Fishermen and Friends of the Sea v The Minister of Planning, Housing and the Environment (Trinidad and Tobago)

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Carnwath
Judgment Date27 November 2017
Neutral Citation[2017] UKPC 37
Date27 November 2017
Docket NumberAppeal No 0028 of 2016

[2017] UKPC 37

Privy Council

From the Court of Appeal of Trinidad and Tobago

before

Lord Mance

Lord Wilson

Lord Carnwath

Lord Hughes

Lord Briggs

Appeal No 0028 of 2016

Fishermen and Friends of the Sea
(Appellant)
and
The Minister of Planning, Housing and the Environment
(Respondent) (Trinidad and Tobago)

Appellant

Fyard Hosein SC

Rishi P A Dass

Marina Narinesingh

(Instructed by Simons Muirhead and Burton LLP)

Respondent

Thomas Roe QC

(Instructed by Charles Russell Speechlys LLP)

Interested Party (Environmental Management Authority)

(Instructed by Charles Russell Speechlys LLP)

Heard on 2 November 2017

Lord Carnwath
The hearing
1

The Board records that this is the first video-link hearing from its courtroom in Parliament Square, London, which has been newly equipped for the purpose. The hearing was attended in Trinidad and Tobago by counsel for the appellant, Mr Fyard Hosein SC, leading Mr R P A Dass and Ms M Narinesingh, and in the Board's courtroom in London by Mr Thomas Roe QC for the respondent. The Board invites parties to future appeals to consider using this means of hearing appeals (or oral applications), with a view to the potential savings of expense and time, and to liaise with the Registrar accordingly. The Board will seek to encourage the use of video-link facilities whenever appropriate, particularly where all or any of the parties wish to use such facilities.

The Polluter Pays Principle
2

The Polluter Pays Principle ("PPP" or "the Principle") is now firmly established as a basic principle of international and domestic environmental laws. It is designed to achieve the "internalization of environmental costs", by ensuring that the costs of pollution control and remediation are borne by those who cause the pollution, and thus reflected in the costs of their goods and services, rather than borne by the community at large (see eg OECD Council 1972 Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies; Rio Declaration 1992 Principle 16). Most recently, the Principle has been simply expressed in the Draft Global Pact for the Environment, presented by President Macron to the United Nations Assembly on 19 September 2017:

"Article 8 Polluter-Pays

Parties shall ensure that prevention, mitigation and remediation costs for pollution, and other environmental disruptions and degradation are, to the greatest possible extent, borne by their originator."

3

Discussing the Principle (as it appeared in the EC Treaty, article 130r(2), now article 191(2) of the TFEU) Advocate General Léger identified "two aspects":

"93. It must be understood as requiring the person who causes the pollution, and that person alone, to bear not only the costs of remedying pollution …, but also those arising from the implementation of a policy of prevention …" (Case C-293/97) R v Secretary of State for the Environment, Ex p Standley [1999] QB 1279, paras 92–95)

Both aspects are relevant in the present case. He added (para 97) that the principle may take the form that "in return for the payment of a charge, the polluter is authorised to carry out a polluting activity".

4

Although the Principle is well-established, such statements have been criticised as lacking precision:

"Despite the antiquity and strong ethical foundations of the polluter pays principle, its content is less easy to determine. Proclaiming that 'the polluter should pay' is a simple statement which is intuitively fair, but of necessity it requires an investigation into issues such as who is the polluter? For what should they be made to pay? How much should they be made to pay? And so on …" ( Burnett-Hall on Environmental Law 3rd ed (2012), p 91, para 2–121)

5

In Trinidad and Tobago an attempt has been made to tackle such questions in a more methodical way through the statutory National Environmental Policy ("the NEP") as applied to charges for licences, and, in the context of water pollution, through the Water Pollution Management Programme ("the WPMP"). Paragraph 2.3 of the NEP includes the following:

" Polluter Pays Principle

A key principle of pollution control policy is that the cost of preventing pollution or of minimising environmental damage due to pollution will be borne by those responsible for pollution. The principle seeks to accomplish the optimal allocation of limited resources. Important elements of the principle are:

(a) Charges are levied as an application or processing fee, purchase price of a licence or permit, which entitle the holder to generate specific quantities of pollutants; and

(b) Money collected will be used to correct environmental damage."

