Fishermen and Friends of the Sea v Environmental Management Authority and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carnwath |
| Judgment Date | 01 October 2018 |
| Neutral Citation | [2018] UKPC 24 |
| Court | Privy Council |
| Docket Number | Michaelmas Term Privy Council Appeal No 0055 of 2018,Privy Council Appeal No 0055 of 2018 |
| Date | 01 October 2018 |
Lord Reed
Lord Wilson
Lord Carnwath
Lady Black
Lord Lloyd-Jones
Michaelmas Term
[2018] UKPC 24
Privy Council Appeal No 0055 of 2018
The Court of Appeal
Judicial Review - Appeal from refusal to leave to challenge a Certificate of Environmental Clearance — Whether Court erred in refusing to extend time for filing application for leave — Consultation with affected members of the public — Whether respondents were entitled to grant Certificate in the absence of a cumulative impact assessment.
| Appellant | Respondent |
| Anand Ramlogan SC | Peter Knox QC |
| Richard Wald | Ravi Heffes-Doon |
| Amirah Rahaman | |
| Jenell Partap | |
| (Instructed by Alvin Pariagsingh Attorney/Solicitor) | (Instructed by Charles Russell Speechlys LLP) |
| First Interested Party (Ministry of Works and Transport) | |
| Ian L Benjamin SC | |
| Tekiyah Jorsling | |
| (Instructed by Charles Russell Speechlys LLP) |
This is an expedited appeal from the refusal of leave to challenge by judicial review a “Certificate of Environmental Clearance” (“CEC”) issued by the Environmental Management Authority (“the Authority”) to the Ministry of Works and Transport (“the Ministry”) for the building of a new 5,000 metre stretch of highway (“the highway”). The proposed route runs some 120 metres south, and roughly parallel to, the southern border of the Aripo Savannas Strict Nature Reserve, designated in 2007 as an Environmentally Sensitive Area. It constitutes a unique ecosystem, of national and international importance, due to its array of habitats not seen elsewhere in the country and its high density of rare, threatened and endemic species. The appellant is a non-profit company concerned to promote effective regulation of the environment of Trinidad and Tobago.
The trial Judge (Ramcharan J) refused leave, on the grounds both of delay, and also because the challenge raised no arguable grounds. The Court of Appeal (G Smith, J Jones and A Des Vignes JJA) dismissed the appeal for the same reasons, save that G Smith JA held that two of the grounds were arguable with some realistic prospect of success, but not so strongly as to outweigh the dismissal of the application on the ground of undue delay. These two grounds were whether public consultation was necessary under rule 5(2) of the Certificate of Environmental Clearance Rules 2001 (“the CEC rules”) in relation to the draft Terms of Reference agreed with the Authority, and whether a “cumulative impact assessment” was necessary to take into account the impact of the highway taken together with its proposed continuation beyond the five kilometres for which the application for a Certificate was made. On 20 April 2018 a differently constituted Court of Appeal (R Narine, P Moosai and C Pemberton JJA) granted conditional leave to appeal to the Judicial Committee of the Privy Council together with an interim injunction to prevent any highway works pending the appeal.
Sections 35 to 38 of the Environmental Management Act 2000 (“the Act”) provide for the relevant Minister to designate activities requiring a Certificate of Environmental Clearance from the Authority before commencement. The proposed highway was such a designated activity. In considering an application for a CEC, the Authority may require an “environmental impact assessment” (“EIA”), in accordance with the prescribed procedure (section 35(4)). By section 35(5), an application which requires an EIA must be submitted for public comment in accordance with the “public comment procedure” laid down by section 28. Section 36 provides that, after considering all relevant matters “including the comments or representations made during the public comment period”, the Authority may issue a certificate subject to such terms and conditions as it thinks fit.
The procedure for such applications is laid down by the CEC Rules. Rule 3(5) sets out the information to be provided in support of an application. Rule 4(1)(d) provides for the Authority, where it so determines, to “notify the applicant that an EIA is required in compliance with a TOR”; TOR is defined as “terms of reference for an EIA” (rule 2). The TOR is first prepared in draft by the Authority for consultation with the applicant. Rule 5(2) provides that, on receipt of the draft TOR, the applicant -
“shall, where appropriate, conduct consultations with relevant agencies, non-governmental organisations and other members of the public.”
