the law,” she said. “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, where conditions of approval are unable to mitigate those adverse effects.”

Ebanks-Petrie explained that this ruling merely clarifies that government entities that do not follow those directions are acting unlawfully. “The NCC may only direct conditions of approval or refusal in very limited circumstances — when the proposal could have a negative impact on a designated protected area or the critical habitat of a protected species,” she said. “The vast majority of planning applications do not fall into this category.”

Despite the criticisms of the law among the development community, the NCC and the technical experts at the DoE have only directed the CPA to refuse planning permission on a handful of occasions since the law was passed some ten years ago. The requirement for EIA’s has also only ever been directed for a very small number of planning applications. 

However, the DoE regularly submits detailed submissions on planning applications, offering recommendations for conditions that the CPA could apply when granting planning approval that would protect the environment and follow the government’s climate change and energy policies. 

However, the CPA rarely imposes any of the suggested conditions that relate to protecting the environment and continues to preside over applications that involve the removal of mangroves and primary habitat. 

See here for more information on what the ruling means.

See the appeal court ruling in the CNS Library.


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

Comments (86)

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  1. Anonymous says:

    If Wayne Panton steered the law through in 2013, why did he allow his cronies to have a lengthy court battle?????

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  2. Anonymous says:

    Great….Great…now we have someone to help us protect the North Sound. Please act on this stupid by-pass that these want-to-bes politicians is promising people “one more hour sleep”

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  3. Anonymous says:

    Why all the fuss?

    We are going to be destroyed by;
    Rising sea levels
    Catastrophic hurricanes
    Boiled alive

    Activists say it is too late to change now since we apparently missed the deadline

    Might as well live life to the fullest until then.

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  4. Anonymous says:

    2 quasi public bodies fighting each other wasting public money & court time

    ZZZZZZZZZZzzzzzzzzzzzzzzzzzzzzzz

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    • Anonymous says:

      12:09 pm. Let’s be clear here. It was the DOE (not the CPA) which initiated Court proceedings. What was the CPA supposed to do in that case, ignore the Court filing?

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      • Anonymous says:

        Not have broken the law in the first place?

        Just a suggestion. Considering they were found to have not followed the law; twice. The court are practically tripping over themselves pointing out how many ways the CPA was in the wrong, and it was the CPA acting unlawfully that triggered the court cases in the first place.

        So, what could the CPA do? Don’t break the law. Easy.

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        • Anonymous says:

          2:24 the only comment that is worthy of dignifying your comment with a reply is “read the Court of Appeal decision”

        • Anonymous says:

          First of all ‘pointing out how many ways the CPA was in the wrong’ XXX

          CNS: I was about to post your comment until I got to the last paragraph. And then it went in the bin. Feel free to post the rest of it again without being an arsehole.

  5. Anonymous says:

    So the CPA issued its own Press Release, but the NCC couldn’t? They had to continue to rely on Gina and the Premier to be their mouthpiece?

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  6. Anonymous says:

    It is important to note that it was the NCC (not the CPA) that originally took this matter to court. Instead of consulting with the CPA before doing so, the DOE Director instructed counsel to file for Judicial Review. The CPA had no choice but to defend itself, in those circumstances. What do people think the CPA should have done? Lie down and NOT reply to the court notice? Also note that the CPA’s decision on the cabana and seawall application stated that the CPA felt the DOE Director’s “directtive” to refuse the application was unlawful. Note that the Court of Appeal agreed with the CPA on this point, namely that the DOE Director erred in law by pre-emptively issuing that directive. So the CPA was correct ! Finally, despite what the Premier and DOE Director of said in response to the Courts decision, the CPA did not contest the DOE’s ability to direct…they simply said this particular directive was unlawful and it was, according to the Court of Appeal.

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    • Anonymous says:

      I missed the part in the article where the Court of Appeal agreed that the directive was unlawful.
      Can you please point this out to me? If they agreed, then how is it that they directed the CPA to rehear the application?

