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

On 16 February 2007 Jamaica’s National Works Agency (NWA) submitted applications for the construction and dredging projects in the Palisadoes, an area with significant historical, ecological and cultural value. An Environmental Impact Assessment (EIA) was requested, which according to the Environmental Impact Assessment Guidelines required a public presentation is required unless the Authority deems a waiver appropriate. Two public meetings were held. Before starting work, the NWA submitted new designs and a new application in July 2009. Major storms caused increased damage to the roadway and surroundings to be worked on, requiring a new plan. This new plan changed the scope of the work to be completed. Upon review of the new application, the authority deemed that an EIA was not required and approved the new application on August 17, 2010. An environmental non-governmental organization sought 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 project to proceed without having obtained all the relevant permits. Furthermore, the respondents 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. 

Destacados

[31] It is clear that the EIA alerts the decision-maker and members of the public to the effects of the proposed activity. The public presentation provides additional avenue for the public to raise questions about the proposed project also for the proponent to respond and make any necessary changes to the project and the EIA report (see NEPA Screening and Scoping Process, paragraph 2.3).

[32] If the proposed activity is modified, then even if a further EIA is not required, it should be evident that the public consultation would have to be extended in order to present the modified design and allow for concerns to be addressed and discussed before any permits or licences are granted in relation to the modified design.

[33] When the issues are examined in light of the criteria laid down by Lord Woolf MR in R v. North and East Devon supra, it is clear that the defendants fell woefully short by breaching the legal standard of consultation and the legitimate expectation that all the relevant environmental information would be disclosed to the public before approval was given.

[34] The New Design Summary as well as the later CEAC report should have been disclosed prior to any approval being granted as Mr. Knight has stated that the CEAC report ‘examined the scope of the new proposed works and the resultant impact on the coastal and terrestrial environment and recommended mitigation measures.’ At the least, since the new design would include the removal of the mangroves on the harbour side, (as a result of the proposed rock revetment); there should have been disclosure and adequate time given for the consideration of this activity.

[37] I am not of the opinion that the defendants would have been required to disclose this plan as part of the consultation process. Their obligations would have been met once the modified design with any resulting environmental impact had been disclosed and the concerns of the public taken into account.

[45] I am constrained therefore to reach the conclusion that the defendants breached the legal standard for consultation and breached the legitimate expectation that all environmental information (in particular, the Modified Design Plan and the CEAC report) relating to the development of Palisadoes would be disclosed to the public and the applicant before approval was granted.

Decisión

The court granted the 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. 

País

Fecha de la sentencia

13/10/2011

Órgano resolutor

Supreme Court of Judicature of Jamaica