Ruling shows NCC needs power to challenge poor decisions
CNS): The Grand Court has again demonstrated why the National Conservation Council needs to retain its ability to challenge unlawful decisions made by government entities in relation to the National Conservation Act in the courts. On Wednesday, the court delivered its ruling in the judicial review brought by the NCC against a decision by the Central Planning Authority regarding an after-the-fact planning application by landowners in East End for an illegally constructed road and the clearance of natural habitat in blue iguana territory.
The court found for the NCC on every part, stressing the continued problems that the council experiences with the CPA’s misinterpretation of the conservation law.
NCC Chairperson Stuart Mailer said the council was pleased to receive the final ruling, which confirmed the CPA had acted unlawfully in this case. The board initially adjourned and then subsequently reactivated and amended the after-the-fact permission it had improperly granted for a private road.
“The NCC’s success in this case, and the previous case brought against the CPA by the NCC, validates how critical it is that the NCC retain the ability to challenge questionable decisions made in contravention of the NCA in a court of law,” Mailer said.
Last Friday, a few days before this ruling, the minority government withdrew an amendment bill it had tabled to gut the NCA after failing to garner the support of the opposition. That bill would have removed the NCC’s ability to make a challenge such as this. With no other redress for the council, this unlawful decision, which threatened Cayman’s most endangered endemic creatures, would have been left to stand.
The CPA had granted Bon Crepe after-the-fact planning permission for a road that cut through pristine habitat between the Colliers and Saline reserves. This is where critically endangered blue iguanas that are reared in captivity are released as part of the decades-long, internationally acclaimed conservation programme to bring these endemic reptiles back from the brink of extinction.
Even after the CPA eventually recognised its error, it failed to take proper corrective action. With the NCC and the CPA remaining at odds over the legal state of the planning permission, the NCC was forced yet again to apply to the court for direction to ensure that the CPA followed the law.
The court found that the CPA’s decision to grant planning permission on 14 March 2024 was unlawful. It also once again found that the CPA had failed to consult the NCC as required by section 41(3) of the NCA and misdirected itself on the adverse environmental impact of the road. The court concluded that the planning permission should be quashed.
The court also found that a subsequent decision by the CPA to modify the earlier one rather than revoke the planning permission was also wrong. The ruling clarifies that the CPA does not have the power to revoke retrospective planning permission once granted, noting that the statutory framework under the D&P Act limits the CPA’s power to revoke permissions to situations where the development has not been completed.
In the ruling, the court also noted the planning director’s failure to take enforcement action against the unlawful act by the landowner. It said the excuses made by the director for not doing so were “unconvincing, particularly against the background of the DoE repeatedly requesting the DoP to do so from July 2019 onwards”.
Kate McClymont, the local attorney who instructed Chris Buttler KC on behalf of the NCC, summed up what this ruling means.
“The judgment underscores the CPA’s continuing failure to properly understand and apply both the environmental and planning legislation,” she said. “We are pleased to see the Judge’s acknowledgement that it was the CPA’s refusal to agree to the NCC’s reasonable settlement proposals that led to expenditure of public funds in this instance. We hope the CPA will cooperate with the NCC more sensibly in future to ensure such issues are resolved without recourse to litigation.”
While the political arm of government and the development lobby continue to blame the NCC and the DoE for these legal challenges, the reality is that the problem lies with the CPA, whose members continue to bristle at taking any directions from the NCC, even though this is done very rarely in the interests of the environment and by extension the people to which our natural resources belong.
Despite yet another clear ruling from the court that the planning department continues to act in contravention of the NCA, there are fears that the false narrative about the law, the DoE and the NCC will not disappear.
See the full ruling below and in the CNS Library.
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Category: Crime, development, Environment, Local News
Mr Bergstrom should be ashamed of himself. Not much else needs to be said…
This exemplifies the powers that be protecting habitual rule breakers, who commit crimes.
Did CARA or CILPA investigate illegal practice of Cayman law by foreign lawyers connected to local law firms?
FATF 5th Round Mutual Evaluation is around the corner in 2026.
Not quite on point, but the sheer incompetence surrounding the dissolution of CARA and failure so far to replace it with ANY lawyers’ disciplinary body at all is breathtaking and will surely be flagged as a major failing by the FATF.
JB is regulated by the Law Society of Hong Kong who investigate complaints; he’s a member of the Honourable Society of the Inner Temple of England and Wales, complaints handled by the Bar Standards Board; and admitted by the Cayman courts to have practice rights in Cayman. Does the latter not have any oath, obligation, code of conduct or consequences to cover this?
Proceeds of Crime Act has remedies.
Jay Ebanks has CPA board loaded with his cronies and McKeeva’s so you can’t expect anything different.