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      • Anonymous says:

        2:57 am Refer the Court of Appeal Judgement section entitled “The Judge’s Reasons and the NCC’s error under section 41(5)”. In particular,ref paragraph 50 where the Court of Appeal rule that the Grand Court Judge “fell into error. The question whether the planning permission created the risk of harm
        to the environment or to a protected area was for the decision of the CPA. Then read on and note paragraphs 52 and 53 which state “the other point which can now more fully be explained relates to the NCC’s direction under section 41(5) to the CPA both on the first planning application, when the CPA ignored it, and on
        the second, when it took the view that the direction was unlawful. It was unlawful, because under the statutory scheme it was not open to the NCC to give that direction prior to the CPA seeking approval under section 41(4).”

        So the Court of Appeal agreed that the DOE/NCC directive was unlawful but the reason the Appeal Court directed the CPA to rehear the application was for a different reason – the Court said that the CPA needed to give more detailed reasons for its decision.

        I hope this helps.

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        • Anonymous says:

          The onus has always been on CPA to consult the NCC on ANY application that has the potential to have an adverse effect on the environment. And the ruling scolds CPA for trying to argue they didn’t need to consult the NCC because they had included conditions of approval which THEY decided would mitigate any adverse effect. In paragraph 36 the Judge states:

          “If the CPA were correct, then the
          CPA can side-step the duty to consult and the power of the NCC to reach a final decision as to the
          efficacy of conditions. By reaching its own, final, decision as to whether or not conditions will
          satisfactorily reduce or eliminate the risk of harm, the CPA subverts the plain intention of
          sections 41(4) and (5) which require the approval of the NCC and, in a case where conditions are
          proposed, require the NCC to make the final decision. On the CPA’s construction, it could grant
          permission without informing the NCC of its proposed conditions or affording the NCC any
          opportunity whatever for consideration whether the conditions proposed would be effective or
          not. So, to construe section 41(4) in the way proposed by CPA diminishes the functions of the NCC and its responsibilities of protection of the environment. It is inconsistent with the
          overriding duty within section 41(1).”

          While it was confirmed the NCC can only issue directives when they have been consulted, the directive to refuse was issued because it was unlawful for them to NOT be consulted in the first place. And that was clearly outlined by the judge. Clinging to some idea that this judgement is anything but the CPA being put in their place is grasping at straws.

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          • Anonymous says:

            10:05 am. Only part of what you say is correct. To be clear, the CPA DID consult with the DOE on this matter, as it has done for decades (yes, even before the NCA prescribed it). However, when the DOE (on behalf of the NCC) replied, it jumped the gun and immediately went to the s. 41(5) directive which was unlawful. The CPA pointed this out in its decision and the Court of Appeal agreed with the CPA.

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            • Anonymous says:

              Wow you’re really slicing rice here. When the CPA consults the NCC, the NCC responds under their law. Since it was within a marine protected area, they responded to advise there were no possible mitigating conditions and directed refusal. While this is terribly hurtful to the big CPA ego, the truth of the matter is, the Judge explains in 1000 ways how the CPA erred in not accepting the direction.

              You can continue to slice all the rice you want to make it feel better for you, but 2 Judges said the CPA were wrong to not just accept the direction because it would have come anyway, regardless of what order it was received.

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              • Anonymous says:

                2:19 here’s the point (again) the NCC did not follow its own law. It jumped the gun by issuing the order BEFORE the CPA had a chance to consult them. And again, the CPA’s original decision said the directive was unlawful. And the Court of Appeal agreed with the CPA on that point.

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    • Anonymous says:

      Me thinks you are trying to grasp water, somewhat like the gazebo structure teetering on the edge. Just let it go.

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    • Anonymous says:

      Who’s on first?, what’s on second..

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    • Anonymous says:

      Your legal analysis is so insightful. So how come the CPA lost? I am lost at the bridge between your argument that the CPA was correct and the judgment – explain to us people of lesser brain.

      • Anonymous says:

        11:33 am Perhaps CNS could publish the entirety of the CPA’s Press Release which was issued midday Friday. It’s a very good explanation of the several outcomes of the judgment, some of which favour the DOE and some which favour the CPA.

