NCC and CPA in court over unlawful road in blues territory

| 17/10/2024 | 83 Comments
Clearing and road construction by Bon Crepe without permission

(CNS): Questions over whether or not the Central Planning Authority legally cancelled unlawful after-the-fact planning permission granted for a road in East End that cut through critical blue iguana habitat were argued in court Wednesday. The National Conservation Council continues to battle with planning officials and the repeated failure to follow the law and consult properly with the NCC and, by extension, the Department of the Environment when development threatens protected habitat or species.

CNS reported in June that the CPA had granted Bon Crepe after-the-fact planning permission for a road cutting through pristine habitat between the Colliers and Saline reserves. This is where critically endangered blue iguanas, reared in captivity, are released as part of the decades-long, acclaimed conservation initiative to bring these endemic reptiles back from the brink of extinction.

Since then, arguments have arisen between the NCC and the CPA over the state of the planning permission.

The CPA has accepted that granting planning permission was unlawful and claimed that it modified the decision, which effectively revoked the decision to grant permission. However, the NCC is concerned that this is not the case and that, given the complex circumstances surrounding the case, the only way this planning permission can be revoked is through the courts.

Appearing in court on Wednesday, Tom Hickman KC, representing the CPA, argued that this is merely an academic exercise and that the NCC and DoE are wasting the court’s time as the planning permission no longer exists.

However, the NCC has argued that this is much more than an academic exercise and has implications for future planning applications as well as this ongoing application because the developer intends to do more at the site. Bon Crepe is still seeking planning permission to extend the road, which is now part of a temporary protected habitat, as granted by Cabinet.

Bon Crepe Ltd and its owner, James Bergstrom, are also being prosecuted for removing buttonwood mangroves at the location. The prosecution is currently stalled because of questions over whether or not planning permission exists. While all mangroves are protected species, and people can be prosecuted for removing them under the law, once planning permission is granted, they lose that protection.

The case also raises questions about the approach the Department of Planning and the CPA have taken towards development in pristine habitats, which has put critically endangered species at risk. The repeated failure to consult or to ignore advice and even orders has led to inappropriate development being allowed to continue regardless of the National Conservation Act.

Despite the court’s intervention, the CPA still does not always properly consult with the NCC or take its advice. It continues to ignore recommendations given by the scientists at the DoE on the NCC’s behalf when considering applications. In a number of cases, it has even ignored lawful directives made by the NCC under the law.

In this case, there are concerns that without a clear revocation of after-the-fact planning permission, the CPA cannot hear a new application, and no enforcement action can be taken to deal with the damage caused to the critical iguana habitat and the danger the road has posed.

Representing the NCC, Chris Buttler KC argued on Wednesday that the CPA, despite accepting that the after-the-fact planning permission was unlawful, does not want the courts to ‘quash’ the decision. This is because it intends to re-hear the application, as the ‘modification’ it made has paved the way for a new hearing.

But if that is not the case, as the NCC believes, it cannot rehear the application, but neither the necessary enforcement action required to remediate the damage nor the prosecution for breaching the NCA can take place either.

“The NCC was extremely concerned about the destruction of habitat and the threat it posed to the blue iguana,” Buttler said and explained that the DoE had asked the planning department back in 2019 to take action over the road.

Despite repeated requests, planning took no enforcement action. At first, the department said that the owner did not need planning permission to clear the road as it existed on a right of way. This was found to be wrong by the Attorney General’s Chambers, and at the end of 2019, planning accepted that opinion.

In January 2020, the DoE chased planning about the enforcement action, but nothing happened until July. At that time, planning said it had tried to investigate but couldn’t gain access to the site. In September that year, the DoE supplied drone footage to planning, but still, nothing happened. In May 2022, when DoE discovered that more work was underway at the site, planning still did nothing.

Buttler told the court that Planning Director Haroon Pandohie, in correspondence with DoE Director Gina Ebanks-Petrie, said that no action had been taken because of staff shortages, the pandemic and his department’s view that “this issue was not a priority”.

