Building and development in the Turks and Caicos Islands is big business. And while the authorities on the Islands are proactive when it comes to encouraging local and foreign investment in real estate, expansion on the Islands is far from being a free for all. In common with other Caribbean islands, strict planning and zoning laws exist in Turks and Caicos to:
Protect key areas such as the National Park from harmful over development; and
Enhance the built environment on the Islands with sensitive and proportionate development.
The 2021 Privy Council case of Silly Creek Estate v the Attorney General demonstrates clearly that the Turks and Caicos government will go to great lengths to ensure key planning decisions are respected and upheld. We examine the case below and outline some of the most important considerations real estate developers and investors should bear in mind when embarking on development on the Islands.
Law firm ParrisWhittaker is a local, award-winning commercial practice. Our specialists advise on all aspects of real estate law, including local planning laws and disputes.
Planning and Development law in Turks and Caicos
The key piece of planning legislation in Turks and Caicos is the Physical Planning Ordinance, administered by the Planning Department. Planning applications are scrutinized and either accepted or rejected by the Physical Planning Board.
At ParrisWhittaker we have the experience to:
Analyze relevant zoning plans;
Assess how they may impact any proposed client development; and
Consult with government departments and the Islands’ investment agency to get an impression of how favourably a particular proposal will be looked at.
Silly Creek Ltd. V THE Attorney General
The Silly Creek case highlights the need for developers to be sure of their position before challenging a decision of the planning authorities in Turks and Caicos. The litigation related to development and planning decisions over a period of some 25 years. The facts therefore are somewhat complicated but may briefly be summarized as follows:
Under a 1995 lease Silly Creek Estate and Marina Ltd. (‘Silly Creek Ltd.’) was allowed to construct certain buildings and related amenities as set out in a Master Plan for the development of an area known as Silly Creek and Silly Cay. Plans submitted by Silly Creek Ltd had been approved.
A dispute arose under the 1995 lease between Silly Creek Ltd and the government. This was resolved by a formal agreement (the ‘Settlement Agreement’) in 2006 under which the government agreed to permit the development of Silly Cay in accordance with an earlier approved Land Use Plan.
This Land Use Plan provided for the construction of five private residential properties in Silly Cay – an area that fell inside a national park.
The Turks and Caicos government then granted a commercial lease to Silly Creek Ltd covering the Silly Cay area.
Relying on this commercial lease Silly Creek Ltd applied for planning permission to develop one of the five residential units referred to in the Land Use Plan.
The Director of Planning refused permission on the basis that the proposed development was of a type which is not permitted within a national park
The Privy Council Decision
Silly Creek Limited succeeded in convincing the Court of Appeal that the Settlement Agreement (mentioned in our summary of the case above) in itself amounted to a grant of planning permission. The Director of Planning could not simply retract it.
The government then took the case to the Privy Council. It argued that the Settlement Agreement couldn’t constitute planning permission as no formal application was even in existence at the time the Settlement Agreement was reached.
The Privy Council found in favour of the government, saying that Silly Creek Ltd’s argument was fatally misconceived . It confused the statutory functions of the Governor in land use planning with his quite separate role in negotiating and agreeing the terms of a commercial lease on behalf of the Crown as landowner.
The Privy Council highlighted that there’s a comprehensive statutory code for planning in Turks and Caicos. It has a ‘panoply of procedures’ to ensure transparency and accountability in the making and recording of decisions taken in the public interest.
The Settlement Agreement had little to do with statutory land use planning, and was certainly not intended to be a grant of development permission. The agreement instead reflected a commercial transaction between the Crown as landowner and the company as intending developer of the Silly Cay land.
Comment
Planning applications in Turks and Caicos for commercial developments of villas and hotels have shot up in recent years. The high demand for this type of property means there’s a lively real estate market on the Islands. The value of land has also increased considerably. This means that for investors considering any kind of commercial development in Turks and Caicos advice from specialist lawyers on the ground is more crucial now than ever.
Contact Us
If you need advice on a planning matter in Turks and Caicos or other real estate issue please schedule a meeting with a lawyer at ParrisWhittaker today.