        CNS: We will link the full press release when we publish our article.

        • Anonymous says:

          CNS – what article? Isn’t this it?

          CNS: No. We’ll be posting a follow-up article later on today.

          • Anonymous says:

            Good job Gina. It is sad that thes CPA boards over the years does not support the preservation of the Cayman Islands and its people. Makes one wonder what is more important to them.? What benefit do they derive by agreeing to mess up everything all the time.

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  7. Anonymous says:

    So the CPA did NOT appeal the NCC decision. The CPA appealed the Grand Court’s decision and on that point, the CPA “won” because the Court of Appeal threw that Grand Court decision out.

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    • Anonymous says:

      Yes. The CPA won. The court told them they had broken the law and to stop doing that. The CPA are true masters of the double-speak it would seem.

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  8. Anonymous says:

    Who is going to explain this to Jay?

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    • Anonymous says:

      Min. Jay is smart enough not to care about this. Its no skin off his back and doesn’t change the status quo.

      The CPA wasn’t following the environment law. Everyone knew this. They’ve been called out on it, and lost in court. (Twice) As everyone expected but they had been too self-absorbed to consider. Also, as everyone knew, the outcome of them losing the JR is just that the planning application goes back to them and they have to do it over. No big deal. Except to their wounded pride.

      So Jay isn’t going to waste his time worrying about this. Its not like its going to stop anything important. What he should be worried about is if they ask to appeal their loss again, because his Government is the one saying they have to cut budgets. So where’s that money going to come from? Certainly not the people pushing for the case to be fought to the bitter end.

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  9. well done and my tks to the Cayman courts system.This is wonderful news as finally stupidity can be overuled.When will.people(developers)understand that our environmental issues are such an important part of proper development.
    Keep up the good work D.O.E and The N.C.C. As people need to realise that proper planning is vital to ALL Caymanians.

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  10. Anonymous says:

    Does this mean that the structure will be torn down? What will be put in its place?

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    • Anonymous says:

      To 03/09/2023 9:38 am

      The beach!!

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    • Anonymous says:

      Perhaps a late October storm passing to the west could solve the issue for everyone.

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    • Anonymous says:

      Good job Gina. It is sad that these CPA boards over the years does not support the preservation of the Cayman Islands and its people. Makes one wonder what is more important to them.? What benefit do they derive by agreeing to mess up everything all the time. The DOE has the expertise in knowing whether these projects are good for the environment or not. In most instances the regular Joe can figure it out. Before they grant a permit they should have to run it by the DOE. These two bodies should be working together instead of working against each other. The members of both boards should realise that they should be negotiating for “all the people” both groups are being paid by the Government on behalf of “we the people” why screw it up just to have your way? As stated previously, you will still get your monthly salary. Please endeavor to make Cayman better not worse.

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    • Anonymous says:

      A monument to the CPA

  11. Anonymous says:

    Any reasonable person who has walked the beach at this location has to see that this “cabana” should never have been allowed and should be removed.

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  12. Anonymous says:

    Royal Palms redevelopment, Dart’s cabana and sea wall, coral beach sea wall, etc should all be Sidney to the same scrutiny.

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  13. Anonymous says:

    The developers sitting on the shoulders of the CPA will not be happy.

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  14. Anonymous says:

    Between greedy developers’ influence and moron public officials watch this be taken to the Privy Council at PUBLIC expense!!

    Sad!

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  15. Anonymous says:

    It is very simple. Stop placing structures so close to the shoreline that they interfere with sand movement and retention.

    You might not be able to fix stupid. But you can surely fix their stupid walls and other built impediments. With a bulldozer.

    Is Cayman really going to allow the destruction of its primary tourist attraction for the sake of a handful of structures? That is the very definition of insanity.

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  16. Anonymous says:

    Wayne and Gina worked together to get this law passed during his first term when he was Minister for the Environment.

