(CMR) Boggy Sands Club, on Boggy Sands Road in West Bay, has filed an appeal against an enforcement notice issued by the Director of Planning for the unauthorized use of land to conduct a commercial business in a Low-Density Residential (LDR) zone without the grant of planning permission.
The Central Planning Authority is expected to hear the appeal tomorrow, Wednesday, 3 April. Boggy Sands is seeking to have the enforcement notice quashed.
Boggy Sands Club has disputed that there is any business activity at the location, claiming that it is a private beach for the owners, guests, employees, and agents of Boggy Sands Club to swim, sunbathe, snorkel, and engage in other recreational activities associated with the use and enjoyment of Cayman beaches.
According to a letter from Boggy Sands attorney Waide DaCosta, the appeal is being filed on the grounds that the decision of the acting Director of Planning Ron Sanderson to issue an enforcement notice is erroneous and unlawful, unreasonable, and a breach of the principles of natural justice, as he failed to present the allegations and evidence of commercial activity to Boggy Sands so the proper response could be put forward.
According to the agenda for Wednesday's meeting, in July 2022, the Central Planning Authority received a complaint about the property being used for commercial purposes.
On 28 July 2022, a compliance officer visited the site and took photographs. As the Director of Planning recused himself on this matter, a discussion occurred with the Deputy Director, and he did not feel there was commercial activity, and no further action was taken.
In September 2022, a letter was received from the Attorneys (KSG) of neighboring landowners, which included several documents that, in the view of the Deputy Director, depicted the site being used for commercial purposes.
The Deputy Director then signed an enforcement notice for conducting commercial business in the low-density residential zone without planning permission. The notice was sent by registered mail on 14 September 2022.
On the same day, the Director received an email on behalf of the Boggy Sand Club explaining how the subject site was being used.
In November, the Deputy Director reconsidered the matter and determined that the subject site was not being used for commercial purposes and instructed the Compliance Officer to advise KSG accordingly.
The Compliance Officer emailed KSG advising that the Department has decided to close the enforcement case as it had not found any evidence of commercial activity being conducted on the property.
On 6 December 2022, KSG submitted another letter containing a copy of a license that, for a fee, allows the licensee to use the property's facilities for the use of sun loungers, water toys, equipment, and anything else supplied by the licensor.
In February 2023, KSG submitted a letter before action for Judicial Review for the Director of Planning's failure to issue an enforcement notice. The Deputy Director met with Crown Counsel to review the letter before action. Crown Counsel reviewed the available material and concluded that because money is changing hands via the license to occupy, the site is, in fact, being used for commercial purposes.
The Deputy Director wrote to KSG advising that he would be reconsidering the matter with a view to re-issue an enforcement notice. The Deputy Director then signed a new enforcement notice for conducting commercial business in the low-density residential zone without planning permission. The notice was sent by registered mail on Feb 26/23.
In March 2023, the owner of the subject parcel filed an appeal against the issuance of the enforcement notice. The Deputy Director then met with the representative of the Boggy Sands Club and their Attorney to discuss the background to the issuance of the enforcement notice.
A hearing was set for July 2023; however, Boggy Sands Club advised that they wish to have a special meeting of the CPA as they don’t feel the current members can be objective towards them. The Director then contacted the Ministry PAHI for their views on the appellant's request.
On 28 November 2023, the Director received an email from the Deputy Chief Officer for the Min PAHI stating that the Ministry finds no cogent reason why an alternative CPA should be appointed to hear the appeal.
It was then decided that the appeal would be heard on Wednesday, 3rd April 2024.
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