“Given his decision to recommend the grant of the permit, one can only infer that the Minister believed the DoE's views and Planning's concerns should be accorded no weight and that the objections of the Strata and other private objectors should be ignored.”
(CMR) The Salt Creek strata won a judicial review against the Cayman Islands government and businessman Marcus Cumber over a 2018 coastal works permit grant for the construction of a 128′ private residential dock and cabana on Crown land adjacent to the upscale Vista del Mar development. The proposed dock was more than 2000% in excess of the six-foot maximum allowed by law.
Grand Court Judge Ramsay-Hale rendered her decision earlier this month after hearing the matter in open court via Zoom on October 14, 2020.
The decision was made in Cabinet on December 11, 2018 after former Minister Dwayne Seymour supported the application and submitted the Cabinet paper. The approval was given to allow the dock for Cumber's private use despite objections from the Salt Creek strata, the Department of Environment (DoE) and the Department of Planning.
When the writ was filed for the judicial review application it was noted that the minister also neglected to disclose that he is a business associate of Cumber.
The judicial review claimed that the decision was both irrational and illegal. Firstly they submitted that it ignored the reasons given by the objectors as well as went against the government's own published policy that “docks constructed along a canal may not extend more than 6′ into the canal.'
Oddly, Cabinet appears to have approved the application using the working “per the reasons outlined” which did not support the granting of the application. The strata argued that the granting of the permit on these grounds is irrational as the Cabinet Paper gave no rations bases for the recommended grant.
“Cabinet was under no obligation to take the least environmentally damaging option but I also accept that it was irrational for Cabinet to pick the more environmentally damaging option in the face of position from its own DoE, without any positive reasons for so doing.”
They also argued that the decision is illegal because it was contrary to sections 14 and 26 (10) of the Pubic Land Act (2017) because it allowed the construction of a private dock and cabana over public lands in particular foreshore and territorial waters obstructing or interfering with the public's right of access to such lands under the Act.
The Salt Creek waterway is a natural, Crown-owned inlet that had been dredged to allow navigation by medium to large-sized vessels and connects with a number of privately owned canals. Cumber's property in Vista del Mar is adjacent to the Salt Creek waterway and he sought to have this dock build to moor his own private boat.
A brief history of the application is that it was denied in 2014. However, around March 2018 he applied again with modifications to the application which included a 1,787 square foot L-shaped dock that would extend into after deep enough so dredging would not be required. This was still objected the strata who argued that it would reduce the usable width of the Salt Creek canal by about 1/3. They also objected on safety grounds noted that it created a navigational hazard as smaller vessels would have to go into deeper waters. A further point was that it would require nighttime lighting which could be an additional hazard for vessels and/or disrupt protected species.
“In my judgment, the recommendation that the permit be granted, despite the objections raised against it, robbed the Cabinet Paper, and the decision of Cabinet made on the basis of it, of all logic.”
They also noted that it would impact the view of property owners to the southwest of Cumber's property and adversely impact the natural environment change the overall character of the area and setting an “unwelcomed precedent.” They also argued that when he purchased the proper he was aware of the limitations and alternatively could use a separate dedicated deep water marina to moor his boat in the Vista del Mar Marina.
Cumber's representatives revised the coastal works application which was given to CIG on July 10 2018. This revision included that the dock to be supported by either 10-inch concrete reinforced PVC piles or 12-inch diameter timber piles drilled approximately 10 feet into the seabed. There were other proposed changes as well.
The request to be heard by the strata before rendering a decision was ignored by Cabinet.
The Ministry for Health, Environment, Culture & Housing sought comments on the application from the National Conservation Council, Department of Lands and Survey, the Port Authority and Planning. Doe objected on the basis that the environmental impact was substantial and the dredging works would involve the removal of “a significant area of seagrass beds”.
Planning's major objection was the length of the 128′ dock which would set a dangerous precedent with “a risk of proliferation of similar applications”. They also noted that it posed a potent hazard to the boating public.
The judge found that the decision was illogical because it ignored all the recommendations against the application and gave no reason for doing so. However, she did find that the Cabinet was not in breach of its own policy as it relates to the length and dismissed that part of the application. The argument that Cabinet could not grant Cumber access to Crown land or allow lawful interference was also dismissed.
The decision was therefore quashed and sent back to Cabinet for further consideration. The government was instructed to pay the strata's costs of the application.