The Court confirms the powers of the NCC in the Boggy Sand case
(CNS): The National Conservation Council has the power to direct government agencies when their actions could adversely affect protected areas or species, the Grand Court ruled in the long-awaited ‘Boggy Sand’ judicial review decision. which was released on Tuesday. The judge also concluded that the NCC can delegate this power to the director of the Ministry of the Environment as an expert and part of the council, settling a significant dispute between two government entities.
The case concerned a controversial decision by the Central Planning Authority of ignore a DoE directivemade with the authorization of the NCC, not to grant a building permit for a project in West Bay which posed a significant threat to the environment. But the legal battle was really about the position taken by the APC that it was not related per DoE guidelines.
This 51-page decision settles this dispute in favor of the environment and ensures that one of the most fundamental purposes of the National Conservation Act can be achieved by legally preventing development that poses a threat to the marine and terrestrial environments. which cannot be mitigated.
Judge Alistair Walters found that in this case the CPA acted unlawfully when it approved the application to rebuild a shack and seawall on Boggy Sand Road in West Bay, and therefore the court ruled now rescinded this scheduling approval.
Prime Minister and Minister for Sustainability and Climate Resilience Wayne Panton, who was the architect of the Conservation Act when he served in the PPM-led cabinet from 2013 to 2017, said the decision clarifies the important role the NCC plays in safeguarding protected areas and species in the Cayman Islands.
“Not only does this decision confirm the legal relationship between the National Conservation Council and the Central Planning Authority, it also clarifies the implications for all other government entities, giving all parties more certainty and clarity in the process. “future. I want to thank the courts for their consideration of these important legal issues,” he said.
“As the decision notes, the National Conservation Act is a bespoke piece of legislation, developed specifically to protect our invaluable and unique marine and terrestrial habitats and species in Cayman. A viable and functioning natural environment is fundamental to a resilient economy and healthy communities,” Panton added.
The NCC filed for judicial review in 2021, shortly after the CPA approved Boggy Sand’s application. This was despite the negative impacts it was likely to have on the Seven Mile Beach Marine Reserve and the significant concerns the DoE had made clear in its submissions to PCA on behalf of the NCC, directing the council to refuse the building permit.
NCC Chairman McFarlane Conolly said the board was pleased with the court’s decision, noting his team’s efforts to resolve the disagreement.
“This ruling sheds light on a fundamental difference in interpretation of the National Conservation Act between the NCC and the PCA, which we repeatedly attempted to resolve before the NCC went to court as a last resort,” did he declare. “The decision confirms that the council acted lawfully in
his delegation of authority to the Director of the Department of Environment, and that we acted in accordance with our legal mandate under the National Conservation Act,” he said.
DoE Director Gina Ebanks-Petrie noted the wider implications of the court’s decision, saying it would “ensure that environmental concerns are considered in the decision-making processes of the Cayman Islands government, particularly when actions may or are likely to have an adverse effect on a protected area or critical habitat of a protected species”.
The case was the first in Cayman where two departments had clashed and Department of Sustainable Development official Jennifer Ahearn confirmed the decision to take the case to court was not taken lightly.
“We believe that this decision brings us closer to our constitutional mandate to ensure that the Government of the Cayman Islands gives due consideration, in all its decisions, to the need to foster and protect an environment beneficial to the health and well-being of people. present populations and future generations,” she said.
Ahearn added that everyone involved now looked forward to the CPA and other entities working more collaboratively with the NCC in their thinking.
This is not the only occasion where the authority of the DoE and NCC over planning decisions has been challenged. In at least one instance where the CPA has denied planning permission based on a DoE directive, the plaintiffs used litigation as grounds for appeal to the Planning Appeal Tribunal.
Following news of the decision, there was no immediate comment from CPA President Ian Pairaudeau or Planning Minister Jay Ebanks.
See the court’s full decision in the CDS Library.