Changes to law would pave way for unchecked development

(CNS): One of the most fundamental changes the UPM government is proposing to make to the National Conservation Act would, if the amendment bill passes, almost eliminate the main purpose of the law. One of the clauses removes the National Conservation Council’s ability to curtail even the most egregious development if, for example, the Central Planning Authority gives its approval to an application.

During a press conference last summer, Premier Juliana O’Connor-Connolly claimed she wouldn’t “gut” this legislation, but the bill tears at the very heart of what the act was designed to do: protect the natural environment.

Currently, under section 41 of the NCA, the National Conservation Council can, based on technical and scientific advice, direct entities such as the CPA not to grant planning permission for developments that would cause serious damage to protected areas such as marine parks or land set aside for conservation.

But this section of the law has given rise to much of the misinformation circulating about it, as well as inaccurate claims that the Department of Environment’s director wields significant power. Given the massive amount of development, even in extremely sensitive areas, and the continued loss of mangroves and pristine natural habitats, this is evidently not the case and a false narrative circulated by the powerful development lobby.

In December, NCC Chair Stuart Mailer said that, given the rate and scale of physical development taking place in Cayman, it was “blindingly obvious” that the law was not hampering development.

“The false narrative that the National Conservation Council and the National Conservation Act would somehow restrict development was a prevalent feature of long-standing objections to the NCA raised by certain vested interests before it was passed into law,” Mailer said.

“Unfortunately, those objections have been kept alive throughout the now almost 11 years of the NCA’s implementation, along with continued scaremongering that having protected species present on one’s land will somehow result in automatic refusal of all development.

“As we have seen, even if there is an endangered iguana on the land, permission can still be, and has been, issued for its development,” he added as he urged the government not to strip the NCC of its limited ability to protect the natural environment.

The power conferred by section 41 has been rarely used and only in cases where it is obvious that development in certain locations has to be curtailed, such as buildings too close to the ocean or in a marine park, or if it involves clearing habitat set aside for the critically endangered endemic blue iguana.

But despite the existing limitations, the UPM has seen fit to strip even that limited power from the law with this proposed legislation. The draft replacement clause now states that where the NCC makes a recommendation about a proposed action, an entity shall comply with that recommendation “unless it considers that there are good reasons not to do so”.

This would give the CPA the power to override decisions based on scientists’ findings and simply grant permission for a developer to build whatever the CPA deems acceptable, regardless of environmental damage.

In response to questions from CNS about this proposed amendment, a DoE spokesperson said that the change would prevent the NCC from protecting the environment. Explaining the impact of this clause in the bill, which was drafted without consulting the DoE or NCC, the technical experts said the wording enables any entity that doesn’t agree with an NCC recommendation to disregard the advice, including where it applies to a Protected Area or Critical Habitat.

This removes any binding decision-making power from the NCC.

“Instead of having the current legal provision where the NCC can direct an entity in relation to adverse effects on a protected area or the critical habitat of a protected species, the DoE/NCC will have to rely on convincing entities that the advice should be followed and the non-technical Appeals Tribunal to adjudicate disputes raised by NCC, the proponent or any other person,” the DoE told CNS.

When the law was originally drafted, the goal was to ensure that DoE scientists could, via the National Conservation Council, offer the best technical advice to mitigate the impact any development might have on the environment. Currently, where it is impossible to do so, the NCC can direct a refusal.

For years, even though the department had submitted well-researched, technical environmental advice and non-binding directions to help developers avoid damaging natural habitats when undertaking projects, it was almost never given more than a passing acknowledgement and usually ignored.

In some cases, leading local attorneys representing developers would insist that the CPA was legally bound to ignore the DoE’s advice because there was no provision in law for such advice to factor into planning decisions.

To address that, section 41 was drafted to ensure that during the deliberations of entities such as the CPA, environmental considerations were given the same weight as traffic issues, water management, socio-economic impacts, zoning and aesthetics.

In the same way that the CPA can turn down an application for a mechanic shop on a street zoned for residential family homes, the law would enable the CPA to turn down an application to build in the ocean in a marine park, as with the infamous case of the Boggy Sand Cabana.

But even then, the CPA fought against that directive all the way to the Privy Council. However, because the law had been drafted to draw the line at this most damaging type of development, the DoE’s directions were eventually upheld.

But under the proposed amendments to the law, the CPA could have allowed the Boggy Sand developer to build exactly where he wanted. Even his original application for a house in the ocean could have been approved without the NCC being able to stop it.

Among the many other changes this legislation proposes, the dilution of section 41 will mean there will no longer be any checks on any kind of development.

But public sentiment has long been clear that the runaway development on Grand Cayman over the last two decades has gone too far. Not only are Caymanians concerned about the loss of their natural habitat, but the overdevelopment of Cayman’s coastline has also priced most ordinary people out of the property market.

As developers seek to build for the luxury market, selling to wealthy overseas landowners for maximum profit rather than building for the community has resulted in a housing crisis, dwindled beach access and the removal of critical mangroves. Not only is Grand Cayman’s natural beauty fading, but the island is also losing the resilience it will need to face the impacts of climate change.

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