Jamaica Environment Trust v Natural Resources Conservation Authority and National Environment & Planning Agency

• Jurisdiction: Jamaica
• Judge: Straw J
• Judgment Date: 13 October 2011
• Judgment citation (vLex): [2011] 10 JJC 1301
• Court: Supreme Court (Jamaica)
• Date: 13 October 2011
• Docket Number: CLAIM NO. HCV5674/2010

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV5674/2010

IN THE MATTER of the Natural Resources Conservation Authority Act

AND

IN THE MATTER of the Beach Control Act

AND

IN THE MATTER of Part 56 of the Civil Procedure Rules, 2002

BETWEEN

THE JAMAICA ENVIRONMENT TRUST

1 ^st CLAIMANT

AND

THE NATURAL RESOURCES CONSERVATION AUTHORITY

1 ^st DEFENDANT

AND

THE NATIONAL ENVIRONMENT & PLANNING AGENCY

2 ^nd DEFENDANT

Ms. Danielle Andrade for the Claimant

Mrs. M. Shand-Forbes and Ms. T. Hamilton for the Defendants

Breach of statutory Duty-Judicial Review - Legitimate Expectation – Unreasonableness

Straw J

The Claim

By way of Fixed Date Claim Form, the claimant is seeking the following relief against the 1 ^st and 2 ^nd defendants:

1 A declaration that the Natural Resource Conservation Authority (NRCA) and/or the National Environment & Planning Agency (NEPA) breached their statutory duty and/or acted unreasonably or irrationally by allowing the construction of a highway, two seawalls and a boardwalk at Palisadoes, St. Andrew to proceed without having obtained all the relevant permits pursuant to Section 9 of the Natural Resource Conservation Authority Act.

2 A declaration that the NRCA and/or NEPA breached the legal standard for consultation and breached the legitimate expectation that all environmental information relating to the development of Palisadoes would be disclosed to the public and the applicant before approval was granted.

The Background

It is agreed by all the parties that the Palisadoes is of national importance because it has significant historical, ecological and cultural value.

The Palisadoes tombola (strip of land) forms part of the Palisadoes - Port Royal Protected Area (PPRPA).

3 The first defendant, the NRCA, which was established under the Natural Resources Conservation Authority Act (NRCA Act), designated the second defendant, NEPA as the responsible agency for the management of the area. NEPA is an Executive Agency which falls under the NRCA. Mr. Peter Knight is the Chief Executive Officer at NEPA.

The Jamaica Environment Trust (JET) is a non-profit, non-governmental organization incorporated for the purpose of protecting and conserving Jamaica's natural environment which includes ensuring that environmental issues are properly considered in development planning.

4 Mrs. Diana McCauley is the Chief Executive Officer and Director of the Board of the JET, the applicant. She has stated that NEPA has in the past consulted JET in relation to the management of the PPRPA and that since 2002, JET has been regularly invited by NEPA to attend stakeholders' consultation meetings relating to the conservation and management of the PPRPA. JET also routinely reviews Environmental Impact Assessments (EIA) for proposed developments and has on many occasions been invited to do so by NEPA. Since January 2005, JET reviewed over 27 EIA's and submitted written comments to NEPA. This has not been contested by the defendants

Environmental Impact Assessment

5 The following description is given under NEPA's guidelines for conducting EIA, (paragraph 1.4).

‘What is the EIA?’

‘The Environmental Impact Assessment (EIA) involves the process of identifying, predicting and evaluating potential environmental impacts of development proposals. The term describes a technique and a process by which information about the interaction between a proposed development project and the environment is collected, analyzed and interpreted to produce a report on potential impacts and to provide the basis for sound decision making. The results of the study are taken into account by the regulatory authority in the determination of whether the proposed development should be allowed and under what conditions.’

6 The description continues by stating that the EIA is used to examine both beneficial and adverse environmental consequences of a proposed development project and should be viewed as an integral part of the project planning process. Findings of the study should be taken into account in project-design and recommendations implemented should the projects be approved.

A final definition is as follows:

‘EIA is an assessment of the impact of a planned activity on the environment.’ (UN Economic Commission for Europe 1991)

7 The role of an EIA was discussed by my brother Sykes J in Northern Jamaica Conservation Association et al v NRCA and NEPA, Claim HCV3022/2005 ( Pear Tree Bottom ) pg. 4-12. He adopted the definition as summarized by counsel for the defendants in that case and stated that an EIA is part of the information taken into account by the decision maker when deciding whether to grant permission to conduct any activity that might adversely affect the environment (See Belize Alliance of Conservation Non-Governmental Organization v The Department of the Environment and Belize Electricity Co. Ltd. 2004 64WIR 68 ).

