PLANNING CONSENT & ENVIRONMENTAL IMPACT ASSESSMENTS
ENVIRONMENTAL CONCERNS TRUMPS PLANNING CONSENT GRANTS?
The relatively simple process of making application for planning consent as provided for in the Development & Planning Law (2017) has been made considerably more complicated by the introduction of Part 7 of the National Conservation Law 2013 and which enforces the requirement that the Central Planning Authority (CPA) consider the recommendations of the National Conservation Council (NCC) regarding the proposed development’s potential impact on the environment both local and Island-wide when granting planning consent (or otherwise) for a qualifying development proposal.
Not all applications for planning consent require an Environmental Impact Assessment to be carried out, but applicants need to be aware of the processes involved and the extent to which the planning consent grant process has been prescribed by the Council’s own requirements for assessing the impact on the environment by any such development if so determined as requiring an Environmental Statement.
CONTEXT: PLANNING & DEVELOPMENT LAW 2017
The CPA considers applications for planning permission and grants, denies or defers such planning permission as provided for under the terms of the Development & Planning Law 2017. There is virtually no legal constraint on the grant or otherwise of any planning permission as contemplated under the Law other than those imposed by the Law’s attendant Regulations which cover zoning, development density and height, occupation and use constraints and other directives.
The single most important exception to the otherwise unfettered right of the CPA in the granting or otherwise of planning consents, is the National Conservation Law 2013 which requires that the CPA (an ‘entity’ defined as such under that Law) obtain an opinion of the NCC (also an ‘entity’) regarding the impact (if any) of any development on the environment of the Cayman Islands as defined in the Law before granting that development application a planning consent.
This additional requirement for an entity such as the CPA to have complied with the provisions of the National Conservation Law before granting any such planning consent, will inevitably result in the overall application and grant process, being extended by a considerable margin.
The Law provides for the issue of various ‘Directives’ under which the process of identifying the need for and the process whereby such Council opinion is sought and given, is regulated. The first of these is the NCC Directive for Environmental Impact Assessments (WP-05 2016-05-18 Council Directives for Environmental Impact Assessments) and which sets out the requirements and process for obtaining the Council opinion on the development’s potential impact on the environment by the preparation, at applicant’s cost, of an Environmental Statement to be considered by the CPA prior to granting or otherwise, planning consent.
An application for planning consent must now be regarded as a more extensive process which largely falls outside of the narrow remit of the CPA to consult with its own Planning Department, the Departments of Environment and Environmental Health, the Water Authority and the National Roads Authority on planning and infrastructural matters that may affect the Authority’s decision.
Before an application for planning consent for a project or development can be considered by the Authority, the applicant’s Environmental Statement must be reviewed and considered. It is legally not necessary for the Authority to adopt the Council’s opinion as set out in the Statement- merely to have considered it. If however, the development for which application has been made for planning consent may have an adverse effect, whether directly or indirectly, on a protected area or on the critical habitat of a protected species (both as defined under the National Conservation Law) then the Authority is bound by and subject to an approval by the Council when granting planning permission.
The process of obtaining planning consent for a development proposal to proceed to mobilisation has been complicated by the requirement under the National Conservation Law for the CPA to consider environmental impacts when making any such planning consent grant. In addition to the requirement that the Authority take into consideration these impacts, the process of procuring the necessary analysis and the required consultations with stakeholders as part of this process can add substantially more time and cost to the process of mobilising the intended development project.
PROCESS: PLANNING CONSENT APPLICATION
All applications for planning consent for projects or developments specified in Schedule 1 WP-05 2016-05-18 (Council Directives for Environmental Impact Assessments) will be referred to the NCC for review and screening in order to determine whether such application requires an Environmental Statement and review by NCC for CPA’s consideration as required under the National Conservation Law.
An applicant may wish to request a Screening Opinion from the NCC prior to making an application for planning consent, and NCC can give an opinion at this stage as to the requirement for an EIA or not. It is generally accepted that this opinion is upheld by NCC when a formal application is referred to them for determination of the requirement for an Environmental Statement (or otherwise).
PLANNING CONSENT APPLICATION PROCESS:
ENVIRONMENTAL STATEMENT NOT REQUIRED
In the event that a Screening Opinion determines that an Environmental Statement is not required, the application for planning consent may proceed without formal referral to the NCC.