As a result, in February, the DoE issued a cease-and-desist order to stop disturbing the blue iguanas and damaging mangroves. A month later, the DoE found that both the mangroves and the iguanas were still being disturbed, and so Bon Crepe Ltd was charged. Buttler argued that this case is relevant to that prosecution, which remains pending.

To protect the iguana, the NCC also issued an interim directive to designate the land in question as a critical habitat. While Bon Crepe has not challenged this directive in court, Bergstrom has asked Cabinet, which approved the interim directive, to overturn it. To date, it has not done so.

Soon after the interim directive was applied to the habitat, planning, which had still not taken enforcement action, instead invited Bon Crepe to make an after-the-fact application for planning permission, which it then granted in March of this year without consulting the NCC. However, the CPA adjourned an application made at the same time for more prospective planning to extend the road and install a gate.

But with no enforcement action taken by the planning department and no clear indication that the CPA properly revoked the wrongly granted planning permission, the case remains in limbo. Some five years after the DoE first raised the alarm, the necessary remediation of the land to protect Cayman’s iconic iguana has still not taken place.

The case continues.


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

Comments (83)

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  1. Anonymous says:

    So much over lizards running around in brush that you will never see regardless of numbers. How does your day-to-day life change if there were thousands of these lizards running around (that you will never see anyway) or a few hundred?

    Why not just pretend there are thousands running around in the wild, and if you desire to see what one looks like every few years, see one of the captive lizards at the Botanic Park?

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    • Anonymous says:

      So much over a road through the brush that you will never see. Why not just pretend it is there? And if you want to go see a trail through the bush take a walk on the nature trail at the Botanic Park.

      Does what you’re saying still make sense?

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  2. Anonymous says:

    Guess who is paying for both sides? Yep, we are…..

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    • Anonymous says:

      what I do know , is that when kids get free schooling, roads get paved, ambulance responds to emergencies etc etc….it Wasn’t paid for by Blue Iguanas.

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    • Anonymous says:

      I see government has set aside CI$ 713,000 for “unexpected” costs arising from litigation between the CPA and the NCC.!!
      Not one of our MPs standing up and questioning this ??
      Ezzard come back .

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  3. Anonymous says:

    So, according to Mark Scotland and CG Glidden, the road that Mark built in the image of this article is supposed to be a 12foot path? Really?

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  4. Anonymous says:

    Why don’t the people just buy the land from the landowner? That would be the simple solution no? Then they can offer Blue Iguanas free rein over 100’s of acres of land only in the Eastern Districts. Sounds wonderful…. to who?

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  5. Anonymous says:

    The CPA relies on Cabinet intervention to wave their magic wand on all illegal activities, including whatever payments and arrangements are exchanged between nominee Bergstrom and his company Bon Crepe to distance this illegal activity from the NRA. The NRA in the NRA’s Official Meeting Minutes they routinely redact the Block and Parcel numbers and payment values for compensation claimants, making it impossible to know who is being paid what. The Anti-Corruption Commission should be all up in this mess…yet crickets.

    https://www.caymanroads.com/documents/REDACTED-MINUTES—September-19-2024-MTG-400-20241011111355.pdf

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    • Anonymous says:

      1:00 pm Read the CPA minutes. CPA wasn’t relying on Cabinet – the landowner is. The CPA simply adjourned the matter pending the outcome of the landowner’s appeal to Cabinet – which appeal is is completely the landowner’s right under the National Conservation Act. Also if you cared to read those minutes (which are not redacted) you would see that the Interim Directive (which the landowner is contesting) was slapped on his property AFTER the road ( which is in the location and width of the legal access through it) was completed.

  6. Anonymous says:

    This is the sort of thing where an Anti-Corruption Commission would come in handy.

