Arlene Elmarie Peterkin v Natural Resources Conservation Authority
| Jurisdiction | Jamaica |
| Judge | Anderson, K.J |
| Judgment Date | 23 September 2022 |
| Year | 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2018 HCV 03058 |
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[2022] JMSC Civ. 153
CLAIM NO. 2018 HCV 03058
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Judicial Review — Statutory interpretation — Illegality — Whether the authority acted illegally — Irrationality — Whether the authority acted irrationally — Whether illegality and irrationality are equated in law — Effluent(s) — Absence of meaning in the Act — Use of a dictionary meaning — Secondary dictionary meaning — Environmental permit — Environmental licences — Object and purpose of the statute — Relationship between primary and subsidiary legislation — Presumption of correctness in statute — Whether provisions are mandatory or discretionary — Whether regulations are ultra vires the primary legislation — Whether public consultation should be conducted — Environmental Impact Assessment — Application for leave to apply for judicial review— Subsequent grounds added after the leave to apply for judicial review was granted — Marine Outfall — Development Order — Appropriate costs order
Kent Gammon and Robert Collie, instructed by Collie Law, for the claimant
Faith Hall, Director of State Proceedings, for the 1 st and 2 nd defendants
Lord Anthony Gifford K.C. Ingrid Clarke Bennett and Renae Robinson, instructed by Pollard Lee Clarke and Associates, for the 3 rd defendant
The claimant, filed this fixed date claim form for judicial review on September 27, 2019 of licences and a permit granted to the National Housing (‘NHT’), allowing it to build a housing scheme with an associated sewage plant at Industry Cove, in the parish of Hanover. The orders sought in that fixed date claim form against the Natural Resources Conservation Authority (‘NRCA’), the Town and Country Planning Authority (‘TCPA’) and the NHT, are as follows:
a. ‘A declaration that the 1 st defendant acted illegally or in the alternative irrationally in not requiring the NHT to submit with their application for a permit for the construction and operation of a sewage treatment plant, an Environmental Impact Assessment (EIA), in accordance with regulation 5(3)(c) of the Natural Resources Conservation (Wastewater and Sludge) Regulations, 2013 (hereinafter referred to as: ‘ the NRCA Regulations’).
b. A declaration that the 1 st defendant acted illegally or in the alternative irrationally in granting a permit to the NHT for relaxing the standards for the Discharge of Sewage Effluent without requesting that the application for the permit be accompanied by: (1) a model of the plume behaviour of the effluent in the coastal and marine environment; (2) the data, studies and calculations that show that the proposed outfall will allow for effluent quality which is still acceptable and will not affect the marine environment beyond the levels already established for the ambient water quality; (3) the data and studies to show the effect of the effluent on the flora and fauna of the marine environment, within the sphere of influence of the above mentioned plume; (4) a drawing of the route of the marine outfall pipe and the construction material and bio-physical survey of the route of the pipe, including the method of laying the pipeline and the floor of sea stabilisation method; and (5) Bathymetry of the seafloor along the alignment of the pipeline, in accordance with regulation 23 of the NRCA Regulations.
c. An Order of Certiorari quashing the decisions made by the 1 st and 2 nd defendants relating to Environmental Licences numbered 2017-09017-EL00021A and 2017-09017- EL00021B for the construction and operation of a sewage treatment system and Environmental Licence numbered 2017-09017-EL00021C for the discharge of sewage effluent into the Caribbean Sea from the said sewage treatment system;
d. An Order of Prohibition preventing the 1 st and 2 nd defendants from granting environmental permission for the sub-division of the lands located at Industry Cove, Hanover, in the alternative, if the 1 st and 2 nd defendants have granted environmental permission, an Order of Certiorari quashing any such decision;
e. An Order for constitutional redress by way of Damages and an Injunction against the defendants collectively and/or separately for breaching the Claimant's human rights under Chapter III of the Constitution of Jamaica, section 13(3)(l), namely the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage, by irrationally and/or unreasonably approving the construction and operation of a sewage treatment plant which, as designed and if constructed will result in the complete and/or catastrophic loss of the beach, wetland and marine resources at Industry Cove, Hanover and for the damage already caused to the marine life and resources of the wetland located at the Claimant's property;
f. Costs of this claim to be awarded to the Claimant.’
