Northern Jamaica Conservation Association, Jamaica Environment Trust, Cecil Carrington, Eleanor Grennan, Annabella Proudlock, John DeCarteret v Natural Resources Conservation Authority and National Environment and Planning Agency

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 14 June 2006
• Judgment citation (vLex): [2006] 5 JJC 1601
• Court: Supreme Court (Jamaica)
• Date: 14 June 2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

THE NORTHERN JAMAICA CONSERVATION ASSOCIATION

FIRST APPLICANT

AND

THE JAMAICA ENVIRONMENT TRUST

SECOND APPLICANT

AND

CECILE CARRINGTON

THIRD APPLICANT

AND

ELEANOR GRENNAN

FOURTH APPLICANT

AND

ANNABELLA PROUDLOCK

FIFTH APPLICANT

AND

JOHN DeCARTERET

SIXTH APPLICANT

AND

THE NATURAL RESOURCES CONSERVATION AUTHORITY

FIRST RESPONDENT

AND

THE NATIONAL ENVIRONMENT AND PLANNING AGENCY

SECOND RESPONDENT

Mr. Dennis Morrison Q.C. and Mrs. Julianne Mais-Cox instructed by DunnCox for all the applicants

Mr. Patrick Foster, Acting Deputy Solicitor General and Mrs. Symone Mayhew, Assistant Attorney General, instructed by the Director of State Proceedings for both respondents

JUDICIAL REVIEW - Environmental matters

1 JUDICIAL REVIEW, LEGITIMATE EXPECTATION, UNREASONABLENESS AND DELAY

SYKES J

2 1. Along the northern coastline of Jamaica there is a bit of land, nestled by the sea, just outside of Runaway Bay, in the parish of St. Ann. It is rich in biodiversity. It is known as Pear Tree Bottom. It has caught the eye of many persons. Local residents and environmentalists have for years lauded and enjoyed its picturesque grandeur. It teems with wildlife ranging from potoos and patoos to yellow snakes and yellow-billed parrots. It is agreed that it is a very sensitive area from an ecological standpoint. The affidavit of Dale Webber, marine biologist and Director of the Centre for Marine Sciences and Head of the Department of Life Sciences, sworn on behalf of the applicants, makes this plain. His expert opinion is that "the ecological value of Pear Tree Bottom area is very high and that the ecological resources are important". He speaks of the fringing reef. He adds that few areas along the north coast display "this sort of bathymetry and ... diversity of corals, fish, invertebrates and associated benthic flora".

3 2. Some years ago Tank-Weld Ltd. purchased the property and had in mind to develop a resort there. For whatever reason, it did not follow through with its intention and in 2003 sold the land to Spanish hotel developers known as the Pinero Group. The Pinero Group also found the location idyllic and wish to build a 1918 room hotel at the site. In Jamaica, the Pinero Group takes the corporate form of Hoteles Jamaica Pinero Limited ("HOJAPI").

4 The litigants

5 3. The Northern Jamaica Conservation Association ("NJCA") has had a long history in environmental matters. Prior to its change of name it was known as the St. Ann Environment Protection Association. It was founded in 1989. It is a limited liability company without share capital and governed by a Board of Directors elected by the members. The affidavit of Miss Wendy Ann Lee (formerly Wendy Van Barneveld and Wendy Bell) establishes beyond question the interest of the NJCA in environmental issues generally and Pear Tree Bottom in particular. The interest in Pear Tree Bottom has been unflagging and extends over some twelve years. Mesdames Carrington, Grennan and Proudlock are members of NJCA. These are the third to fifth applicants. Miss Lee swore her affidavit on behalf of the third to the sixth applicants.

6 4. The second applicant, Jamaica Environment Trust ("JET"), is a non-profit nongovernmental organisation formed in 1991 to protect the natural environment in Jamaica and promote environmental awareness. It is run by a Board of Directors. Mr. DeCarteret is a member of JET.

7 5. The Natural Resources Conservation Authority ("NRCA") was established by the Natural Resources Conservation Authority Act (see section 3 of the NRCA Act). The National Environment and Planning Agency ("NEPA") is described as an Executive Agency. It is said to be an amalgam of the Town Planning Department, the NRCA and the Land Development and Utilization Commission. NEPA then is the agency under which the NRCA falls. This explains, in part, why they are respondents in this judicial review.