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    • Anonymous says:

      Our current anti-corruption legislation was gutted by the PACT government a year ago – no developer will ever be investigated let alone charged – neither will the politicians and civil servants who are paid by the developers to do the developer’s bidding.

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  7. Anonymous says:

    Not necessarily this case, but I find it staggering that given all the issues on SMB caused by over development the CPA, and by extension the government seem not to pay even a modicum of interest in the impacts of development in the rest of the island on the environment.

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    • Anonymous says:

      Not staggering – the developers don’t pay them to have any interest in the negative impacts of development

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  8. Anonymous says:

    Maybe the government needs to purchase whatever lands it wants to protect. It is unreasonable to prevent someone from making reasonable use of the land that they own.

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    • Anonymous says:

      Not the real issue here.

      It is largley about the lack of following process by the dept of planning and the cpa

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      • Anonymous says:

        The NRA does pay compensation claims as proxy, while redacting claimant identities, blocks, parcels, and amounts. Who knows if there even is land being exchanged for these payments. The NRA Meeting Minutes read like something out of the Sopranos. This is OUR money Cayman!

      • Anonymous says:

        I agree that Planning and the CPA ignore those parts of the law that don’t serve the interests of developers. However, the larger issue is that developers have systematically corrupted the original planning legislation that was passed in the 1990’s to protect our environment and Caymanians. Until that corrupted legislation is eliminated we are screwed.

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    • Anonymous says:

      10:02 am exactly correct and slapping Directives like this in private land is exactly what Wayne Panton and Gina Ebanks-Petrie said would never happen, when they passed the National Conservation Act into Law !

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  9. Anonymous says:

    Its quite simple, he should be made to pick up that fill.

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  10. Anonymous says:

    a planning board ran by developers and building supply owners, what could possibly go wrong?

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  11. Anonymous says:

    Just a thought, if the blue iguanas start breeding in the west of the island should we stop all developments on that side too?

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    • Anonymous says:

      12:47 am Interesting observation because that’s EXACTLY what the DOE is trying to do! Their BI breeding program was so successful that the BI’s are spreading their habitat on to unprotected privately owned land….the very private land that the DOE vowed NOT to impose development restrictions or protection on when they promoted the proposed law before it was enacted. I specifically say the DOE and not the NCC because the NCC has no clue about the history or the actual details of the law. Instead they simply rubber stamp whatever the DOE says…..so the DOE thinks it’s a powerful, untouchable demigod

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      • Anonymous says:

        Let’s be clear, the NCC is the DOE.

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        • Anonymous says:

          10:07 you are absolutely correct. I wrote the 9:00 am post and while I agree with you, I was trying to be accurate in terms of the laws. But it is absolutely true that the DOE (namely the Director) writes every thing that the “NCC” purports to write and then she has the NCC approve all her memos and directives retroactively !!

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      • Anonymous says:

        You mean the land where the blue iguanas lived before people (and rats/cats/dogs)? – Living with nature is a challenge. Either you’re willing to do it right or you’re, well, you.

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  12. Elvis says:

    Cayman is disappearing little by little and so called leaders and even locals do nothing.

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    • Anonymous says:

      To advance in the civil service, one must be willing to bend every which way to ensure those getting paid, continue to be. This is one of the many supporting reasons for a bigger jail. Our leaders aren’t doing nothing, they are propelling this.

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  13. Anonymous says:

    The current situation is ludicrous. We the tax payers are paying millions to fund litigation by the CPA that is being undertaken solely to enrich already rich developers.

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    • Anonymous says:

      4:43 Correction – the litigation was brought by the NCC, NOT the CPA. The CPA is only defending itself in a case that was brough against them, not by them.

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      • Anonymous says:

        Correction – the CPA made an unlawful planning decision and then failed to compel enforcement of the law – the CPA triggered the litigation

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    • Anonymous says:

      Wrong. It’s litigation brought by the NCC that is costing you millions. Millions you don’t have.

