The Grand Court of the Cayman Islands on Tuesday will consider an injunction that has halted a controversial land reclamation project in South Sound in Grand Cayman since Friday.
R.C. Estates developer Rene Hislop maintains that no mangroves have been destroyed by the project, which effectively involves extending some 2,000 feet of current coastline some 50 feet into the sea, and building a 9-foot-high sea wall. The reclaimed land is an area formerly covered by mangroves that were killed during Hurricane
Ivan in 2004.
“When people say we are dumping on top of mangroves, that is not the truth,” he said.
The Protect South Sound group of objectors, who obtained the temporary injunction Thursday evening, wants to stop the project until the Planning Appeals Tribunal can consider their contention that the Central Planning Authority erred when it approved the project in mid-August. The relevant legal question is whether a property’s coastal boundary changes along with natural erosion or accretion (as the objectors argue), or whether, once the boundary is fixed by a survey, the owner maintains control over the property even if it becomes inundated by the sea (as Mr. Hislop argues).
Justice Charles Quin is scheduled to consider the injunction Tuesday morning in chambers, meaning the deliberations are not open to the public.
Katrina Jurn of Protect South Sound filed a notice of appeal 11 September to bring the matter before the tribunal. Ms Jurn has also appealed Mr. Hislop’s Emerald Sound subdivision, which is located across South Sound Road. While developers generally choose to hold off on their projects while appeals are pending, there is no uniform legal mandate for them to do so. Mr. Hislop said he’s not waiting for the Planning Appeals Tribunal because he believes he has a minimal risk of potential liability.
He said, “I’ve taken legal advice. I’m not doing anything wrong. I’m doing everything by the law. I’m not saying ‘sorry’. I said ‘please’ and I got approval.”
During its 15 August meeting, the authority accepted the argument made by the developer’s attorney J. Samuel Jackson, who said, “There are two types of boundaries, general and fixed. A fixed boundary is for perpetuity in the Land Law. It is clear, if the seaward boundary has a fixed boundary, then it is fixed.”
Real estate broker Alister Ayres, who was chief surveyor at the Lands and Survey Department from 1992 to 2001, said the terms “general” and “fixed” boundaries refer to the quality and standard of the survey being done, not to specific types of boundaries.
He said he was “absolutely amazed” and “astounded” to hear that the authority had accepted the argument that the seaward boundary, determined by the mean high water mark, can be static.
“It is completely incorrect. Nobody it seems had the sense or thought to consult a Lands and Survey surveyor,” he said.
Mr. Ayres said it is universally accepted among surveying professionals that coastal boundaries are ambulatory and travel with weather and nature. He said in this instance, the seaward edge was properly set at the edge of the mangroves, then the boundary would recede when the mangroves disappeared, and would not extend out again until the mangroves grow back.
James Kennedy, an attorney at Samson and McGrath, agreed with Mr. Ayres after reading the law.
“It looks like it is floating and subject to the whims of nature,” he said.
Mr. Hislop said he’s following the lead of nearby property owner Gencorp Equitable Natwest Corp. Ltd., who gained after-the-fact permission from the authority in March 2012 to reclaim land lost to Ivan.
Department of Environment Director Gena Ebanks-Petrie said the project will adversely affect sea grass and mangroves in the South Sound Replenishment Zone, and pointed out that the area was the site of a mangrove restoration project funded in part by a grant from the United States Fish and Wildlife Service.
She was concerned that if the US authorities determine the conditions of the grant were not upheld, then the Cayman Islands government may have to return some of the funding or that it will jeopardise future grant applications for environmental projects.
In 2006, US Fish and Wildlife gave the department US$58,000 to plant young mangroves, accompanied by nearly US$170,000 from other sources. Partners in the project included the Reef Ball Foundation, Cayman Islands Yacht Club and local donors. Mr. Hislop was well aware of the mangrove restoration project, through which he said he paid CI$75,000 for some 300 young mangroves to plant on the property in hopes of the mangrove buffer growing back. On Friday, Mr. Hislop took a reporter to visit the site. In support of his claims, there is no visible evidence that any mangroves have been harmed by the land reclamation that has taken place all week. The new extended shoreline stops short of mangroves in the water, including curving back inward to make space for a small patch of more mature trees. Mr. Hislop said some young potted mangroves were simply picked up and moved outside the bounds of the project.
Mr. Hislop said in consideration of the South Sound marine environment, he elected to use pre-sifted fill consisting entirely of larger rocks to minimise the amount of silt that could escape into the sound. Additionally, he is using a silt screen, even though that was not a requirement stipulated by the planning authority.
With or without the addition of reclaimed land, he said the property will be developed. Mr. Hislop, who lives in South Sound, said he’s trying to be a good neighbour by maximising the potential of those plots, which are earmarked for luxury houses.
“I’m being targeted unfairly. That land is going to be developed. It won’t stay like it is. I have done nothing wrong. I’ve played by the book on everything,” he said.