In a judgment delivered by the Court of Appeal today, March 31, 2023, it was determined that an appeal would be allowed to a limited extent in favour of Crosby Ebanks, Wilson Mendoza, and Mario Gomez in a complex matter surrounding the transformation of Lissa Lane into a 24-foot-wide public road in West Bay.
To explain why the Court of Appeal allowed the appeal to a limited extent, it is essential to understand what the Bill of Rights, contained in the Cayman Constitution, says about the peaceful enjoyment of property.
It is also crucial to understand the process that must be followed when the National Roads Authority declares an intention in the public’s interest that a road will become a public road.
Cayman constitution and process
First, the Cayman Constitution says that the “Government shall not interfere in the peaceful enjoyment of any person’s property and shall not compulsorily take possession of any person’s property, or compulsorily acquire an interest in or right over any person’s property of any description, except in accordance with law.”
Regarding taking possession of a person’s property, the Court of Appeal described this process, which includes enabling landowners or others to comment on and object.
The process was set out in an affidavit by Charles Brown, former senior policy officer with the Ministry of Planning.
The Court of Appeal said:
Mr Brown describes the procedure adopted following a decision to propose a new road.
Landowners are contacted in citing with the proposal attached and asked to provide comments whether of objection or support; where there are significant concerns or objections a meeting is “typically” held to see if those concerns may be resolved; a Cabinet paper is drafted which includes the landowners’ views and which makes a recommendation.
The Court of Appeal added:
Mr Brown says that the Lissa Lane proposal was the first occasion where a formal written communication was made to all affected landowners, although this procedure has subsequently been followed.
The Court of Appeal continued:
The problem with this procedure is that it was not set out anywhere in a public document easily accessible to any property owner who may be affected by a proposal to build a new road or to others who might wish to comment.
The extent to which the procedure remained undisclosed and unpublicised is demonstrated by this case.
When it was launched no-one seems to have observed or commented on the lack of any evidence of whether the procedure for consultation had been adopted or not.
The Court of Appeal emphasized that “A failure to formulate, and promulgate a procedure for enabling landowners or others to comment on and object to a proposal is not “in accordance with the law.”
Moses JA of the Court of Appeal, therefore, concluded that declaratory relief is necessary and said:
I would make a declaration that the failure of the Ministry of Planning, Agriculture, Housing and Infrastructure to publish and publicise its process of consultation where a Declaration of Intent is gazetted pursuant to section 3 of the Roads Act (2005 Revision), as described by the former Senior Policy Officer of the Ministry at paragraph 8 of his affidavit dated 9 September 2022 did not comply with the requirement under section 15(1) that any proposed interference with the peaceful enjoyment of property or the taking of property must be in accordance with law.
To that limited extent I would allow this appeal.
