Boggy Sands loses fight for right of way to beach
(CNS): Beach access problems for developer Morne Botes and his partners in relation to Boggy Sands Club took another turn for the worse after Chief Justice Margaret Ramsay-Hale ruled that neighbouring landowners have the right to erect a gate to stop guests staying at the resort from trespassing. The developers have faced right of way and access issues ever since the condo club was developed and promoted as having direct beach access to this stretch of Seven Mile Beach in West Bay.
At one point, Botes joined local beach activists to campaign for better public access to all beaches on Grand Cayman because his luxury development was undermined when the access point to the nearest beach was closed off. In the end, given that there was no right of way through existing private access points, Botes and his partners purchased a separate beachfront lot further north from the Boggy Sands Club site to fulfil their sales promise of beach access.
However, many of the owners of these condos are overseas residents and unaware of the beach access problems associated with the development. Most of the properties are rented out through Airbnb and other accommodation websites. Guests are also unaware of who owns what and where the rights of way are. As a result, they have been using private land to access the beach.
Boggy Sands consists of three lots, but legally only what is known as the Pool Lot has a right of way along Windsong Villas Drive. There is no right of way for either of the land lots that are home to the completed condo buildings. In effect, as the right of way applies only to the Pool Lot, the owners and guests staying at the Boggy Sands Condo don’t really have access to the beach via the Windsong driveway.
However, the resort’s neighbours at Windsong Villas, a smaller and older complex, are not pressing this issue. They just want the guests to stop crossing their private land.
In response to the Boggy Sand Club owners’ attempt to sue them for putting up the gate, the strata at the Villas said that many of the holidaymakers veer off the pool lot driveway onto their property and “make a nuisance of themselves”.
To preserve the peace, they installed the gate to indicate to the condo resort’s guests that “the property they were traversing was, in fact, private property and not a part of the condo resort”, especially due to the dramatic increase in the number of guests who had begun using the Windsong driveway since the resort was built.
According to the CJ’s judgment, before the condo club was developed, the use of the easement to access the Pool Lot was negligible. But the residents at Windsong said the trespassing holidaymakers were returning from the beach drunk, noisy and belligerent. The decision to install fence posts and a rolling gate to establish a boundary was to bring attention to the fact that Windsong was not part of the condo resort. The gate is not locked but rolls open and shut on wheels, so no one has actually been prevented from accessing the beach.
In the end, the court found that the owners of Windsong Villa were entitled to “fence their entire boundary” to prevent the continuing trespass by the guests at the condo resort. The CJ said that, as no one occupies the Pool Lot, it was “common sense” that anyone entering Windsong from that lot from the north travelled from either the West Lot or the East Lot and that their use of the Windsong driveway to get to the Boggy Sand Road was a trespass.
“The increased foot and vehicular traffic over the right of way since it has been developed has been the source of much consternation to the owners of Windsong, not least because many of the holidaymakers veer off the driveway built over the right of way and on to the owners’ private property and otherwise make a nuisance of themselves,” Ramsay-Hale wrote in her ruling as she accepted the defendants’ case and dismissed the plaintiffs’ claims and their request that the gate be removed.
“The use of the Windsong driveway to access the West and East Lots after a day at the beach was equally unlawful,” she said, indicating that the gate was justified and could remain where it was.
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Category: development, Local News
would help the general public understand the issue if the photo highlighted the access being abused, the gate and Windsong apartments.
More beach accesses will be closed in the future. It’s only a matter of time. We have stayover people who are buying condos from 18 million up to 60 million. When the elites have that kind of money its only matter of time.
18 M to 60 M… Your smokes are mighty strong. Let’s bring a little reality to your insanity. I’d speculate a decimal = 1.8M -6M; and yes at the higher end a bit higher.
It’s literally a 5 minute walk up Boggy Sands Road to free beach access for all up near Heritage Kitchen, sort your lives out clowns. Too many people, with too much money and not enough sense.
Yup, except… The parking is from outsiders! No sense to drive 50 yards. The outsiders (locals) come, park, waddle, and complain for the inconvenience of the waddle path.
Bullyboy tactics by the developer with build now argue later mentality. Little to no regard for those purchasing, those living locally or the law. Good result.
CIG continues to let this beach access and beach use issue fester by not providing a clear and easily understood legislative definition of where private land ends and public beach begins.
Leaving it up to the lawyers to argue what is meant by high water mark etc is not the answer.
We would do better with a Parliament of owls.
Public land goes up to the natural vegetation line. This is written into law.
nope.It goes to water mark. ie Storm surge mark… not high Tide!