The approximate time scale for this process is no less than 15 weeks (101 days).
PLANNING CONSENT APPLICATION PROCESS:
ENVIRONMENTAL STATEMENT REQUIRED
The approximate time scale for the application process where an Environmental Statement is required in support of the application, is no less than 33 weeks (233 days).
There are three distinct components to the process of compiling the Environmental Statement required for consideration by the CPA in granting planning permission once it has been confirmed by screening that an Environmental Impact Assessment is required in terms of the Law. They are all subject in varying degrees to either liaison with the NCC or its agents, or directly with stakeholders and the public-
1 Environmental Impact Assessment Scope Determination
This phase can take up to 84 days.
The development proponent (applicant) in this phase makes application to the Council for confirmation of the scope of the EIA as required and also puts up the names of suitable EIA consultants to be tasked with deriving its Terms of Reference, carrying out the EIA itself, and deriving and drafting the resulting Environmental Statement as defined in the Law. The Council selects the preferred consultant. Note that the conduct of the EIA and the drafting of the ES are at the development proponent’s cost. The ToRs as drafted are subject Council approval and to public consultation and review.
2 Drafting of Environmental Statement
This phase can take up to 65 days (but may be considerably extended by the amount of field and desk investigatory analysis etc)
Once all preparatory work and field investigations have been carried out, the ES is drafted for Council approval in draft form- possibly in stages as determined by Council. These drafts are also subject to public consultation and review.
3 Environmental Statement & Recommendations to Authority
This phase can take up to 35 days
The final ES is issued to the NCC for their consideration and approval. Council prepares a series of recommendations arising out of the conclusions of the ES and issues the CPA the ES and their accompanying recommendations for the Authority’s consideration in terms of the Law.
REFERRAL FOR PUBLIC COMMENT
The process of obtaining planning consent as provided for in the Development & Planning Law (and Regulations) involves a demonstration to the CPA that the intended development proposal meets the criteria for grant of consent. There is a mandatory public referral for comment- specifically objections although positive commendations are encouraged- but which except for change-of-use applications which requires public advertisement, is limited usually to parcel and strata lot proprietors within a defined specific radius from the subject parcel but usually no more than 500 ft. Those persons eligible to object may also appeal the Authority’s decision.
The EIA process requires two referrals to public opinion and comment and such referrals are not constrained to specific interested parties defined by proximity or even commonality of interest, but an Islands-wide consultation. These referrals to public opinion occur at the stage of draft Terms of Reference for the EIA and the draft Environmental Statement.
The process for planning consent grant in terms of the Development & Planning Law can run concurrently with the EIA process. The CPA cannot however make their planning consent grant until the Council’s ES and recommendations have been lodged with them for their consideration but the Planning Department in preparing the application for consideration by the Authority, may refer the application to other agencies for their comments such as the National Roads Authority, the Department of Environmental Health and the Water Authority prior to putting the application on an agenda for hearing and may also process the outcome of the mandatory adjoining proprietor notification process conducted by the applicant as provided for in the Regulation. This overlap is not insignificant, but can only occur later in the application process as most of the critical work in support of the application is carried out as part of the EIA process mandated by the Council.
APPEALING A PLANNING DECISION
The NCC has no standing as an objector or appellant under normal circumstances and cannot itself lodge an appeal against a planning consent grant that apparently flies in the face of their recommendations, except possibly in the event that the planning application was required under Regulations to have notified the public by means of an advertisement in the local media.
If an application is found by the Council to be on land which is part of a protected area or the critical habitat of a protected species as defined under Law, the outcome of the EIA and its derivative ES will form the basis of Council’s recommendations to the Authority and which are required under Law to be included in the terms and conditions of such planning consent. The Council may in extreme cases, direct the Authority not to grant planning consent if in its opinion the development’s environmental impact is unacceptable.
The options open to challenge by appeal under the Development & Planning Law either the imposition of onerous conditions to planning consent or to the outright refusal by Council to authorise the Authority to grant planning consent, may be constrained as the Council’s decision in this specific regard may only be appealed to Cabinet under the provision of Section 39 of the National Conservation Law (2013). There is opinion however, that in this event, grounds for appeal may still reside under Development & Planning Law if a planning consent application is denied by the Authority on grounds of unreasonableness as provided for under Section 48, Development & Planning Law 2015 (amended 2016).