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Concerned Residents of Cunupia v. Environmental Management Authority and RPN Enterprises Limited

A non-profit organization representing the residential communities of Cunupia sought judicial review of the decision of the Environmental Management Authority to enter into a consent agreement with a company in respect of the establishment of a concrete batching plant. Residents of the area began formal complaints leading to an investigation by the Environmental Management Authority and the sending of a Notice of Violation. The consent agreement was made following a site visit and the imposition of a fine on the company. The claimants alleged such agreement was unlawful, null and void and of no effect. 


[174] Even the ground of illegality was based ultimately on the right of the public to be consulted before a developer could embark on projects which caused a negative environmental impact.
[175] Had the deponents disclosed that the batching plant was non-operational, at the time of the application for leave, the Court would undoubtedly have enquired whether the batching plant and by extension the decision of the defendant was the cause of sufferings of the claimants. The Court would have enquired whether it may have been rather the use of the land for stockpiling of aggregate that gave rise to the problems encountered by the claimants. The use of land for the stock piling of aggregate is not an activity requiring a CEC and would have been regarded as unrelated to the impugned decision of the defendant. The Court would have enquired whether an action in nuisance might have better met the needs of the claimants, and whether the claimants‟ action ought to have been directed to the RPN Enterprises Limited rather than at the defendant.
[176] It is therefore my view that the Court would have treated with the application for leave very differently, had the claimants disclosed that at the critical time the concrete batching plant, though present on the land was not operational. On the principles expounded in Brinks Mat, the claimants have not been frank with the Court. It is therefore my view that their non-disclosure would have affected the Court’s view of the issues which engaged its attention at the application for leave to apply for judicial review. The Court is therefore of the view that on that ground the application ought to be dismissed.
[195] In the proceedings before this Court, before refusing the application of the Interested Party, the EMA indicated that no EIA was required. In my view, the direct result of this was that Section 35(5) of the Act was not activated in respect of this project and it was not required to be submitted for public comment.
[196] The EMA then exercised its powers at Section 36 of the Act. At this stage the EMA refused the application for the CEC. In this regard, one encounters a problem of statutory interpretation, in that the EMA in considering all relevant matters, as required by Section 36, could not consider any public comments, as there were none. In my view, it is at this Section that the Court ought to proceed to employ the purposive interpretation to avoid an absurd result.
[197] The stated purpose of the Act is sustainable development, which is the balance between environmental protection and economic development. The Act does not require the EMA to employ the big stick on every developer, but is required to respond to the application for a CEC according to the environmental impact of the proposed activity. As stated above, the application with the least environmental impact requires no CEC at all. The application with the greatest impact requires a CEC and an EIA. If Section 36(1) of the Act is seen through this lens, it must be interpreted as permitting the EMA to consider comments and representations only where they have been required by Section 35(4).
[205] In this respect, I agree with learned Senior Counsel, Mr. Martineau, that a legitimate expectation cannot be founded on a statutory right. See early authorities on legitimate expectation such as the learning of Lord Diplock in O’Reilly v. Mackman [O’Reilly v. Mackman [1982] 3 All ER 1124] and CCSU v. Minister for the Civil Service [CCSU v. Minister for the Civil Service [1984] 3 All ER 935]. It can be seen from those authorities that a legitimate expectation arises where the impugned decision does not affect the enforceable rights of the claimant. (See Lord Diplock in CCSU at page 951(j). A legitimate expectation arises therefore, where enforceable rights have ended.
[207] I therefore respectfully agree with learned Senior Counsel for the defendant that the claimants could not conceive a legitimate expectation on the basis of the clear statutory right which they enjoy by virtue of Section 31 of the Act [Environmental Management Act, Ch. 35:05].
[213] In summary it is my view that in its decision to enter into a consent agreement with the Interested Party, the EMA acted within its discretion as conferred by the Act. Its actions fell short of the definition of unreasonableness and the impugned decision could not be described as one which was so unreasonable that no reasonable authority would make.

[216] In this way, it is my view that the decision of the EMA to avoid requiring a new CEC and to enter instead into a Consent Agreement with the Interested Party compromises the policy of the public participation, which is reflected in the Act and enshrined in the National Environmental Policy. It is therefore my view and I hold that the impugned decision, though otherwise flawless, was one that was in conflict with the general policy of the Act.


Although the Court considered the ground of the application ought to be dismissed due to non-disclosure (the deponents did not disclose that at the time of the application for leave, the batching plant was non-operational), it proceeded to consider the grounds of illegality, irrationality and alleged breach of a legitimate expectation. In this regard, it found that the decision to not require a new CEC and to enter into a consent agreement comprised the right of the public to be consulted.