(CNS): Beach access problems for developer Morne Botes and his partners in relation to Boggy Sands Club took another turn for the worse after Chief Justice Margaret Ramsay-Hale ruled that neighbouring landowners have the right to erect a gate to stop guests staying at the resort from trespassing. The developers have faced right of way and access issues ever since the condo club was developed and promoted as having direct beach access to this stretch of Seven Mile Beach in West Bay. At one point, Botes joined local beach activists to campaign for better public access to all beaches on Grand Cayman because his luxury development was undermined when the access point to the nearest beach was closed off.
In the end, given that there was no right of way through existing private access points, Botes and his partners purchased a separate beachfront lot further north from the Boggy Sands Club site to fulfil their sales promise of beach access. However, many of the owners of these condos are overseas residents and unaware of the beach access problems associated with the development. Most of the properties are rented out through Airbnb and other accommodation websites.
Guests are also unaware of who owns what and where the rights of way are. As a result, they have been using private land to access the beach. Boggy Sands consists of three lots, but legally only what is known as the Pool Lot has a right of way along Windsong Villas Drive.
There is no right of way for either of the land lots that are home to the completed condo buildings. In effect, as the right of way applies only to the Pool Lot, the owners and guests staying at the Boggy Sands Condo don’t really have access to the beach via the Windsong driveway. However, the resort’s neighbours at Windsong Villas, a smaller and older complex, are not pressing this issue.
They just want the guests to stop crossing their private land. In response to the Boggy Sand Club owners’ attempt to sue them for putting up the gate, the strata at the Villas said that many of the holidaymakers veer off the pool lot driveway onto their property and “make a nuisance of themselves”. To preserve the peace, they installed the gate to indicate to the condo resort’s guests that “the property they were traversing was, in fact, private property and not a part of the condo resort”, especially due to the dramatic increase in the number of guests who had begun using the Windsong driveway since the resort was built.
According to the CJ’s judgment, before the condo club was developed, the use of the easement to access the Pool Lot was negligible. But the residents at Windsong said the trespassing holidaymakers were returning from the beach drunk, noisy and belligerent. The decision to install fence posts and a rolling gate to establish a boundary was to bring attention to the fact that Windsong was not part of the condo resort.
The gate is not locked but rolls open and shut on wheels, so no one has actually been prevented from accessing the beach. In the end, the court found that the owners of Windsong Villa were entitled to “fence their entire boundary” to prevent the continuing trespass by the guests at the condo resort. The CJ said that, as no one occupies the Pool Lot, it was “common sense” that anyone entering Windsong from that lot from the north travelled from either the West Lot or the East Lot and that their use of the Windsong driveway to get to the Boggy Sand Road was a trespass.
“The increased foot and vehicular traffic over the right of way since it has been developed has been the source of much consternation to the owners of Windsong, not least because many of the holidaymakers veer off the driveway built over the right of way and on to the owners’ private property and otherwise make a nuisance of themselves,” Ramsay-Hale wrote in her ruling as she accepted the defendants’ case and dismissed the plaintiffs’ claims and their request that the gate be removed. “The use of the Windsong driveway to access the West and East Lots after a day at the beach was equally unlawful,” she said, indicating that the gate was justified and could remain where it was..
