R (National Conservation Council) v Central Planning Authority; Cayman Property Investments Ltd (as Interested Party)
| Jurisdiction | Cayman Islands |
| Judge | (Walters, Ag. J.) |
| Judgment Date | 23 August 2022 |
| Court | Grand Court (Cayman Islands) |
(Walters, Ag. J.)
Development and Planning Law — planning permission — adverse effect on environment — if National Conservation Council expresses view that planning application would or would be likely to have adverse effect on protected area or critical habitat of protected species, Central Planning Authority must apply to Council under National Conservation Act 2013, s.41(4) before granting application
Held, judgment as follows:
(1) The Guidance was lawful and binding. Looking at the provisions of the NCA itself, there was nothing that placed restrictions on the NCC to issue the Guidance in its current form or that would render the Guidance unlawful or suggested that the NCC could be said to have been acting ultra vires when issuing it. Even if there was good argument to that effect, the NCC had rightly pointed out that, unless and until challenged, the Guidancestood to be followed as a matter of law. It was expressly provided that the Guidance could cover procedures for consultation under s.41(3) which it did. The court considered the Guidance to be lawful and, as a matter of statute, must be followed by the entities (para. 51).
(2) Section 41(4) dealt specifically with circumstances in which the taking of any action by an entity would or would be likely to have an adverse effect directly or indirectly on a protected area or on the critical habitat of a protected species. In such circumstances, the relevant entity had to apply for and obtain the approval of the NCC before taking such action. Neither the CPA nor any other entity had any meaningful discretion under the subsection. Assuming that consultation took place under s.41(3) in accordance with the Guidance, the process under s.41 would work as follows: (i) after consultation under s.41(3), had the NCC expressed any view about the consequence of the proposed action by an entity? (ii) If no, that would be the end of the matter. (iii) If yes, and the NCC expressed the view that the giving of any undertaking or approval would or would be likely to have an adverse effect on the environment generally and the proposed action did not involve a protected area or the critical habitat of a protected species, then the entity should consider what the NCC said but it was not binding. At this stage, based on the response from the NCC, entities such as the CPA might choose to impose related conditions as it thought fit on a grant of planning permission. (iv) If yes, and the NCC expressed the view that the giving of any undertaking or approval would or would be likely to have an adverse effect on a protected area or a critical habitat of a protected species, there appeared to be no option but to apply to the NCC under s.41(4). At that point, the only question for the relevant entity was whether the NCC had expressed the relevant view. If it had, an application under s.41(4) was mandatory. It was not a case of the NCC having to engage with the relevant entity to ensure that this was done, the entity was required to apply as a matter of law. It clearly was incumbent on the NCC to express its views sufficiently clearly so that there could be no ambiguity as to whether there was a likelihood of an adverse effect and whether it would involve a protected area or the critical habitat of a protected species. Once that had happened, the entity had no choice but to apply under s.41(4), whether or not it agreed with the NCC. This was consistent with the expressed intention of the legislature as well as the language of the NCA. The NCC through the DoE was a specialist body. To suggest that an entity had to conduct its own assessment of adverse effect or that it could seek to substitute its own decision for that of the NCC either by reaching its own view that the likelihood did not arise or that it could satisfy the concerns of the NCC through the way that it structured its undertaking or approval seemed to the court to subvert the intention of the legislature, the express language of s.41(4) and the Guidance (paras. 61–63).