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      • Anonymous says:

        Millions? Really? Hyperbole much.

      • Anonymous says:

        How many times does the CPA have to lose to decide it is time, cheaper and in the best interest of the country to follow the law rather than the dictates of their special interest overlords?

    • Anonymous says:

      Actually the NCC keeps filing litigation when they could also just go to cabinet…

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      • Anonymous says:

        Isn’t that the same as going to the developers who own them??

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      • Anonymous says:

        I keep hearing people say that. Where is the law that says that Cabinet gets to decide legal disputes between Government departments? (Every time I ask I don’t get an answer so really want to now what the story is.)

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        • Anonymous says:

          2:08 good question and there are a couple of answers. One is that the Development and Planning Act makes such a provision to go to Cabinet with disputes like this. The other is that rather common sense- both the CPA and NCA are appointed by Cabinet – stands to reason that Cabinet is a logical first step in such disputes. And FYI – CPA tried to medicate the current situation (through attorneys) but the DOE Director refused to do so so, just like she refused a directive NOT to file court actions or retain attorneys without the Attorney General’s consent.

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          • Anonymous says:

            Actually, no, the I can’t find anywhere in “the Development and Planning Act makes such a provision to go to Cabinet with disputes like this”. Can you please tell me where it is so I can look again?

            Again, common sense may suggest that cabinet can intervene but under what authority can the Cabinet order either independent board to change their decision? (Even if they change the board the decision would stand until reconsidered by the board and the board would need a legal reason to do so.) Especially if the question is ‘was the decision legal or not’? Are Cabinet judges now to decide legal questions? Still trying to find what legal authority people are basing these assumptions on please.

        • Anonymous says:

          Since when is Cabinet limited to doing what is legal?

  14. Anonymous says:

    The development cabal’s shills voting to spend millions of our dollars to litigate against a government department in order to secure the right of developers to do whatever they want irrespective of the law – only in Cayman

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    • Anonymous says:

      4:31 The NCC brought this case, NOT the CPA.

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      • Anonymous says:

        The NCC brought the case because of the CPA…..is that too difficult for the space between your ears to digest?

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        • Anonymous says:

          I don’t remember voting for or authorizing the NCC to even exist, let alone waste my money.

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          • Anonymous says:

            You authorised it when the Legislative Assembly unanimously passed the NCA in 2013.

            Alden, Joey, Dwayne, Juliana, Wayne, Moses were in the LA then.

            Some might try to say they were absent from school that day though, but we can check the Hansard of who were there and who voted for this law

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          • Anonymous says:

            And you also didn’t vote for or authorize the CPA to even exist, let alone waste your money. – So why do you not apply your logic only to the NCC?

            CPA Wasting Money – by making illegal decisions and then defending them to the hilt. (A) The last case between them and NCC which CPA lost, lost on appeal, then lost at Privy Council. (B) This current case where they admit they broke the law with their decision but are fighting over some point of law that they hope will make their first illegal act OK somehow, rather than simply having the court vacate the decision they admit was illegal and then the CPA just reconsider the application. Because that’s all that happens in a JR. You get a do-over of the decision.

  15. Anonymous says:

    So what’s the end game? What do the NCC want? Whether it’s refused or approved the trail exists right? How does it change anything? Didn’t the cpa make a rule that no cars can use the trail? Doesn’t that do more to save the iguanas than if they refused it and cars continued to use it? I’m at a loss as to what the end game here is and what the point of the court case is? And no I’m not involved and I do think they should charge that jerk rich man regardless but I’m not sure how the cpa became the bad guy?

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  16. doodlebug says:

    This after-the-fact planning permission has to stop.
    And Planning and the CPA must follow the law.
    How difficult can this be.

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    • Anonymous says:

      Can’t change culture.

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      • Anonymous says:

        The current Development and Planned Act has been so corrupted by the development lobby over the past 30 years that the only thing that will save our environment is to repeal every amendment made since 1995, fire all senior civil servants in Planning and permanently disband the CPA.