6

The central issue in this case is whether the Ministerial regulations by which charges were fixed were consistent with this aspect of the NEP (in particular sub-paragraph 2.3(b)). There is a further issue in any event as to whether the Minister, in formulating the regulations, gave proper consideration to the NEP and to the WPMP.

7

The appellants are a non-profit organisation, concerned with the protection of the environment in Trinidad and Tobago. They have an impressive record of some ten years of giving advice, guidance and assistance to the national community. There is rightly no challenge to their standing to bring this case in the public interest.

The statutory and policy background
The Environmental Management Act 2000
8

This statute ("the Act", it replacing an Act of 1995 in materially the same terms) provides the statutory framework for what is described in the preamble as the government's commitment to "developing a national strategy for sustainable development …". The preamble also states that sustainable development is to be encouraged by use of economic and non-economic incentives, and that "polluters should be held responsible for the costs of their polluting activities".

9

Section 6 provides for the establishment of the Environmental Management Authority ("the Authority"). Section 16 defines the functions of the Authority, to include (inter alia) (a) making recommendations for a National Environmental Policy, (b) developing and implementing "policies and programmes for the effective management and wise use of the environment, consistent with the objects of this Act", (g) monitoring compliance with the standards criteria and programmes relating to the environment; and (h) taking "all appropriate action for the prevention and control of pollution and conservation of the environment". Section 20 gives the Authority power to do "all things necessary or convenient to be done" in the performance of its functions. Other provisions confer powers for specific activities, for example "Emergency response activities" (section 25) and "Environmental Incentive Programmes" (section 34).

10

Section 18 provides for the submission by the Authority's board, following public consultation, of a "comprehensive National Environmental Policy", to be approved by the Minister and laid before Parliament. Section 31 provides:

"The Authority and all other governmental entities shall conduct their operations and programmes in accordance with the National Environmental Policy established under section 18."

It is not in dispute that this section applies to the functions of the Minister in respect of the making of the relevant rules and regulations in the present case.

11

Section 26 (in a group of sections headed "Rules and Public participation") enables the Minister to make rules, subject to negative resolution of Parliament, for a number of matters, including (c) "procedures and standards" with respect to permits or licences required to install or operate any polluting process and (d) "the form and manner of … applying" for any licence or permit.

12

In a part of the Act headed "Management of water pollution", section 52 requires the Authority to carry out investigations to ascertain the extent of water pollution and significant sources of pollution, to establish a register in accordance with rules under the Act, and to develop and implement a programme for management of such pollution. By section 53(1), the Authority "may require and grant permits to authorise any process releasing water pollutants subject to such terms and conditions as it thinks fit".

13

Section 72 provides for the establishment of an Environmental Trust Fund ("the Fund"), which is to be used to fund "the operations of the Authority and for other purposes authorised under this Act …". The other purposes include —

"emergency response activities to address actual or potential threats to human health or the environment, including remediation or restoration of environmentally degraded sites …" (section 72(c))

The resources of the Fund are to include (inter alia) sums appropriated by Parliament, and "such amounts which the Authority may collect as payments for services rendered, fees due regarding permits, applications or licences under this Act …" (section 74(a) and (b)).

14

By section 96 the Minister has power to make regulations for giving effect to the Act, including power to prescribe —

"(2)(a) the amount of charges and fees payable to the Authority for or in relation to applications, licences, permits …"

Unlike the rule-making power, this is not subject to any Parliamentary procedure.

Subordinate legislation
15

In 2001, the Water Pollution Rules, 2001 ("the Rules" or "WPR") were laid before Parliament by the then Minister with responsibility for the environment. The Rules established a permitting system for the regulation of water pollution in Trinidad and Tobago. By rule 8, the Authority may "notify … to apply for a permit" a person who releases a water pollutant outside the permissible level that is likely to cause harm to human health or to the environment. A person granted a permit is required to pay "the prescribed fee" (rule 8(2)). The...

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