Grand View Strata Corporation Appellant v 1. The Planning Appeals Tribunal (PAT) 2. Bronte Development Ltd Respondents

• Jurisdiction: Cayman Islands
• Judge: Mr. Justice Seymour Panton
• Judgment Date: 30 September 2015
• Judgment citation (vLex): [2015] CIGC J0930-2
• Docket Number: Cause No: G0244/2014
• Court: Grand Court (Cayman Islands)
• Date: 30 September 2015

In the Matter of the Development and Planning Law (2011 Revision)

And in the Matter of an Appeal Against the Decision of the Planning Appeals Tribunal in Respect of Block 13B Parcel 202

Between:

Grand View Strata Corporation

Appellant

and

1. The Planning Appeals Tribunal (PAT)

2. Bronte Development Ltd.

Respondents

[2015] CIGC J0930-2

Before:

Mr. Justice Seymour Panton

Cause No: G0244/2014

IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION

1 On 5 December 2014, the Planning Appeal Tribunal (PAT) handed down its reasons for dismissing the appeals of Grandview Strata Corporation (Grandview) and two other parties against the decision of the Central Planning Authority (CPA) to grant permission to Bronte Development Ltd (‘Bronte’) to construct two sets of apartments on land at Snooze Lane, George Town Grand Cayman. By an amended notice of originating motion, dated 19 December 2014, Grandview filed an appeal against the decision of the PAT. This judgment deals with Grandview's latter appeal.

2 Grandview is seeking a reversal of the decision of the PAT, and that the ‘planning1 permission’ granted to Bronte be also reversed and refused.

3 Bronte's application for permission to build was filed with the Department of Planning on 11 October 2013. Thereafter, that Department issued notices to persons who may be affected indicating that the application was available for inspection by them, and inviting them to object to or support the application if they wished. The Department also notified several agencies of the application and invited comments and or recommendations from them.

4 There were several objections by property owners, and there were also comments and recommendations by the various agencies. In the end, the CPA granted the application subject to certain stated conditions.

5 The grounds of appeal that were dealt with by the PAT are similar, in substance, to the grounds that were argued, with much force, and at great length, by the Appellant before me. I find it convenient at this stage to summarize what I regard as the main points in the judgment of the PAT. They are as follows:

• i. The PAT's jurisdiction is limited to adjudicating on decisions made by the CPA on matters that fall within the ambit of the four grounds set out in s.48(1) of the Development and Planning Law. There is no power to conduct a ‘denovo’ hearing;

• ii. The regulations indicate an intention on the part of the legislature to require buildings over three storeys high to have a setback of a total of 145 feet from the high water mark;

• iii. The regulations provide for a minimum restriction of 20 feet for side setbacks (with a discretion to increase);

• iv. The CPA acted appropriately in exercising its discretion to vary the setback so that the pool on the existing plans is in alignment with the adjacent property;

• v. The weight of the comments and recommendations from the various government agencies including those from the Department of the Environment was properly assessed by the CPA;

• vi. The CPA fulfilled the requirements of the Law as regards notifying all concerned of the application by Bronte, and there was no breach of the principles of natural justice;

• vii. The reasons provided by the CPA were adequate, although there is ‘the need for improvement generally’;

• viii. The Development Plan2 has to be viewed in the light of the subsequent amendments to the Development and Planning Law and the Regulations;

• ix. It is ‘pure speculation’ to submit that the development will have an adverse effect on tourism; and x. The National Conservation Law was not in force at the time the application was considered, and so could not have formed part of the deliberations of the CPA.

6 The Appellant is challenging the decision of the PAT on grounds which were filed with the Clerk of the Courts on 22 December 2014 and which I also now summarize:

• i. The PAT has erred in law in its interpretation of s.48 of the Development and Planning Law as regards the question of a rehearing;

• ii. The PAT failed to consider and determine that the CPA erred in law in not applying the policies set out in the Development Plan, and the PAT failed to exercise its own judgment as to whether or not granting permission would be at variance with the Plan3;

• iii. The PAT failed to consider and determine that the CPA erred in law in failing to take into account the adverse comments of the Department of the Environment, and the lack of any environmental study especially given the proposals for underground parking;

• iv. The PAT failed to consider and determine that the CPA erred in law in applying the wrong test to determine the planning application;

• v. The PAT failed to consider and determine that the CPA erred in its understanding of Regulations 8(10)(e) and 10(1)(f) in relation to setbacks and side setbacks;

• vi. There was procedural unfairness on the part of the CPA; and vii. The PAT failed to consider and determine that the CPA erred in law and/or unreasonably failed to take into account or evaluate the impact of the development on tourism.

