NCC and CPA in court over unlawful road in blues territory

(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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