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Jamaica Environment Trust and another v. National Water Commission and others, Claim no. HCV 00114 of 2010 (2010.07.06) (Supreme Court of Judicature of Jamaica) (Final Order) (Harbour view sewage treatment plant case, consent order)

Date: 
2010
Case Summary: 

The Northern Jamaican
Conservation Association and the Jamaican Environmental Trust and ors v The
National Environmental Planning Agency (NEPA) (Claim no.HCV 3022 of 2005) 
Case brief by: Nicole
Mohammed, Environmental lawyer from Trinidad & Tobago 
The applicants
sought judicial review of a decision by NEPA to grant a permit to build a hotel
at a site on the North Coast of Jamaica known as Pear Tree Bottom. The court
set aside the permit. The key principles of the judgment are as follows: 
1. The court considered
that the standard test of “Wednesbury” unreasonableness was too narrow to apply
to environmental matters. Sykes J states that human rights issues attracted a
more stringent review by the courts and opined that environmental legislation
should also attract a high level of scrutiny. He therefore applied what he
referred to as a ‘proportionality’ approach with the level of scrutiny varying
according to the subject matter. The judge further stated that on his view of
the authorities, a decision maker could survive the Wednesbury test both in the
narrow and broad senses and still be found to have acted unfairly. The judge
noted: “Unfairness is an abuse of power. Irrationality is simply and extreme
abuse of power”. The judge applied these principles holding that: - NEPA had
failed to conscientiously address the issue of sewage disposal, providing only
that the applicant would be required to apply for a permit to discharge
effluent - NEPA has acted unreasonably in accepting an EIA that lacked good
quality empirical data particularly with regard to flora and fauna and water
quality issues 
2. The court
followed the governing authorities on consultation stating that once
consultation is embarked upon it must meet minimum standards. The courts will
examine what took place and make a judgment on whether the flaws were serious
enough to deprive the consultation of efficacy. The court held that in failing
to circulate a marine ecology report which formed part of the EIA to other
external government bodies as required by the legislation, NEPA had acted in
breach of its duty to consult and ultra vires its decision making powers.
Similarly the court held that the omission of the report during the public
consultation process was unfair and deprived the public from formulating a
proper view of the EIA. 
3. The
application was brought just after the three-month statutory time limit.
However the judge rejected the argument of undue delay and the suggestion that
the ‘six week rule’ commonly applied in English planning cases should be
applied. Analysis: This judgment is probably one of the most progressive in the
region. The liberal approach to Wednesbury unreasonableness has not been
followed in other jurisdiction, though the courts in Trinidad were invited to
do so during the smelter litigation. The approach to consultation and delay are
also welcomed as the courts have traditionally taken a far more stringent
approach to delay and a more relaxed approach when scrutinising public
consultation processes
N.B. After the
decision the developers brought an application to have the court order varied
to delete any part of the declaration that had the effect of halting the
construction works. The developers had not been a party to the judicial review.
They filed extensive affidavit evidence to prove that a significant portion of
the project was already complete. The application was granted on the grounds of
third party hardship, some 62 million USD having already been spent in the
construction of the hotel. Notably the question of when the costs were incurred
was not considered, despite the fact that any money expended after the
application was filed should have been regarded as money spent at the
developers own risk. 
(The Northern
Jamaican Conservation Association and the Jamaican Environmental Trust and ors
v The National Environmental Planning Agency (NEPA) No. 2 (Claim no. HCV 3022
of 2005)

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