Grand Cayman – In a decision released 23 August 2022, the Grand Court of the Cayman Islands confirmed that the National Conservation Act (2013) provides the National Conservation Council (NCC) with the ability to direct government bodies in circumstances where actions could have an adverse effect on protected areas or species.
As a result, the Court concluded that the Central Planning Authority (CPA) acted unlawfully when it approved an application to rebuild a cabana and seawall at Block 5B parcel 162 on Boggy Sand Road in West Bay. The Court has quashed this Planning approval, which was given contrary to direction from the NCC.
The 51-page decision confirms the NCC has the authority to direct any entity of the government – including ministries, departments, portfolios, statutory authorities, etc. – when 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, where the adverse impact cannot be satisfactorily mitigated by conditions. In all other circumstances, the originating entity retains its decision-making authority.
The ruling also confirms the National Conservation Act provides the NCC with an express power of delegation, and that it is lawful for the NCC to delegate such powers to the Director of the Department of Environment (DoE) including the NCC’s powers under section 41(5). These powers relate to the ability of the NCC to instruct an entity (including the CPA) to refuse any action that may give rise to an adverse effect on a protected area or the critical habitat of a protected species if the adverse effects cannot be mitigated by conditions of approval as specified by the DoE on behalf of the NCC.
Premier and Minister for Sustainability & Climate Resiliency, Hon. G. Wayne Panton, JP, MP, said the Grand Court’s 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 greater certainty and clarity going forward. I would like to thank the Courts for their consideration of these important legal questions,” he said. “As the ruling notes, the National Conservation Act is a bespoke piece of legislation, developed specifically to protect our invaluable, uniquely Caymanian marine and terrestrial habitats and species. A viable, functioning natural environment is foundational to a resilient economy and healthy communities.”
The NCC sought the Court’s consideration in 2021 after the CPA approved an application to rebuild a seawall and cabana on Boggy Sand Road in West Bay, counter to an NCC direction not to approve the project due to the potential for negative impacts on the surrounding marine protected area, namely the Seven Mile Beach Marine Reserve.
NCC Chairman McFarlane Conolly said the Council was pleased with the Court’s ruling.
“This decision provides clarification on a fundamental difference of interpretation of the National Conservation Act between the NCC and CPA which we tried many times to resolve before the NCC applied to the Court as a final recourse. The decision confirms the Council acted lawfully in its delegation of powers to the Director of the Department of Environment, and that we have acted in accordance with our legal mandate under the National Conservation Act,” he said.
Ministry of Sustainability & Climate Resiliency Chief Officer Jennifer Ahearn confirmed the decision to take the matter to the Grand Court was not taken lightly.
“We believe this ruling brings us closer to our constitutional mandate of ensuring the Cayman Islands Government shall, in all its decisions, have due regard to the need to foster and protect an environment that is beneficial to the health and well-being of present and future generations. We look forward to the CPA and other entities continuing to work more collaboratively with the NCC in their considerations,” she said.
Department of Environment Director Gina Ebanks-Petrie said the DoE welcomed the Court’s decision.
“This decision will ensure environmental concerns are factored into decision-making processes across the Cayman Islands Government, particularly where actions may or are likely to have an adverse effect on a protected area or protected species critical habitat,” she said.
A copy of the full decision may be accessed online here: conservation.ky/jr-23aug22/
The NCC was established through Section 3 of the National Conservation Act (2013). Its membership includes representatives from the Departments of Environment, Planning, and Agriculture, plus a voting member representing the National Trust for the Cayman Islands; and eight voting members appointed by the Cabinet.
To learn more, please visit: www.conservation.ky
The CPA is responsible for overseeing and reviewing the physical development of Grand Cayman. Based on reviews and recommendations provided by the Department of Planning and other Government Agencies, the CPA decides whether to support or not support an application for development and dictates any conditions of approval if applicable. The enabling legislation for the formation and function of the CPA is the Development and Planning Law and Regulations (2017 Revision).
To learn more, please visit: www.planning.ky/cpa
Ministry of Sustainability & Climate Resiliency