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      • Anonymous says:

        And the developers pay the politicians to change the law to whatever they want

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        • Anonymous says:

          If this is true, and most of us believe it to be, then why can’t the ACC instruct the RCIPS to make the necessary arrests?

          • Anonymous says:

            The ACC are too busy investigating themselves and protecting their own interests. Could do with an independent enquiry into the ACC. Ah the irony.

            • Anonymous says:

              What are the Governor’s public office hours? Buck stops with her.

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              • Anonymous says:

                Stop looking for outsiders…in this case the Governor….to blame, 12:47. It’s we Caymanians that are supposed to be running our own internal affairs. Thats why our politicians have cut back the governors powers over the last few years. We’re supposed to be preparing ourselves for independence. Frightening, nuh true?

            • Anonymous says:

              Our Anti-Corruption legislation was totally gutted by the PACT/UPM government. Now corrupt politicians and corrupt civil servants who are owned by developers will never be investigated let alone charged or convicted.

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          • Anonymous says:

            Start with addition of airspace rights and other changes to the Registered Land Act to make way not only for 10 storey buildings along SMB but also Big Daddy D and Big Macs twin towers dream. Tip of the iceberg but strikes me as a good starting point?

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      • Anonymous says:

        Corruption is ingrained in Cayman’s culture so much so that it is widely accepted.

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    • Anonymous says:

      Yes. ATF fines are ridiculously light. Many developers here and a few on the Brac just include those anticipated fees in their bids. If a person or entity hasn’t been granted proper planning permission and they proceed anyway, the subsequent fees should not only be prohibitive, they should be extremely punative. Otherwise, the beat goes on, and one day some rich developer will bulldoze up the middle of the Queen Elizabeth II Botanic Park, and they will get their slap on the wrist.

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  17. Anonymous says:

    This CPA board under it’s current chairman seem hell bent on doing whatever they feel like and are quick to waste our tax dollars on lawyers. Why is this man still the chairman? He is involved in so many developments that doesn’t anyone feel this influences things? The whole CPA board need to be dismissed.

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    • Anonymous says:

      1:09 pm Are you serious ???? It was the NCC, NOT the CPA that brought this case. The CPA was therefore forced to answer the case and therefore cost the Government more money

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      • Anonymous says:

        CNS, when the same trollish ahole makes the same comments again and again throughout a thread, can you/spam detection delete them?

        CNS: I am looking for a way to bring back the troll button, which I was very fond of and served a purpose.

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        • Anonymous says:

          And the LOL button. With some of the funniest things I’ve ever read being unintentional.

      • Anonymous says:

        Thank you Mr Chairman!

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  18. Anonymous says:

    All this fuss over a little walking trail. What good is Cayman if the idle rich can’t do whatever they want?

    (Sarcasm font)

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  19. Anonymous says:

    So the CPA gives planning permission, you build your house and they can revoke it at any time?

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    • Anonymous says:

      If they broke the law by giving it? then yes… that’s how the law works just because you benefitted from a failure of the law doesn’t suddenly make it legal.

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  20. Anonymous says:

    The facts of the case are that DOE prosecuted a rich man for killing our environment. The rich man himself and the rich men on the CPA don’t want that, so they are trying everything they can to make it retrospectively not illegal. They are trying to grant after the fact permission, they are trying to overturn the directive, they are spreading lies and rumors to discredit the DOE, they are trying to change the national conservation law, they are even running for politics next year themselves AND they are wasting a million of our dollars in court. All of this is so the rich developer cabal doesn’t ever have to face any consequences for destroying our environment.

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  21. Anonymous says:

    Thanks CNS for naming and shaming James Bergstrom. These “after the fact” applications should be prosecuted in the criminal courts and the CPA should be held culpable as well.

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  22. Anonymous says:

    It’s not an unlawful road, it has received planning permission.

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