    During the 2017 to 2021 Term, Instead of make amendments to the Law, the Government simply bullied its way into over develoipment.

    Now that Wayne is Premier, the CPA recognised the need to seek clarification because they thought it was weaken Waynes environmental agenda, but they are not legal experts and didn’t anticipate this result. Classic case of careful what you wish for.

    Now the Government and umm the Goovernment or should I say Wayne and Jay, will have to either agree to leave it as it is, or change the law……

    Wayne seems to have declared victory by soeaking on the court judgement, I wait to hear form Jay, or has Wayne spoken for both?

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  17. Anonymous says:

    Not to worry, I am sure the CPA will spend another small fortune of taxpayer money to take this to Privy Council.

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    • Anonymous says:

      It is time for the CPA chairman and his associated to be sacked for wasting our tax dollars on this judicial review. Make the members reimburse the government.

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    • Anonymous says:

      Stop wasting government funds, it just leaves less for your pension.

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  18. Lomart says:

    I am so pleased with this ruling. Anyone can clearly see that this building has already caused a lot of damage and should never have been approved in the first place!! What part of N-O doesn’t the CPA understand?? A great win for Gina and the DOE. It’s about time!! The CPA XXXX. Prepared to make absolute fools of themselves rather than do the right thing!

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  19. Anonymous says:

    Take it all the way to the Privy Council CPA, who cares because it will be paid for by us dumb tax payers anyway. How can anyone dare challenge the wise decisions of the almighty CPA!

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  20. Anonymous says:

    Can we please get this same kind of protection for… human beings… in Cayman?

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  21. Anonymous says:

    lots of things to be looked at in north side now. let’s see what actually happens

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  22. Guided BY The Light says:

    This is not an unalloyed win for NCC or its delegated enforcer Madam Director- the decision clearly makes her ‘directives’ when made in response to a CPA call for comment prior to CPA decision to grant or otherwise, illegal and now constrains NCC directives to be given only once the CPA has determined the likelihood of an adverse effect at the time of granting consent and at time only, referring it to NCC for ‘guidance’. In other words, Madam Director cannot direct CPA to refuse a grant, but can only impose mitigatory conditions of their own onto the underlying CPA planning consent grant…

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    • Duppy says:

      #KNOCKITDOWN

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    • Anonymous says:

      GBTL You clearly don’t understand this case at all. The ruling CONFIRMS the NCC has the authority to issue directives in cases where an adverse effect to a protected area or designated critical habitat cannot be mitigated. That’s the way it’s always been since the NCL came into effect. It’s just so rarely used, people don’t understand it. But this is absolutely a win for the NCC. 2 judges have confirmed the authority of the NCC over the CPA in the very specific circumstance outlined above.

      The CPA trying to twist this into a win for them is laughable. The onus has always been on CPA to consult the NCC on ANY application that has the potential to have an adverse effect on the environment. The ruling scolds CPA for trying to argue they didn’t need to consult the NCC when of course they did. So while the law says the NCC can only issue directives when they have been consulted, the directive was issued because it was unlawful for them NOT to be consulted!

      Also, this whole “Madame Director” business is getting old. Gina Ebanks-Petrie is the Director of the DoE. The NCC delegates to her in exactly the same way other authorities – including the CPA – delegate certain functions to the supporting government body. I am always amazed how much people like to call her name, but no one ever mentions Haroon Pandouhie and his culpability in all this. Why is he not blamed for the malfunctions of the CPA the way Gina is blamed for everything NCC?

      The NCC deserve this WIN to confirm the miniscule amount of authority they rightfully tried to exercise for this planning application. It’s unfortunate they don’t have more power to direct in all circumstances. Maybe we’d have a country left if they did.

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      • Anonymous says:

        9:52 am. Get a grip man! The CPA wasn’t given a chance to consult because Gina pre-emptively issued the directive, which was unlawful. And you are wrong….2 judges did NOT confirm this. Our Grand Court judge tried to but the Court of Appeal overturned his ruling and clearly stated Gina over-stepped by issuing the directive.

