Dolphin Cove opponents lose court battle

Monday, June 10, 2019

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The residents of Discovery Bay who are opposed to the establishment of a dolphinarium at Puerto Seco Beach on the island's north coast lost their battle in the Supreme Court last week against the operators of Dolphin Cove and four State entities involved in the granting of beach licences and environmental permits.

The court handed down its decision on Friday in the action filed on April 2 by Erica Downer Hamilton, Discovery Bay Community Development Committee (CDC) Ltd, Alloa Fishermen Co-operative Society Ltd, John Greaves, and Jennifer Greaves.

Dolphin Cove Ltd, National Environment and Planning Agency (NEPA), Natural Resources Conservation Authority (NRCA), the Town and Country Planning Authority, and the St Ann Municipal Corporation were named as respondents in the action.

Essentially, the applicants were seeking leave to be granted to apply for judicial review in anticipation of the decision of the NRCA and the Town and Country Planning Authority to renew Dolphin Cove's beach licence, which expired on March 31.

They were also seeking a declaration requiring Dolphin Cove Ltd to conduct an environmental impact assessment on the Discovery Bay area, prior to any application by the company for a renewal of the beach licence and/or prior to the granting of a renewal of the licence.

In addition, the applicants wanted the court to restrain NEPA, NRCA and the Town and Country Planning Authority from renewing the beach licence on the basis that “there has been a complete failure to assess the environmental impacts that the dolphins will have on the bay, which is in breach of several of the conditions indicated in the licence”.

However, the Supreme Court, in refusing to grant an extension of time to apply for judicial review, stated that under the Civil Procedure Rules, applications for judicial review ought to be “made promptly and in any event within three months from the date when grounds for the application first arose”.

The Court noted that the applicants had argued that the delay between the grant of the permit and the licence and the filing of their application arose because they had been contacting Government officials and working on an online petition.

“They were of the opinion that these measures were working and that litigation was not going to be necessary. The application for judicial review was filed on April 2, 2019, some six months after the permit and licences were granted, and nearly a year since the second applicant (Discovery Bay Community Development Committee Ltd) staged a demonstration against the dolphin facility.”

However, the court said there was no good reason to extend the time, adding that it would cause substantial hardship to Dolphin Cove and be detrimental to good administration, as Dolphin Cove, in its submission, indicated that it has incurred significant expenditure in setting up the dolphin facility in reliance upon the permit and licence.

“The court is of the view that there would be no reasonable prospect of success in the application for judicial review, and in any case will not grant leave,” the judgement read.

Reacting to the court's decision, attorney Patrick Foster, QC, who with his colleague Camille Wignaii-Davis represented NEPA, NRCA, and the Town and Country Planning Authority, noted that the court, after hearing the evidence, was satisfied that there was no arguable issue that should have gone to judicial review.

“NEPA carried out all the processes under the law; it was very sensitive to the ecological and environmental factors when it was considering the matter; it arrived at a decision in accordance with law; and it followed all the consultative procedures set out in law,” Foster told the Jamaica Observer on Saturday. “So because of that, the applicants were denied permission to proceed to the judicial review court.

Foster, who also noted that the applicants' application for leave to appeal was refused by the judge, said he suspects that they “may either abandon the matter or, if they choose to go further, apply to the Court of Appeal for leave”.

Foster also said that the Supreme Court's decision means that Dolphin Cove can continue to carry out its operations because the environmental permits and the beach licences that it received “are still operational and still valid in law”.

On Saturday Downer Hamilton, in response to the judgement, said “I don't think, given what the judge said, that there's any point in appealing. There are, he says, other applications open to us and we are exploring those.”

Downer Hamilton also said that a great deal was made of Dolphin Cove's compliance to the conditions of the permit. However, she said she had deep concerns about the integrity of the water-quality testing to which NEPA spoke in its submission.


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