Mean High Water mark, NOT “storm surge mark. The difference between the two can be hundreds of feet. Some shallow waterfront properties are now nearly covered by storm surge in every hurricane.
That isn’t what is happening in this case at all.
12:03 pm Too bad you didn’t read the story or the judgment. This is not the typical public right of way issue. That said, your statements generally are correct in relation to the long-standing issue of public access to and over the beach.
For the hundredth time: NOTHING TO DO WITH HIGH WATER MARK!
Money talks,
just pay the complex you wish to have rights of way thru and I’m sure they will allow it.
This is a strange ruling to me. ROW do not change based on what’s built on the parcels which have the ROW on them. So even though nobody resides on the “pool lot” that doesn’t mean that people with a legal access to the pool lot can’t use the ROW to get to the beach.
To my understanding a pedistrian ROW has no restrictions on how many people per day can use it, or what their purpose for using it are, it’s literally a right to go from one place to another along a perscribed path.
Now if tourists using that path are being a pain, that’s another issue altogether and I’m sure there are some ways to address that. But this ruling seems very very bizzarre and I don’t image it will survive an appeal.
You’ve completely misunderstood the law as regards ROW’s. Nothing strange here at all. And the Judge is a scholar on this area. No worthwhile appeal coming unless as a delay tactic
11:06 spot on !!
Tell us you have no clue about the law without telling us you have no clue about the law.
20/09/2024 @ 10:27am
That’s why Margaret is CJ and you’re not.
What 11:37 said !! 🙂
10:27 you’ve completely missed the point and got it all wrong
How is he operating the beach piece of this ‘development’ in a low density residential and frankly historic zone? Do the neighbors just tolerate this man? That beach with a bus parked on it is clearly not in keeping with the area, who enforces laws in this country?
A quick answer to your question is-NOBODY!
“Historic” must have a different meaning in this context compared to ordinary English usage.
the bus is a workaround in place of a permanent structure, which would require setbacks, rules, planning, etc. Something which this guy seems allergic to.
I want my money back.
Costs order one assumes?
I’d sue.
Well, well, well, the chickens are coming home to roost.
I really thought it strange that this developer was supporting beach access which I thought was not the norm in the Cayman Islamds and I just had a ahhhhh moment. A wolf in sheeps clothing!
7:54 exactly !!
He has “Morned” out his welcome here 🙂
Morne got it wrong from the beginning yet tried to fight a losing battle. He doesn’t like taking “no” for an answer and continues to bully people with threats of legal action. He was grasping at straws on this one from the get-go. Unfortunately he retained a completely inept lawyer who, like Morne, was out of his league here. Wingsong’s attorney could have won this battle blindfolded with one hand tied behind his back. As for the CJ, do NOT underestimate her in matters like this. She wrote a landmark decision on a property/strata matter when she was in the Turks and Caicos. She picked this one for herself for a good reason. Excellent judgment.
About time someone stood up to Morne the bully, he has total disregard for the island, local beach access or the environment. Great Job to James Kennedy who was the lawyer and fought a good fight.
Rich people problems
The CJ is correct in law. Morne will never learn.
#makewindsonggreatagain
Another nail in the coffin for prescriptive rights? Are law abiding and respectful members of the public to now be denied access as well?
Morne come like Sandra now with the third person foolishness.
The gate is not locked but rolls open and shut on wheels, so no one has actually been prevented from accessing the beach.
I’d lock it with owner access only.
It is a private right of way and thus is not open to the public.
20 years of use. It becomes public.
File if you think you have a claim. Bet you won’t
8:58 Like you know more than the CJ who’s an expert in this area? SMH
If you run the same stop sign for 20 years that doesn’t change the law.
I’ve actually done that and I might file a claim.
1:53 pm this is NOT a prescriptive rights matter.
Mr Boates is a great and fine man. This is all a witch hunt. Honorable Bush, Hew & Seymour please immediately overrule this dump decision. That foreign man & lady across the road is always starting trouble for Mr Boates.
5:10 pm You’re a troll probably hired by Morne who told you to spell his surname wrong….twice !! Also, in Cayman the correct spelling is Honourable….so you’re not from here. And most importantly elected politicians (at least in this country) CANNOT overrule a Court decision.
Can’t seem to learn either, same clowns are up by Morritts promoting beach access that they don’t have.
Buyer beware.
My boil bleeds him..
Yep, agree not too many people are going to feel sorry for him.
You have to be kidding me. Cannot we all just get along.
So many bridges burnt makes it difficult to get along with some people.
Sure, just follow the law. Or do you believe that laws should be ignored?
What laws, hell the ministers just ignore all the laws so the people may as well also. Besides this is in West Bay, home to the head of all McKeeva Bush.
🙂