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(CNS): An appeal by a group of West Bay landowners who challenged the government over land seized from them for a public road around Lissa Lane has ended with a declaration that the planning ministry’s failure to publicise the consultation on the acquisition did not comply with the Constitution.
The Court of Appeal nevertheless upheld the original ruling dismissing the petition as it found “no injustice or unfairness” overall.
The case stems from a long-running and angry dispute between neighbours in the area, which has even come to blows in the past, largely as a result of the feud between Wilson Mendoza, one of three petitioners opposing the road, and former Cabinet minister Mike Adam, who has prescriptive rights to cross Mendoza’s land.
In August 2019, a notice was published in the Cayman Islands Gazette under the Roads Act on the recommendation of the National Roads Authority to create a new public road at West Bay North West, Block 4B, Boundary Plan 626.
Three of the impacted owners set to lose small pieces of land for the road challenged the acquisition in court, suggesting it was a breach of their human rights and that there wasn’t a proper mechanism for them to challenge the acquisition. After the Grand Court found against them last October, the petitioners appealed.
In a ruling published last week, the appeal court found that the ministry’s failure to formulate and promulgate a procedure for enabling landowners or others to comment on and object to a proposal was not “in accordance with the law”. The judges said that the law must be “accessible” and “foreseeable” with a “transparent statement of the procedure to be adopted” in cases that fall within section 15 of the Bill of Rights and the Roads Act.
The principles of transparency and good administration apply to the taking of property for the construction of public roads, but those principles were not followed in this case, the appeal court found.
“The policy adopted by the Ministry as to how to deal with objections should have been published so that objectors would know well in advance how any objection would be considered and dealt with,” the ruling states. “The procedure for consultation should have been notified so that all who objected to the proposals should know how they should make objection when and how those objections would be received and considered prior to a final decision being made.”
The court did conclude that “procedure was followed in this case” and that the appellants did have a proper opportunity to make their objections. “There is no evidence that they were not fairly and properly considered,” the court found.
While the court found that “it would not be right to quash this particular decision”, the justices said that future acquisitions made under the Roads Act must also comply with the Bill of Rights.
The full ruling – CICA (Civil) Appeal No 30 of 2021 (G 163 of 2019) – is available on the judicial website here.
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