National Conservation Council v The Central Planning Authority
| Jurisdiction | Cayman Islands |
| Judge | Mr Justice Alistair Walters |
| Judgment Date | 23 August 2022 |
| Year | 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: G 207 OF 2021 |
The Queen On the application of
and
Hon Mr Justice Alistair Walters, Actg.
CAUSE NO: G 207 OF 2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
IN THE CIVIL DIVISION
Sections 3 and 41 of National Conservation Act. Intention of Parliament when enacting NCA. Power of NCC to delegate its functions under s.41. Power of NCC to delegate those functions to the Director of the Department of Environment. Extent to which Government entities have any discretion under s.41(4) as to whether to apply to the NCC prior to taking any action that may have an adverse effect on the environment. Meaning of “direct” in s.41(5).
Mr Christopher Buttler QC and Kate McClymont of Nelsons for the Applicant
Mr Ian Paget Brown QC and Samuel Jackson and Selina Tibbets of Jackson Law for the Respondent
Mr Tom Lowe QC and Mr Michael Alberga of Travers Thorpe Alberga for the Interested Party
These proceedings relate to a dispute between the Applicant (the “NCC”) and the Respondent (the “CPA”) in relation to aspects of their respective statutory powers and roles. The question as to the extent of those powers and roles arises in circumstances where the CPA is considering an application for planning permission which is likely to have an adverse effect on the environment, when the NCC becomes involved in that process and whether the NCC has the power through the Director (the “Director”) of the Department of Environment (the “DOE”) to impose conditions on the grant of planning permission or to direct the CPA to refuse the application for permission. The issues raised in this case apply not just to the CPA but all government entities.
This case has attracted much public interest and it is important to bear in mind that the Court is not being asked to consider or review any issues or decisions that relate to the environment itself. As explained above, the case is very much focused on legal issues. It is also important to bear in mind that the issues raised in this case apply not just as between the NCC and the CPA but as between the NCC and all Government entities 1 where similar environmental issues arise. Therefore, the principles covered by this judgment are of more general application than just to the facts of this case.
The Interested Party is the owner of property situated at the northern end of Boggy Sands Road (registered with the Cayman Islands Land Registry as Block 5B Parcel 162) (the “Property”). It is in the context of an application for planning permission in relation to the Property that was considered by the CPA in September 2021 (the “Application”) that this dispute arises.
The proceedings involve an application by the NCC for an order quashing the decision of the CPA to grant planning permission in relation to the Property, notwithstanding the objection of the NCC.
During the course of the hearing, counsel for the NCC and CPA made it clear that the parties were not engaged in these proceedings in an adversarial way but rather were placing the various issues before the court in order that they may be resolved, thus clarifying the legal relationship between the two bodies.
The NCC was established by virtue of s.3 of the National Conservation Act 2013 (the “NCA” 2) and consists of 13 voting members. Section 3(9) of the NCA sets out the functions of the NCC.
“(9) The Council has the following functions —
(a) subject to this Law, managing and making recommendations on the use of the Fund;
(b) promoting the biological diversity and the conservation and sustainable use of natural resources in the Islands;
(c) co-ordinating the establishment and adoption by the public and private sectors of national policies for the conservation and sustainable use of natural resources, including —
(i) the use of wetlands and wetland resources; and
(ii) the excavation of aggregate and fill materials;
(d) recommending and maintaining protected areas and conservation areas and consenting, maintaining and restoring their natural resources in accordance with Part 3;
(e) conserving, maintaining and restoring populations and critical habitats of protected species in accordance with Part 4;
(f) promoting the training of professional and voluntary personnel in the fields of research, management and wardening of protected areas and species and the other natural resources of the Islands;
(g) promoting wider understanding and awareness of the significance of the ecological systems of the Islands, the benefits of consenting natural resources and of the provisions of this Law and the Conventions;
(h) publicising the establishment of protected areas and the designation of protected species and raise public awareness, through educational programmes and other means, of the significance and value of protected areas and species and of the benefits that may be gained from them;
(i) encouraging public involvement, particularly by local communities, in the planning and management of protected areas and the conservation of protected species;
(j) promoting the adoption of guidelines by entities for the integration of conservation issues into their decision making processes and for the achievement of the sustainable use of natural resources;
(k) promoting district, national and regional initiatives, including co-operative enforcement measures and mutual assistance in the enforcement of national laws, in order to further the objectives of the Conventions;
(l) promoting national plans for emergency responses to activities or events, whether caused naturally or not, that present a grave and imminent danger to biological diversity and encouraging international co-operation to supplement such national plans;
(m) promoting national plans for the sustainable management, conservation and enhancement, as appropriate, of sinks and reservoirs of greenhouse gases; and
(n) carrying out such other functions and duties as are specified under this Law and the regulations.
(10) In carrying out its powers and duties the Council may, subject to any directions of the Cabinet, enter into agreements and other co-operative arrangements with regional agencies, interstate agencies, voluntary organisations and other persons for the purpose of this Law and the Conventions.
(11) Without prejudice to the generality of subsection (10), arrangements pursuant to the subsection may provide for —
(a) the regulation, promotion and co-ordination of surveys and research relating to natural resources;
(b) the conservation of particular species pursuant to Articles IV and V of the Migratory Species Convention;
(c) the establishment and operation of joint or regional conservation plans or management bodies for protected species;
(d) the taking of joint or harmonised enforcement measures in respect of any laws relating to protected species or their critical habitats; and
(e) the establishment of contingency plans for emergency responses to activities or events that present or may present a danger to biological diversity in the Wider Caribbean.
(12) The Council, subject to any directions of the Cabinet, may make orders and guidance notes and issue directives for the purpose of giving effect to the provisions of this Law and such orders, guidance notes and directives may include —
(a) criteria for identifying endangered or threatened species or other species needing protection under this Law;
(b) criteria for evaluating proposals for the establishment and management of protected areas and for the measures required to protect and conserve protected species and their critical habitat;
(c) criteria for the application for, and grant of, monies from the Fund;
(d) criteria for the review, assessment and reporting of activities funded in whole or in part by monies from the Fund;
(e) the form and content of a petition under section 16(3);
(j) procedures for determining the circumstances under which permits and licences may be granted under Part 5;
(g) measures governing the methods and conditions under which the captive breeding or artificial propagation of protected species may be allowed;
(h) procedures for regulating and controlling wild populations and the import, introduction, possession, transportation and release of alien or genetically altered specimens;
(i) procedures for consultation by entities pursuant to section 41(3); and the carrying out of environmental impact assessments under section 43.
(13) The Council may delegate any of its functions, other than the making of orders and the issuing of directives, to the Director or to any committee or sub-committee of its members.”
One of the main issues arising at the hearing was the extent to which s.3(13) permits the NCC to delegate its powers to the Director. Much of the argument turned on the meaning of the words “orders” 3, “direction” 4 and “directives” 5 which I will come back to in due course.
The DOE is responsible for “promoting the biological diversity and the conservation and sustainable use of natural resources in the Islands” 6. The Director has a statutory responsibility to administer and enforce the NCA 7. Her statutory functions include identifying protected areas and
Section 3 and schedule 2 to the NCA provide for its composition as follows:
“1. (1) The Council shall consist of the following voting members—
(a) the Director or his nominee from the Department of the Environment;
(b) the Deputy Director of Research in...
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