VOTE THEM OUT!!!
The current CPA chairman is on a power trip and will not accept anyone saying anything because he is the BIG BOSS! They all need to be removed ASAP.
*former chairman.
Great work Kate!
Sack these board members … and get a lawyer on the board to advise them. Perhaps they should do that for all the boards…
but where will the current members need to wait to get aboard another gravy train? how will they look out for those plucky developer friends?
Transfer them to the Port Authority where the Gravy is much thicker, more salary than Stioend for Mac Kenny and Saunders friends.
Given the scathing rebuke of the director of planning, he’s the one who really needs to be sacked. If he had an ounce of integrity, he’d resign after this ruling, but of course, he’ll just say he was doing what he was ordered to do.
“he’ll just say he was doing what he was ordered to do.”
Which is spot on truth – but we all know where the ‘orders/money’ is coming from. It all stems back to an uneducated, poor electorate that will accept being bought out for needed money. When you are worried about how to feed and house your family next week/month, you have little concern of the welfare of your grandchildren. Cayman was been bought out many years past and the future cannot be altered; too little, too late.
Accurate advice from a lawyer recorded in the formal minutes would get in the way of selling decisions and therefore will never happen until the CPA is done away with or the entire system designed to sell appointments to cronies changes.
Do you know any lawyers willing to work for 400$ a DAY plus all the free time before and after meetings to read Agendas, Minutes, drafts any other 300 page studies etc? Didn’t think so but you all were the first ones to cry when you heard members were getting paid more than the previous $100 per meeting.
The wrong decisions are the ones that developers pay for. Then we pay millions to try to put things right and the developers stooges use public money to fight efforts to put things right.
The rot starts with our electoral system, and the power we give to politicians to directly and indirectly sell favorable outcomes to developers. Does anyone actually believe that the appointees to the CPA are the best qualified people to make development decisions for the benefit of the country?
One of the best decision ever to been made for the environment. The NCC should now sue the CPA and Bergstrom for legal costs and damages created by the road plus replanting of trees.
Unfortunately the way things have been designed by bought elements in the civil service, we the taxpayers get stuck with paying for everything. The developers and their political and civil servant stooges pay for nothing and have no accountability.
And the other bergstrom who is building the meadows just went and increased prices for everyone even though they had all signed fixed price contracts.
Well someone has to pay for his new boat!
Many years ago, I heard that the Planning board should have been made up by land experts and the public. The experts were to give guidance of things like zoning, land use, boundaries, drainage, legal advice, etc.
That recommendation was not taken and people with minimal or no relevant knowledge were appointed.
Guess we are paying for it now.
We have been paying for more than 25 years.
And this Government wanted to remove the experts from the NCC. Because the CPA has shown how well that works.
Does Sammy have time to appeal to the Privy Council before the election?
Which Sammy? If you mean Sammy Jackson, he wasn’t involved in this case. If he has been, the CPA would have won this case
Like he won the last ones, hahahhahahaha
There needs to be much more punitive fines for ATF penalties. It’s currently often factored into the cost of business. Companies and corporations will continue to do this until we make it HURT.
Agreed – the penalty should be at least $1,000 per square foot of land cleared or build done or both
But Stuart Mailer isn’t the Chairman of the NCC so why is he making these statements?
What do you mean? When did that change?
Tuesday
He is…
Not any more thank god
God is good.
Then whatever God you’re talking about is corrupt. It’s probably something carved out of gold, because all you’re interested in is making money.
LOL. Piss away all the money you want fighting each other. Not one single tree will ever be put back as a result.
So, you think that the rule of law is not worth defending?
And because of this now the CPA is being overly careful and sending basically every application to the NCC under 41(3) even for applications that don’t need it. In my opinion the current CPA board should be dismantled as a result of this judgement. They lack the knowledge and discretion to understand and apply the VERY simple regulations. It has now just become a political circus between two government bodies. Waste of public funds.
It’s the NCC that needs to be disbanded.
That’s happened !
The facts speak for themselves! The corrupt special interests can gnash their teeth all they want but the people can see that these issues are all about the CPA and planning wanting to have their way all the time.
CPA and corrupt politicians have given us 5 mile beach, mashed up condos from crazy setback variations, vast coastal mangrove removal, more and more flooding in our communities and destruction of our quality of life!
We the people see it! We the people will no longer fall for the bullshit! Keep your corrupt hands off the NCC!
So no need to worry about Mac and Bryan taking your land, the NCC will do it instead.
Every property owner in this country ought now to be worried in relation to the recent illegal extension of compulsory acquisition to private property for any reason!
Only the NCC won’t bother compensating you.