NEWS & INFORMATION

DoE Comment on Cayman Compass CPA Morritt’s Article

In light of the recent Compass article regarding the Central Planning Authority’s (CPA) environmental consultation process in relation to the Morritt’s application, the Department of Environment (DoE) and National Conservation Council (NCC) feel compelled to clarify that since July 2023 the CPA have been fully aware of the DoE/NCC’s simple, directed conditions of approval required to mitigate the potential adverse effects to the adjacent Marine Protected Area.

The DoE/NCC’s July 2023 review provided the CPA with all of the necessary information required for them to determine the application in a timely manner. This included combined non-binding recommendations under section 7 of the Development & Planning Act (DPA) and section 41(3) of the National Conservation Act (NCA), and binding directed conditions under NCA section 41(4).

We do not agree that the CPA were required by the NCA to adjourn the matter twice, in September and November 2023. Then on December 1st, the CPA referred the matter back to the NCC for a section 41(3) review instead of seeking the 41(4) approval as required. The necessary section 41(4) request for approval has only now been received in January of this year.

The National Conservation Act requires any government entity, such as the CPA, considering a decision which may affect the environment in particular ways, to conduct a section 41(3) and/or as appropriate a section 41(4) consultation (depending on the situation). The effect of the recent Appeal judgement is that it is open to the CPA, on being informed of the DoE/NCC’s views regarding likely adverse effects on a protected area, to consider whether an application would indeed be likely to cause an adverse effect on the environment, and if they agree to refer the matter to the NCC for approval. The judgement also points out that in matters relating to whether adverse effects on a protected area are likely to arise or whether conditions of approval would be able to mitigate those effects, it is the NCC/DoE which would be considered the “authority” on these matters, so if the CPA chooses to disagree they must provide compelling and cogent reasons why they have arrived at their decision.

The NCA also requires all entities, such as the CPA, to utilise the Guidance Notes on the Section 41 consultation process, which the NCA requires the NCC to issue. These Guidance Notes have been gazetted and in use, including by the Planning authorities, since 2016 and provide 3 “triggers” for Section 41 consultations with the NCC: (i) Location triggers (adjacent to a protected area, within 500’ of the coast, etc.), (ii) type of development triggers (airports, ports, marinas, hotels, etc.) and (iii) strategic triggers such as national plans and policies. The Court of Appeal has ruled that the Guidance Notes “do not enlarge the circumstances under which entities are required to consult” but that they “merely identify those circumstances which will trigger the duty to consult.” Entities who take action in full accordance with the Guidance Notes are deemed to be in full compliance with the Act and those who disregard them are acting unlawfully and open themselves up to legal challenges. The Guidance Notes were updated in November last year to clarify that the s41(3) and s41(4) reviews are separate.

Unfortunately, instead of utilising the Guidance Notes to assist with determining when consultation with the DoE/NCC is required and tweaking the previously utilized consultation process to comply with the ruling, it would appear that the CPA are inventing a multi-round process involving separate consultations under s7 of the DPA, then s41(3) of the NCA, and then another separate consultation under s41(4) to address adverse effects to Protected Areas and Critical Habitats.

Subsequent to the Court of Appeal ruling in 2023 the DoE/NCC met with representatives of the CPA to discuss the consultation process as a result of the Court of Appeal ruling and it was agreed that they would combine both s7 of the DPA and NCA s41(3) in a single review, but the CPA appears to have moved on from this position. The DoE/NCC are strongly of the view that consultation under s7 of the DPA and s41(3) of the NCA achieve the same objective of identifying relevant environmental concerns which should be considered when decisions are made to approve development applications. Separating them is an artificial distinction that introduces an unnecessary, time consuming step in the consultation process. Indeed the Guidance Notes make it open to the CPA to move straight to a request for approval where the Guidance Notes trigger a 41(4) consultation due to the likelihood of adverse effects on a Protected Area.

Given that the DoE/NCC routinely complies with the agreed three week consultation timeframe for environmentally straightforward planning consultations such as the Morritt’s one, we can only surmise that the delay currently being experienced by applicants is a result of these redundant CPA processes and other CPA backlogs unrelated to the NCA or NCC.

Photo: Morritts.com

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