The NHT acquired lands at Industry Cove, Green Island, in the parish of Hanover and built 63 houses. The claimant is a resident of Industry Cove and an adjoining landowner to the above-mentioned construction site. She avers that the NRCA granted the relevant licences without requiring the NHT to submit an environmental impact assessment report, along with its application for those licences, in contravention of the NRCA Regulations. She also avers that she will be negatively impacted by the proposed sewage treatment plant as the said plant to be built, as designed and approved, does not have an outfall pipe. She contends that this will result in the pollution of the marine environment, relative to the beach which is used by the wider community for recreational purposes and fishing. She states that the beach is located within an environmentally sensitive wetland.
The Natural Resources Conservation Authority (‘NRCA’) is the statutory body established under The Natural Resources Conservation Authority Act (‘ NRCA Act’). It is empowered to, inter alia, grant environmental permits and licences for enterprise, construction or development in prescribed areas. The Town and Country Planning Authority (‘TCPA’) is a statutory body established under The Town and Country Planning Act. The TCPA is empowered to, inter alia, take decisions, grant approvals and make recommendations for orderly development and planning permission.
The National Environmental Planning Agency (‘NEPA’), is an executive agency which has the responsibility to carry out the technical and administrative mandate of the NRCA, the TCPA along with the Land Development and Utilization Commission. NEPA's mandate is to promote sustainable development by ensuring protection of the environment and orderly development in Jamaica. It reviews applications for permits and licences pursuant to the relevant Acts on behalf of the 1 st and 2 nd defendants. It considers applications by a process of review, research and preparation for review committees.
On March 17, 2017, the NHT submitted to NEPA, applications for an environmental licence for the construction and operation of a wastewater treatment plant as well as an environmental licence, for the discharge of treated effluents into the environment and an environmental permit for subdivision and construction of housing projects of fifty-one or more houses. The NHT later, on November 7. 2017 submitted an application for a beach licence.
NEPA, following its internal procedures and inquires, approved the following licences to the NHT on April 17, 2018:
a. a beach licence for construction, placement and maintenance of a pipeline (2017- 09017- BL00021):
b. environmental licence to construct a wastewater treatment plant (2017-09017-EL00021A);
c. environmental licence to operate a wastewater treatment plant (2017-09017- EL00021B) and
d. environmental licence to discharge sewage effluent into the environment (2017-09017- EL00021C).
On August 31, 2018, NEPA, after conducting its enquiry issued the environmental permit for subdivision and construction of fifty-one or more houses, on August 31, 2018 (2017-09017 EP00086) to the NHT.
It is to be noted that no planning permission was applied for by the 3 rd defendant, with respect to the construction of any of those houses. See in that regard, paragraph 54 of the claimant's affidavit filed in support of the application for judicial review and paragraphs 34 and 35 of Danville Walker's affidavit, Mr. Walker is the Chairman of the boards of NRCA and TCPA.
The claimant sought leave to apply for judicial review and was granted same by Mr. Justice Gayle, on September 16, 2019.
The order for constitutional relief was sought, but at the onset of the trial of the claim, counsel for the claimant, Mr. Gammon, informed the court that his client was no longer pursuing that relief and therefore, withdrew it, without prejudice. In the circumstances, this court will not treat with that relief, in these written reasons.
The following issues arise for consideration in light of the facts of the case:
a. Can illegality and irrationality, as a matter of law, properly be treated with, as being the equivalent of each other?
b. Is the word ‘effluents’ as used in the sections 9 and 12 of the NRCA Act and regulation 5 of the NRCA Regulations applicable to the factual substratum of this case?
c. What are the roles of sections 9, 10 and 12 of the NRCA Act within the context of this case?
d. Whether section 10(1)(b) of the NRCA Act should be interpreted as being mandatory in effect rather than as is presently worded, discretionary, in effect.
e. Which section(s) of the NRCA Act ought properly to be treated with, by this court, as ‘the enabling provision(s)’ which serve to enable the relevant...
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