Enviromental group loses appeal to stop highway construction

Tuesday, October 02, 2018

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LONDON, England (CMC) — The London-based Privy Council Monday dismissed an appeal by the environment group Fishermen, and Friends of the Sea that had been seeking to halt the construction of a multimillion-dollar highway in Trinidad.

The Privy Council, the country's highest and final court, said that it is satisfied that the courts in Trinidad and Tobago were right to adopt a strict approach to any application to extend time, as the proceedings would result in delay to a project of public importance.

“There is no doubt that the application for leave was out of time, and the first- instance judge had found no evidence that any delay in publicising the decision contributed to the appellant's failure to observe the time limit.

“In fact, the appellant had sent a detailed, pre-action protocol letter within the three-month period, so should have been in a state of readiness to file within the same period if necessary,” the law lords ruled, adding that they found no flaw in the reasoning of the judge on this issue and see no basis for interfering.

“There was no adequate explanation for the failure to respect the time-limit and will humbly advise Her Majesty that the appeal should be dismissed,” said Lord Carnwath, who read the ruling on behalf of his colleagues.

The environmental group had filed the appeal against the Environmental Management Authority (EMA) and others after the EMA had, in June 2017, issued a Certificate of Environmental Clearance (CEC) to the Ministry of Works and Transport for the building of a new 5,000-metre stretch of highway, running 120 metres south and parallel to the southern border of the Aripo Savannas Strict Nature Reserve, which had been designated in 2007 as an Environmentally Sensitive Area.

The area constitutes a unique ecosystem of national and international importance, due to its array of habitats and high density of rare, threatened and endemic species.

The highway is part of a larger project, known as the Churchill-Roosevelt Highway Extension Projection, which will be a limited-access, dual, two-lane freeway that will be 32.5km long. The Government says this is intended to contribute to its efforts to stimulate the regional economy of the north and east and to decentralise its administrative and planning functions to the regions.

As part of the application process for a CEC, the ministry informed the EMA that an Environmental Impact Assessment (EIA) would be required, and it provided draft terms of reference for the EIA.

The ministry consulted several Government entities on the draft but there was no public consultation at that stage. The EMA issued the CEC on 22 June 2017.

The appellants said they first became aware of the CEC in July 2017 and they commenced judicial review proceedings on September 29, 2017, claiming that the CEC was unlawful on 14 grounds.

However, Section 11 of the Judicial Review Act provides that applications must be made promptly and, in any event, within three months from the date when the grounds for the application first arose. The court may extend the period if there is good reason for doing so.

The trial judge refused leave to apply for judicial review on the grounds of delay and because the challenge raised no arguable grounds. The Court of Appeal dismissed the appeal for the same reasons.

However, a differently constituted Court of Appeal granted conditional leave to appeal to the Privy Council and an interim injunction to prevent highway works, pending the appeal.

But in dismissing the appeal, the Privy Council said it had considered four issues, noting that the Court of Appeal had given leave on the first three but had reserved to the Privy Council the question of leave on the fourth issue.

The Privy Council said it sees no arguable merit on the grounds of no public consultation.

“Rule 5(2) was not a mandatory requirement in all cases. It is left to the applicant, at least in the first instance, to determine whom to consult. Moreover, the terms of reference process does not pre-empt in any way the rights of the public to take part in the statutory public comment procedure on the terms of the final EIA.”

The Privy Council said that it is hard to envisage a case where a failure to consult at the preliminary stage could invalidate the final certificate, particularly since any matter that had been inadequately considered could be raised by way of objection to the EIA.

Regarding an absence of a cumulative impact assessment in relation to the highway and the proposed continuation of the road beyond the highway, the Privy Council said that it agrees with the majority of the Court of Appeal that there was no arguable breach of the rule requiring the consideration of cumulative effects.

The law lords said that although the ministry had failed to provide information on the possible cumulative impact of future phases, it had explained that this was due to the lack of adequate knowledge of the specific design and operation of any possible future packages.

“The EMA accepted this explanation and the good faith of that acceptance was not questioned. It is impossible to say that the EMA failed to have regard to this issue, or that its response was irrational,” the Privy Council noted.

It said on the rationality of the decision to issue the CEC, the Privy Council said it is not persuaded that leave should be granted to advance a revised argument that the CEC wrongly deferred certain matters to be dealt with under conditions.

“The power to impose conditions on a CEC is unlimited and there is no reason why it should not include an updated EIA. There was nothing inherently unlawful or irrational in the course adopted by the EMA. The original grounds ought to have included a precise formulation of any flaw in the EMA's consideration of this aspect, and without that it would be wrong in principle to allow the matter to be revisited before the Board.

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