(3) The CPA acted unlawfully in failing to apply to the NCC under s.41(4). In its June 2021 letter purporting to direct the CPA to refuse planning permission, the NCC raised inter alia the potential impact ofredevelopment methods and design on the nearshore environment, the eventual collapse of the existing structure and the impact of that on the nearshore environment, the adjacent marine reserve (protected area), the likely direct and indirect adverse effects of the proposed planning approval on the adjoining protected area, and that the adverse impact of the proposal could not be satisfactorily mitigated by conditions. In her July 2021 memorandum, the Director summarized the position of the NCC as being that the proposed development would result in the detrimental alteration of a marine protected area and the environment generally. It could not have been clearer that the Director and the NCC took the view that the grant of the proposed planning application would result in an adverse effect pursuant to s.41(4). This required the CPA to apply under s.41(4). The NCA provided that the decision maker in all material respects in relation to s.41(4) was the NCC. The role of the entity was limited to following the Guidance, receiving any response from the NCC pursuant to s.41(3) and, if the wording of the CPA invoked s.41(4), making the required application. As the position of the Director and the NCC was clear, namely that the grant of the application would or would be likely to have an adverse effect whether directly or indirectly on a protected area or on the critical habitat of a protected species, and the CPA was well aware of that, the CPA acted unlawfully in failing to act on the clearly expressed views of the Director/NCC by not applying under s.41(4) as it was required to do (paras. 64–70).
(4) The consequence was that the decision to grant the application was a nullity and was quashed. Section 41 had been invoked by the DoE/NCC expressing its views in the way that it did and it was then a mandatory requirement for the CPA to have made an application under s.41(4). In choosing not to do so, the CPA acted unlawfully. The NCA was clear. Every entity had to comply with the Act’s provisions. The natural consequence of the CPA breaching the terms of the NCA in respect of the application in the way that it did and thereby acting unlawfully was to render its subsequent decision in relation to the application a nullity. Its decision to grant planning permission to the interested party was hereby quashed (paras. 75–76).
(5) The NCA provided the NCC with an express power of delegation which included the powers under s.41(5). Regardless of the wording of the NCA, the CPA argued that it was a general principle of public law that where a public body had a decision-making power, it must exercise that power itself and could not approach its task in such a manner that resulted in it abdicating its decision-making function in favour of another body. The CPA argued that there was no express or implied authority to delegate the NCC’s discretion under s.41(5) of the NCA. The cases cited by the CPA and the interested party did not deal with situations in which there was a clear statutory authority to delegate functions and there had been purported express delegation of such functions. As such, they did not advance the position of the CPA or the interested party. In s.39(1)(e) there was aspecific right of appeal to Cabinet against a decision under s.41 and appeals were stated to be against the decision of the NCC. In that way, Cabinet retained its key role in overseeing the NCC and, in turn, the protection of the environment. To the extent that the delegation of the s.41 function included the exercise of discretion, the court was satisfied that the intention behind and effect of s.3(13) was to provide for the delegation of the exercise of that discretion to the Director and that decision was to be treated as one taken by the NCC itself. In view of the integral roles that the Director and the DoE had in the NCC, the court did not agree with the suggestion that the exercise of such discretion could not be delegated to the Director. The decision to exercise powers under s.41(5) requiring the imposition of conditions on a proposed action or a direction to an entity to refuse to agree to or refuse to proceed with proposed action could not sensibly be separated from the communication of those conditions or the directing of the entity. They were interwoven and any exercise of discretion must be capable of being delegated as part of the functions under s.41 (paras. 104–107).
(6) Section 3(13) of the NCA gave the NCC power to delegate its powers under s.41 and there was nothing in the NCA or the Public Authorities Act (2020 Revision) (if relevant) which prevented the NCC delegating such powers to the Director. If the PAA applied to the NCC, the effect of the PAA might well be that the Director, as well as any other civil servant, was unable to vote as a member of the board of the NCC, but there was nothing in the PAA, whether express or implied, that imposed any restriction on the power given to the NCC to delegate functions to the Director. Delegating functions to the Director was inconsistent with the PAA. The notice in the Cayman Islands Gazette was clear and unambiguous evidence of delegation (paras. 113–120).
(1) Andrade v. Frederick, 2021 (1) CILR 394, referred to.
(2) Anisminic Ltd. v. Foreign Compensation Commn., [1969] 2 A.C. 147; [1969] 1 All E.R. 208, referred to.
(3) Carltona Ltd. v. Works Commrs., [1943] 2 All E.R. 560, referred to.
(4) Communities & Local Govt. Secy. v. Bovale Ltd., [2009] EWCA Civ 171; [2009] 1 W.L.R. 2274; [2009] 3 All E.R. 340; [2009] C.P. Rep. 27, referred...
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