The Northern Jamaican Conservation Association and the Jamaican Environmental Trust and ors v The National Environmental Planning Agency (NEPA) (Claim no.HCV 3022 of 2005)
Case brief by: Nicole Mohammed, Environmental lawyer from Trinidad & Tobago
The applicants sought judicial review of a decision by NEPA to grant a permit to build a hotel at a site on the North Coast of Jamaica known as Pear Tree Bottom. The court set aside the permit. The key principles of the judgment are as follows:
1. The court considered that the standard test of “Wednesbury” unreasonableness was too narrow to apply to environmental matters. Sykes J states that human rights issues attracted a more stringent review by the courts and opined that environmental legislation should also attract a high level of scrutiny. He therefore applied what he referred to as a ‘proportionality’ approach with the level of scrutiny varying according to the subject matter. The judge further stated that on his view of the authorities, a decision maker could survive the Wednesbury test both in the narrow and broad senses and still be found to have acted unfairly. The judge noted: “Unfairness is an abuse of power. Irrationality is simply and extreme abuse of power”. The judge applied these principles holding that: - NEPA had failed to conscientiously address the issue of sewage disposal, providing only that the applicant would be required to apply for a permit to discharge effluent - NEPA has acted unreasonably in accepting an EIA that lacked good quality empirical data particularly with regard to flora and fauna and water quality issues
2. The court followed the governing authorities on consultation stating that once consultation is embarked upon it must meet minimum standards. The courts will examine what took place and make a judgment on whether the flaws were serious enough to deprive the consultation of efficacy. The court held that in failing to circulate a marine ecology report which formed part of the EIA to other external government bodies as required by the legislation, NEPA had acted in breach of its duty to consult and ultra vires its decision making powers. Similarly the court held that the omission of the report during the public consultation process was unfair and deprived the public from formulating a proper view of the EIA.
3. The application was brought just after the three-month statutory time limit. However the judge rejected the argument of undue delay and the suggestion that the ‘six week rule’ commonly applied in English planning cases should be applied. Analysis: This judgment is probably one of the most progressive in the region. The liberal approach to Wednesbury unreasonableness has not been followed in other jurisdiction, though the courts in Trinidad were invited to do so during the smelter litigation. The approach to consultation and delay are also welcomed as the courts have traditionally taken a far more stringent approach to delay and a more relaxed approach when scrutinising public consultation processes
N.B. After the decision the developers brought an application to have the court order varied to delete any part of the declaration that had the effect of halting the construction works. The developers had not been a party to the judicial review. They filed extensive affidavit evidence to prove that a significant portion of the project was already complete. The application was granted on the grounds of third party hardship, some 62 million USD having already been spent in the construction of the hotel. Notably the question of when the costs were incurred was not considered, despite the fact that any money expended after the application was filed should have been regarded as money spent at the developers own risk.
(The Northern Jamaican Conservation Association and the Jamaican Environmental Trust and ors v The National Environmental Planning Agency (NEPA) No. 2 (Claim no. HCV 3022 of 2005)