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Delapenha Funeral Home Limited v. The Minister of Local Government and Environment

A funerary services company presented an application for judicial review of the decision of the Minister of Local Government and Environment ordering the cessation of the company’s development of a cemetery until a full Environmental Impact Assessment (EIA) had been conducted. The company had initially been granted permission to develop the project without an EIA but residents of the community objected to the construction fearing water contamination. Since the assessments conducted revealed no threat to the underground water resources in the area, the company argued that the Minister’s decision was irrational and unreasonable as it took into account irrelevant and immaterial considerations and/or failed to take into account relevant and material considerations and acted ultra vires. 

Destacados

[93] It is clear that section 10 of the N.R.C.A. Act empowers the N.R.C.A., at their discretion, to require an applicant for a permit or the person responsible for undertaking any construction or development to submit an E.I.A., where it is of the opinion that the activities of such construction or development are likely to have an adverse effect on the environment.
[94] I accept the respondent's submission that at the time at which the Company applied for the permit, the N.R.C.A. did not deem it necessary to require an E.I.A. as the information from the regulatory agencies N.W.A., E.H.U.), as well as the technical opinion of NEPA, concerning the development , did not warrant such an assessment based on impacts.
[95] The respondents submit that in light of the new information received, it was possible for the N.R.C.A. to have requested the Company, responsible for construction and development of the site, to have submitted an E.I.A. A close reading of the relevant section suggests that that is correct. I agree however with the submission that section 10 is limited in scope and that the N.R.C.A. would not have been empowered to suspend the development pending the E.I.A. I can also see where what the N.R.C.A. would now have wanted provided to it would be an E.I.A. performed by an independent body, as opposed to the Company.
[113] [...] On a simple level, EIA is merely an information-gathering exercise carried out by the developer and other bodies which enables a local planning authority to understand the environmental effects of a development before deciding whether or not to grant planning permission for that proposal. On this level, however, there is little to distinguish this concept from the normal planning process under which environmental effects are a material consideration. The innovation behind the formal EIA process is the systematic use of the best objective sources of information and the emphasis on the use of the best techniques to gather that information. The ideal EIA would involve a totally bias free collation of information produced in a form which would be coherent, sound and complete. It should then allow the local planning authority and members of the public to scrutinise the proposal, assess the weight of predicted effects and suggest modifications or mitigation (or refusal) where appropriate. [...]Thus, EIA is a technique and a process. It is inanimate rather than tangible. The key point is that strictly the ‘assessment' is undertaken by the local planning authority on the basis of environmental information supplied to it. This information consists in part of an environmental statement prepared by the developer (or more likely, by hired consultants) which details at least the main environmental impacts of the project and any mitigating measures which are proposed to reduce the significance of those impacts. But just as importantly it also includes other information supplied by various statutory consultees (e.g. EA, English Nature), independent third parties (such as local conservation and amenity groups), members of the public and even the local planning authority itself. Crucially, EIA is an inherently procedural mechanism. Although it is intended to be preventive (and, some would argue, also precautionary), there is nothing that requires the decision-maker to refuse a development project because negative environmental impacts are highlighted by the EM, or even to impose conditions to mitigate any such impact. It should also begin as early as possible when projects are being planned. A further, and crucial, point is that EM should be an iterative process, where information that comes to light is fed back into the decision-making process.

[139] It is clear to my mind that in this case both the N.R.C.A. and the Minister acted in good faith and had the interests of the citizenry at heart, in particular their health and safety. They had in mind protection of the environment, of the water resources in the area. Both purported to act with the precautionary principle in mind but, regrettably, the result was that the Minister responsible for the Environment acted unlawfully. This case suggests to me that one way to implement and exercise the preventive and precautionary principles may be to categorise projects such as, the instant one, projects to do with cemeteries, (because of their nature size and location) as requiring compulsory Environmental Impact Assessment before permits are granted. This will of course be in the final analysis a matter for the technocrats and legislators. As the extract from Ball and Bell on Environmental Law, referred to earlier treating with "Environmental Impact Assessment" indicates, the E.I.A. should begin as early as possible when projects are being planned. Ideally, it will allow for all stakeholders, including the applicant for the permit, the statutory consultees, members of the public, and independent third parties, such as local conservation and environmentalist groups to have some input and dialogue. Though at a cost to tax payers, conducting the E.I.A from the outset would foster greater public confidence in the regulatory and planning systems and may be the prudent course to take in the long run. I daresay that had the N.R.C.A. required, or been able to require an E.I.A. in the first place when the Company applied for the permit, the public objection and outcry by the citizens of Ramble, may well have been quelled, or at any rate substantially diminished.

Decisión

The Court found that the authority acted outside of its statutory powers as the Natural Resources Conservation Authority Act authorized stop orders in limited circumstances, none of which were applicable to the facts. The Minister had thus acted irrationally and unreasonably.

País

Fecha de la sentencia

13/06/2008

Órgano resolutor

Supreme Court of Judicature of Jamaica