8 The challenge and grounds

9 6. The applicants have sought judicial review of the decision to grant a permit given to HOJAPI to build the hotel. This permit is an environmental permit. Without it the development at Pear Tree Bottom would quite likely not take place. When this permit is secured then the developer will have an easier task to obtain building and planning permission. The applicants have asked for the following orders:

• (1) An order of certiorari to quash the decision to grant a permit granted pursuant to section 9 of the Natural Resources Conservation Authority Act to Hoteles Jamaica Pinero Limited (HOJAPI Ltd.) for a development of a Bahai Principe Resort at the place called Pear Tree Bottom in Runaway Bay, St. Ann on Jamaica's north coast;

• (2) An order of mandamus to direct the Natural Resources Conservation Authority to reconsider its grant of a permit to HOJAPI Ltd;

• (3) A declaration that procedures of the Natural Resources Conservation Authority and/or the National Environment Planning Agency were not complied with in granting this permit;

• (4) Such further or other relief as may be just;

• (5) Costs

10 7. The applicants accept that the National Resources Conservation Authority ("NRCA") is the body authorised by the relevant statute to grant permission to engage in the development at Pear Tree Bottom. The many paragraphs in the fixed date claim form can be summarized as follows:

the NRCA Acted irrationally and unreasonably when it granted the environmental permit to HOJAPI because

• (1) it failed to take into account all relevant considerations when deciding to grant the permit;

• (2) it Acted outside its statutory mandate given in sections 4 and 9(5) of the National Resources Conservation Authority Act ("NRCA Act") in that the Act says that the permit shall not be granted if the development to which the application relates is or is likely to be injurious to public health or to any natural resource;

• (3) it failed to take into account and properly address the material concerns of the Water Resources Authority and the St. Ann Parish Development Committee before granting the permit;

  the NRCA and NEPA failed to meet the legitimate expectation of the applicants that

• (4) the public meeting which is part of the consultation process would be conducted in accordance with the guidelines for holding public meetings published by NRCA;

• (5) a second public meeting would be held before any permit would be granted to HOJAPI

11 8. Before turning to the issues in detail I need to say a few words at this early stage about an environmental impact assessment ("EIA").

12 The role of an EIA

13 9. Mr. Foster has submitted quite forcefully and with merit that an environmental impact assessment is not an end in itself but a means to an end. The submission was in response to the applicants' position that the EIA in this case was so flawed that any decision based on it must be unreasonable. He placed much reliance on the case of Belize Alliance of Conservation Non-Governmental Organization v The Department of the Environment and Belize Electricity Company Ltd (2004) 64 WIR 68. Mr. Foster relied on paragraphs 10, 63, 68 and 69 (from the majority judgment of Lord Hoffman) for the following propositions:

• a. 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;

• b. the EIA is not expected to resolve every issue raised and indeed it could not since by its very nature it does not purport to explore every single possibility and advance solutions;

• c. 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;

• d. 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 the public of the effects of the proposed activity.

14 10. There is nothing to suggest that the minority (Lords Walker and Steyn) dissented from these propositions. The point of separation was on the weight to be given to the erroneous statement in the EIA concerning the type of bedrock at the proposed dam site. It seemed to have been accepted by all the judges who heard the case (from first instance to the Judicial Committee of the Privy Council) that the EIA was otherwise quite detailed and impressive in quality and depth. This certainly was the view of the Chief Justice and the Court of Appeal. It must be pointed out that it is not entirely clear whether the encomiums heaped up on the EIA by both lower courts would have been the same had they known about the serious error that had been made which was apparently concealed by authorities. Lord Hoffman did not dissent from Lord Walker's accusation that the authorities were less than frank. He looked at the matter in the round and said "no engineer with experience of building dams has said that the classification of the rock is significant as such" (para. 47) whereas Lord Walker observed that the "sandstone bedrock is probably capable of providing a satisfactory foundation for a dam but only if the new geological information is taken into account in the design" (see para. 118). Lord Hoffman seemed to be saying that the decision maker would have made the same decision in any event so there was no need to quash the decision. Lord Walker's view of the matter led him to think that the revelation about the bedrock made a fundamental difference to the weight to be given to the EIA because it changed the complexion...