7 Before dealing with the submissions made by the respective parties, I think it appropriate to mention the law and regulations that are relevant for consideration in the determination of applications for planning permission in the Cayman Islands.

The foremost piece of legislation that applies to this application is the Development and Planning Law (2011 Revision) (‘the Law’). It establishes the CPA and provides a framework for the CPA's consideration of applications for permission to carry out developments. The Law at s.6 states that the CPA shall:

• ‘(a) consider the likely impact of the proposed development on the infrastructure of the Islands as well as on the educational, social, medical and other aspects of life in the Islands;

• (b) consider whether there are other issues of national importance which are relevant to the determination of the application for development and require evaluation;

• (c) consider whether there are technical or scientific aspects of the proposed development which are of so unfamiliar a character as to jeopardise a proper determination of the question unless there is a special inquiry for the purpose;

• (d) identify and investigate the considerations relevant to, or the technical or scientific aspects of, the proposed development which, in its opinion, are relevant to the question whether the application should be approved; and

• (e) …

8 In addition, the CPA shall, to the greatest possible extent consistent with its duties, consult with departments and agencies of the Government that have duties, aims or objectives related to those of the CPA4.

9 The Law establishes a department of Government called the Department of Planning, and provides for the appointment of a Director of Planning and such other officers as are necessary for the proper exercise of the functions of the CPA. These officers are responsible for the administration of the CPA, including preparing agendas and minutes and communicating and implementing the CPA's decisions. The Director has a duty to make to the CPA such recommendations as may appear necessary for the implementation of the Law5.

10 Section 13(1) of the Law provides that, except where otherwise provided for by the Law, permission to develop land shall not be given which would result in development that is at variance with a Development Plan. And s.15(1) authorizes the CPA to grant permission either unconditionally, or subject to such conditions as it thinks fit, or to refuse permission.

11 The relevant regulations for the purpose of this appeal are the Development and Planning Regulations (2013 Revision) (hereinafter referred to as ‘the Regulations’), with particular reference to Regulations 5, 8 and 10 thereof.

Regulation 5 provides that the control of development shall be in accordance with these Regulations and the Development Plan, but the CPA may give permission for development deviating from the Regulations so long as it is in keeping with the Development Plan.

Regulation 8 deals with parking, height of buildings, setbacks and the giving of notices to neighbouring owners.

Regulation 10 deals specifically with hotel/tourism related development. It reads thus, in part:

‘10. (1) Hotels, cottage colony developments and apartments are permitted in Hotel/Tourism development zones if they comply with the following requirements:

• (a) The maximum number of bedrooms for hotels is sixty-five per acre;

• (b) The maximum number of apartments is twenty-five per acre;

• (c) The minimum lot size for hotels and apartments is half an acre with a minimum lot width of 100 feet;

• (d) The minimum lot size for residential development within a hotel zone is 12,500 square feet and the minimum lot width 100 feet;

• (e) The maximum site coverage for hotels and apartments is forty per cent of the lot size;

• (f) The minimum side setbacks are a minimum of 20 feet;

• (g) The minimum rear setbacks are 25 feet from the road edge or lot boundary as the case may be; and

• (h) In the case of a cottage colony development—

  • i. The maximum number of cottage units is ten per acre;

  • ii. No cottage unit contains more than two bedrooms; and

  • iii. The maximum site coverage is twenty-five per cent of the lot size.’

12 The Development Plan is referred to as a ‘Planning Statement for the Cayman Islands’ and in the Statement itself, it is said that where there is a conflict between the Regulations and the Planning Statement, the Regulations shall prevail.

‘The general aim of the [P]plan is to maintain the quality of life in the Cayman Islands by effectively directing development so as to safeguard the economic, cultural, social and general welfare of the people, and subject thereto the environment’.

The primary objective, according to the Development Plan, is...