        As for the differences in the relationships between Heads of Departments and their statutory authorities, the CPA meets at least every 2 weeks and has regular and frequent in-person interactions with the Planning Department….unlike the NCC which barely meets and lets Gina do everything for them. Take for instance the fact that the NCC did NOT even meet to decide whether or not to file for judicial review. Gina did that all on her own (and against legal advice to the contrary). On the other hand, every decision by the CPA in this matter was the CPA’s, NOT the Director’s.

        CNS: Stop with the “Madame Director”. It’s misogynistic and petty. I’ve changed it in this comment but in future I will just delete the comment.

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  23. Anonymous says:

    Great result! It’s about time that we stop paying lipservice to conservation!

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  24. Anonymous says:

    This is the most positive news to come out of our court system in a while!

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  25. Anonymous says:

    ….easy for a Government appointed body to appeal when WE the Cayman residents and tax payers and oh yea, the proceeds of the international financial services industry, are the ones to foot the bills…..

    Typical of vested interests in the “glob” – its not their ca$h that they are wasting on stupidity, it is ours – the tax payers.

    This right decision was obvious from day 1 – but brute force and ignorance thought they could go against the greater good and prevail and do so with tax payer’s money – not theirs.

    As usual – no consequences for wastage/inefficiency/stupidity/obstinance.

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  26. J says:

    Great news! The building concerned here is literally on the seashore. The CPA has gotten away with doing whatever they want for much too long!

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  27. Anonymous says:

    bye bye government surplus, doe will just continue to block anything and everything

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  28. Anonymous says:

    A rare win for Mother Nature.

    MORE PLEASE

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  29. Anonymous says:

    Wow, that’s a huge win for DOE.

    I’m sure they are going to quickly find that the construction of the new highway to Frank Sound “could have a negative impact on a designated protected area or the critical habitat of a protected species.”

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    • Anonymous says:

      I think you’ll find that the positive impact on the bank balances of certain members of PPM that own land through which the road is planned will ensure there are no environmental or conservation concerns …

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    • Anonymous says:

      DOE didn’t win anything. Still as irrelevant as ever.

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  30. Anonymous says:

    Then the law must be changed.

    That much authority can never be placed in the hands of one individual.

    Over to you Jay.

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    • Anonymous says:

      Unless its Jay’s hands? Into whose hands you’ve just put the power to override the power.

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    • AnonymousToo says:

      Please read again sir, it states that its only a handful of times that the DOE has directed a refusal. To me, this means that they are reasonable

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    • Anonymous says:

      Did you mean to say one person should not be able to interfere with corruption?

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    • Anonymous says:

      But it’s fine for the CPA 🙈

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    • Anonymous says:

      Today I learned people think the NCC is one individual

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    • Anonymous says:

      Despite the thumbs down 1.58….I Totally agree with you.
      People like the NCC who produce nothing but hot air and opinions, should not have so much power.

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      • Anonymous says:

        Fret not, for I do not fear the thumbs.

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      • Anonymous says:

        What power 5:07?? 99.9% of the time they are only able to make recommendations – ones which are then often ignored by the CPA. The NCC have hardly any power. They’ve only directed refusal like 3 times in 10 years after reviewing 1000’s of applications.

        If scientists making recommendations on how to protect the environment is “hot air” to you then we’ll see how you feel when storms and sea rise and erosion strip your home away because you were too full of yourself to listen.

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    • Anonymouse says:

      @ 01/09/2023 at 1:58 pm Friends with the developer much? Your bias is showing.

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    • Anonymous says:

      FYI – its not 1 individual. DOE Director is passing on the directions from the National Conservation Council. You can volunteer to be on this Council.

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    • Anonymous says:

      This is a happy clappy moment for the tree huggers, while they sock it to the rich foreigners……..until one day their own house application is blocked by the NCC , because there’s a pregnant frog on their property.
      Then we’Il have the outraged “I’m a generational Caymanian, my father gave me this land for my children yada yada …” scenario.
      Be careful what you wish for Cayman.

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