Sykes J noted that the authorities reflect that an EIA is satisfactory if it is comprehensive in its treatment of the subject matter, objective in its approach and alerts the decision maker and members of public of the effects of the proposed activity. Sykes J also stated that it is wrong to look at the EIA as the last opportunity to exercise any control over any project to which the EIA is relevant.

The Facts

8 On February 16, 2007, the National Works Agency (NWA) which had responsibility for conducting rehabilitative works along the Palisadoes shoreline, submitted Beach Licence Applications for the construction of a boulder revetment, rehabilitation of sand dunes on the Caribbean Sea front and dredging of 1,100,000 cubic metres of sand to NEPA. NEPA, as is required, requested an EIA report from NWA for the project on April 19, 2007.

9 An EIA was submitted to NEPA in September 2007. A public presentation is a requirement as part of the EIA process under NEPA's guidelines for public presentation. The guidelines state that the authority may waive this requirement from time to time, if deemed appropriate.

The policy in relation to the public presentation is set out under paragraph 2.3 of the NEPA Screening and Scoping Process:

‘The public presentation gives the proponent an opportunity to present to the public the finding of the EIA. It also provides additional avenue for the public to raise questions about the proposed project and for the proponent to respond to these issues and make any necessary changes to the project and the EIA report.’

10 Two public meetings were held to discuss the findings of the Cuban report submitted by NWA which was a detailed study of the Palisadoes Peninsula (dated February 15, 2007) done by Cuban Coastal Engineers. There was also a public consultation/public presentation in keeping with the EIA on the findings on March 12, 2008.

11 Mrs. McCauley attended the said public meeting in March. There is no challenge or dispute in relation to the sufficiency of the EIA or the process of consultation.

12 The claimant is contending that in 2010, it was published in a local newspaper that NWA proposed to modify the design for the Palisadoes development.

Mr. Knight has explained that due to Hurricane Gustav and subsequent storms, NWA observed damage to the dunes and roadway and commissioned Civil Engineers and Coastal Planners (CEAC) to conduct a revised study of the proposed works. He further stated that NWA subsequently presented NEPA with a new design and made a new application for beach licence on July 24, 2009.

13 Mr. Knight agrees that the scope of works to be done under this new design was different from the initial design. He has listed the difference as follows:

• • The revised project substituted the offshore dredging for dune rehabilitation with the deployment of a comprehensive robust rock revetment system designed to withstand a 100 year Return Period Event as compared to 50 years.

• • The construction of 4km of rock revetments on either side of the roadway extending from 150km beyond the Harbour View Roundabout to the entrance to Gunboat Beach.

• • Construction of a 3 metre wide boardwalk on the harbour side, the width of which will facilitate walking, jogging, cycling and drainage improvement works to include swales and culverts.

14 Mr. Knight stated further that NEPA used this study (CEAC) along with the Cuban report and the 2007 EIA to assess the potential impact of the project on the environment and that it was determined that a new EIA was not required as the new design was within the footprint of the previously prepared EIA. He has also stated that there was no need for a new public presentation as the potential impacts of the new scope of works were less than that previously proposed and further, there was no new EIA.

He stated that NRCA considered the project and approved a beach licence for construction and maintenance of two sea walls/revetments.

Mr. Knight explained that further to this approval, NWA prepared and submitted a sea grass and mangrove replanting plan and oil spill contingency plans to NEPA. These documents were reviewed and approved by NEPA.

15 It is interesting to note that Mr. Knight states that as a result of the prevalence of media reports of things that were not considered by the Authority, NEPA and NWA agreed that additional applications would be submitted. NWA did so and on August 17, 2010, the Authority considered and approved the following:

• • Beach licence for coastal reclamation (to carry out coastal reclamation works using 1500 cubic metre of material).

• • Environmental Permit for Wetland Modification

16 In the continuing saga of developments, Mrs. McCauley states that on September 24, 2010, she received a press release from NEPA advising that two permits and two licences had been granted by NEPA for the modified design/specifically:

• 1. Beach Licence for sea walls along both sides of the Palisadoes.

• 2...