The Central Planning Authority Appellant v The National Conservation Council Respondent and Cayman Property Investments Ltd Interested Party
| Jurisdiction | Cayman Islands |
| Judge | Sir Alan Moses,Sir Michael Birt,Sir Richard Field |
| Judgment Date | 01 September 2023 |
| Court | Court of Appeal (Cayman Islands) |
| Year | 2023 |
| Docket Number | CICA (Civil) Appeal No. 022 and 025 of 2022 |
and
The Hon Sir Richard Field, Justice of Appeal
The Rt Hon Sir Alan Moses, Justice of Appeal
The Hon Sir Michael Birt, Justice of Appeal
CICA (Civil) Appeal No. 022 and 025 of 2022
(Formerly Cause No. G0207 of 2021)
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
ON APPEAL FROM THE GRAND COURT OF THE CAYMAN ISLANDS
Sir Jeffrey Jowell KC and Mr Tom Cleaver, instructed by Mr. J.
Samuel Jackson and Ms Selina Tibbetts of Jackson Law for the Appellant
Mr Chris Buttler KC instructed by Ms Kate McClymont of Nelsons Legal for the Respondent
Mr Tom Lowe KC instructed by Mr Michael Alberga of Travers Thorp Alberga for the Interested Party
The Rt Hon Sir Alan Moses
This appeal is concerned with the relationship between the duties of the National Conservation Council (“the NCC”) in relation to protection of the environment under the National Conservation Act 2013 (“the NCA”) and the responsibilities of the Central Planning Authority (“the CPA”) in relation to the determination of applications for planning permission under the Development and Planning Act (2021 Revision) (“the DPA”). That relationship and the way the NCC's statutory responsibilities are to be integrated with the CPA's planning decisions are contained in section 41 of the NCA.
The issue has arisen out of the application for planning permission by Cayman Property Investments Ltd (“the Interested Party”) for the reconstruction of a cabana and sea-wall at the northern end of Boggy Sands Road. No-one has seriously disputed that that work posed a risk to the environment, though its nature and degree were contentious. But the CPA granted planning permission on the basis that the conditions it imposed would alleviate or eliminate that risk. The NCC challenged the legality of that decision by way of judicial review before The Hon Mr. Justice Walters (Actg.). It contended that under the statutory scheme of the NCA, the CPA was required to obtain the approval of the NCC before the CPA granted planning permission and that it was for the NCC, not the CPA, to reach a final decision as to whether the proposed conditions were adequate to eliminate the risk.
The history of the planning application shows how the issue in this appeal has arisen. In 2009 planning approval was granted for a cabana and sea-wall. They were constructed in accordance with that permission. Concerns were expressed at the time (see CPA Agenda for meeting 29 April 2009) at the ineffectiveness of the sea-wall to prevent erosion and on its effect on the coastal environment. The site is adjacent to the Seven Mile Beach Marine Park, a Marine Protected Area under the NCA.
According to the Director of the Department of Environment (“the Director”), the site had a history of erosion, under what is described as ‘normal circumstances’ and the beach in that location had not existed for at least five years. This the Director attributes to the construction of hard structures such as the sea-wall on an “active beach”.
When the sea-wall began to fail and lose structural integrity, the Interested Party made an application for planning permission dated 3 December 2020 to replace the existing cabana with a three-storey habitable cabana and to undertake rehabilitation works on the sea-wall. At an earlier pre-planning permission meeting the Department of Environment had suggested that if the seawall was to be reconstructed it should include a curved seawall.
On 16 April, 2021 the Director sent a memorandum to the CPA. She noted that the applicant had not modified its proposals and reached the conclusion that although the proposed works might extend the longevity of what she described as “this ill-placed structure” the force of the sea and environmental changes would increase the vulnerability of the site. She “respectfully” directed refusal of the planning application on the grounds that the proposed development would result in the detrimental alteration of a Marine Protected Area and the environment generally (including the turtle nesting habitat). It is of importance to note that the Director purported to give that direction under section 41(5) of the NCA, an exercise of power which it is now accepted was not open to the NCC at that stage.