The applicant may then make written representations to the Authority requesting modifications to the TOR, and reporting on its consultations. Following consideration of the representations the Authority must issue the final TOR within a defined timelimit (rule 5(3)).
Rule 7 provides for the determination of the application, by grant subject to such “terms and conditions as the Authority sees fit”, or refusal. Rule 8 provides that details of any application for a Certificate (including in particular the information supplied in support of the application and the CEC), and its grant or refusal, are to be noted on a “National Register of Certificates of Environmental Clearance”, which is open to inspection by the public.
Given the importance attached by the appellants to rule 5(2), it is worth noting at this stage its relatively limited place in the procedure. The TOR is not a requirement of the Act. It appears to be no more than a preparatory step under the rules, designed to set the parameters of the EIA as between the Authority and the applicant. Although the implication is that the EIA will be prepared “in compliance with” the TOR, there is nothing in terms in the Act or the Rules to limit the consideration of the final decision on the CEC by reference to it. The requirement to consult other agencies and members of the public “where appropriate” shows that this is not a mandatory requirement in all cases; nor does it grant any general right to the public to be consulted at that stage. The implication seems to be that there may be agencies or individuals with a special interest in, or able to make a particular contribution to, setting the parameters of the EIA at an early stage. It is left to the applicant, at least in the first instance, to determine whom to consult. The responses if any are reported to the authority by the applicant; the consultees have no independent right to make representations on the draft TOR. On the other hand the TOR process does not pre-empt in any way the rights of the public to take part in the statutory public comment procedure under sections 28 and 35(5), and to have their comments taken into account in the Authority's final decision.
On 21 September 2016 the Ministry applied to the Authority for a CEC for a highway, described as -
“commencing at a point 300 metres east of the Cumuto Main Road and ending at a point 600 metres west of Guaico Trace, Sangre Grande.”
The highway forms “Package 1” of a larger project, known as the Churchill Roosevelt Highway Extension Project (“CRHE”) which will be a limited-access dual 2-lane freeway 32.5 km long. The application was prepared by the National Infrastructure Development Co Ltd (“NIDCO”), which had been appointed as executing agency for construction of the CRHE.
The CRHE is regarded by the Ministry as of national importance. It was described in the Ministry's Environmental Impact Assessment as follows:
“The CRHE is a cornerstone of Government efforts to stimulate the regional economy of the north and east and is a key component of Government plans to decentralise its administrative and planning functions to the regions. It is envisaged that the highway will help to close the income and communications gap that exists between rural and urban Trinidad by:
—supporting agriculture in the region;
—facilitating the regeneration of the town of Sangre Grande and consolidating its role as a regional centre, and
—promoting tourism development on the north and eastern coasts.”
In November 2016 the Authority notified the Ministry that an EIA would be required, and that it would prepare a draft TOR. On 11 November 2016 it notified the Ministry that the draft TOR was ready for collection, adding -
“Please note that rule 5(2) [of the CEC Rules] makes provision for the applicant to conduct consultations with the public and, in particular, affected communities within the project area, relevant agencies and non-governmental organisations on the draft TOR.”
The draft TOR included detailed sections setting out the legal framework of the EIA, its objectives and the required contents. A section headed “stakeholder consultation” (section 7) described the purpose of such consultation as part of the EIA procedure, and the requirements including the need for the applicant to “identify all relevant stakeholder groupings”, to facilitate a minimum of two meetings with these stakeholders, and to include “any communities that may be affected by the project”. In a section headed “analysis of environmental impacts” (section 8) it was stated that the description of impacts must include -
“… an assessment of the cumulative environmental impacts that are likely to result from the proposed activities in combination with other existing, approved and proposed projects in the area that could reasonably be considered to have a combined effect;
The cumulative assessment must be based on an adequate understanding of the design and operation of the proposed highway, as well as other existing, approved and proposed projects …”
The Ministry consulted a number of government entities on the draft TOR, but there were no consultations with the general public at that stage.
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