By its decision dated 6 May 2021 the CPA refused this first application. It did not refer to the memorandum or to the grounds on which the Director had relied. The CPA took the view that the proposed development failed to comply with regulations relating to the distance any development should be set back from the sea.
The Interested Party therefore decided on a modified approach in a second application. It is this application which is the subject of the appeal. By its second application the Interested Party sought planning permission for removal of the existing cabana and a new one storey cabana and a new sea-wall. On 10 June 2021, the CPA provided the Department of Environment with a copy of that second application. The Director again concluded that the proposed development would have an adverse effect on the adjacent Marine Protected Area. Her memorandum dated 1 July 2021 stated that there were “absolutely no mitigating circumstances which could justify a departure from the legally prescribed setbacks in this location and, in our view it would be negligent to permit development on this site.” The memorandum set out in some detail concerns as to the impact of sedimentation and turbidity on the marine environment and Marine Protected Area. It noted that sedimentation was one of the biggest potential sources of reef degradation. The Director purported to be acting on behalf of the NCC pursuant to a delegation under section 3(13) of the NCA. The memorandum concluded that it was “futile to try to permit further development on this problematic site” and directed the CPA to refuse planning permission pursuant to section 41(5) of the NCA. Again, it is accepted that that direction was not open to the NCC at that stage.
On 1 st September 2021, the CPA considered this second application and granted planning permission subject to a number of conditions. On this occasion, the CPA did focus attention on the NCC's purported direction and took the view that it was unlawful. It resolved that planning permission should be granted subject to a number of conditions requiring, amongst other things, that a new sea-wall be constructed on the landward side of the existing sea-wall and that the existing deteriorating sea-wall should not be removed until the new wall had been completely constructed. The conditions further required that a silt screen should be installed fully enclosing the work area and that stockpiled materials should be kept away from the sea edge.
Just as it had done in relation to the first planning application which it had previously refused, the CPA referred to the Development and Planning Regulations (2021 Revision) requiring a minimum setback from the high water mark but on this occasion took the view that a lesser setback should be allowed. It set out its reasons for granting permission; they included a record of its view that the direction it had received from the NCC in the memorandum dated 1 July 2021 was unlawful.
I should emphasise, at this stage that this appeal does not turn on the rival views as to the planning merits of what was proposed. On the contrary, it turns on whether the CPA could lawfully grant planning permission, having regard to the legislative scheme under the NCA.
The NCC judicially reviewed the CPA's decision to grant planning permission. By a judgment dated 23 August 2022, Walters J quashed the CPA's decision. But he did so on grounds that neither side nor the Interested Party seek to uphold. In those circumstances, the NCC seeks to uphold the Judge's decision to quash the grant of planning permission on other grounds. The Judge decided the case on a ground that none of the parties had argued. It is easier to identify the point on which the Judge, in part, based his decision once the relevant legislative provisions have been analysed. At the heart of this appeal, lies the proper construction of section 41 of the NCA.
The relevant provisions are set out in Annex 1. Although two of the central issues in this appeal turn on section 41, it is also relevant to record the creation and function of the NCC by the NCA.
Section 18 of the Cayman Islands Constitution Order 2009 enshrines the protection of the environment, including limiting pollution and securing ecologically sustainable development, within the Constitution of the Islands. The NCC was established by section 3 (1) of the NCA. Section 3 (9) identifies its functions, which include “promoting the biological diversity and the conservation and sustainable use of natural resources in the Islands” (section 3(9)(b)) and “recommending and maintaining protected areas” (section 3 (9)(c)).
Section 7 of the NCA confers power on the Cabinet, after consultation with the NCC, to designate any area of Cayman waters as a protected area. The National Conservation (Marine Parks) Regulations 2021 designate the Seven Mile Beach Marine Reserve Zone as a protected area. The NCC took the view that this protected area was at risk as a result of the proposed development works.
The CPA was established by section 3 of the Development and Planning Act (now 2021 Revision). By section 5(1) the CPA is under a duty to “secure consistency and continuity in the framing and execution of a comprehensive policy approved by the Cabinet with respect to the use and development of the land in the Islands”. The current policy is contained in the Development Plan 1997 (see Part II of the DPA). Under Part III of the DPA,...
To continue reading
Request your trial