Fishermen & Friends of the Sea v Environment Management Authority
| Jurisdiction | UK Non-devolved |
| Judge | Lord Walker of Gestingthorpe |
| Judgment Date | 25 July 2005 |
| Neutral Citation | [2005] UKPC 32 |
| Court | Privy Council |
| Docket Number | Appeal No. 30 of 2004 |
| Date | 25 July 2005 |
[2005] UKPC 32
Present at the hearing:-
Lord Hoffmann
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Carswell
Sir Christopher Staughton
Privy Council
[Delivered by Lord Walker of Gestingthorpe]
The Kapok and Bombax Projects
Trinidad has valuable offshore deposits of oil and natural gas, especially in the sea area south-east of the island. These have brought great economic benefits to Trinidad and Tobago but have also brought concerns about the environmental effects of the exploitation of these natural resources. This appeal relates to two linked projects undertaken by BP Trinidad and Tobago LLC ("BPTT"), the second respondent to the appeal. The projects involved additions to its offshore platforms, the construction of a new 48 inch submarine pipeline to landfall at Rustville on the south coast of Trinidad, and the construction of a further onshore underground pipeline, about 1.5 miles long, to a gas handling facility at Beachfield. The offshore part of the project was called the Kapok project. The onshore part was called the Bombax project. Together they represented an investment of hundreds of millions of US dollars.
The projects are described in great detail in two environmental impact assessments ("EIAs") which were prepared (and, in circumstances described below, published twice in similar but not quite identical form). Most of the details are not material to this appeal. But it is relevant to mention that it has always been part of the overall plan that natural gas would be transmitted from the Beachfield facility through an existing 36 inch underground pipeline to liquid natural gas facilities at Point Fortin on the west coast of Trinidad, so substantially increasing the volume of gas passing through the 36 inch pipeline. This pipeline is about 43 miles long and it passes through or near some heavily populated areas in the southern part of Trinidad. It has been estimated that about 110,000 people live within 2.5 km on either side of the existing 36 inch pipeline.
The environmental legislation
It so happens that the Kapok and Bombax projects were being planned at a time of rapid development in environmental legislation in Trinidad and Tobago. The changing legislative scene has added to the difficulties which both the parties and the courts have encountered in this case. When the planning of the projects started there was an environmental measure on the statute book, the Environmental Management Act 1995 ("the EMA 1995"). But it had not been implemented by secondary legislation which would be needed to make it effective. Indeed their Lordships were told that there were doubts as to whether the 1995 Act was compatible with the Constitution of Trinidad and Tobago, since it had not been passed by special majorities. Since the EMA 1995 was for many practical purposes ineffective, environmental protection depended on powers of control contained in other earlier statutes. In particular, the Kapok project required approval by the Minister of Energy, and the Bombax project required approval by the Town and Country Planning Department ("the TCPD"), before work could begin. Both these authorities required documentary material tantamount to an EIA to be prepared and submitted in respect of major projects such as the Kapok and Bombax projects, although they did so under the general rubric of seeking further information.
The Environmental Management Act 2000 ("the EMA 2000") was enacted (having been passed by special majorities of the Senate and the House of Representatives) on 21 January 2000. It repealed the EMA 1995 and established an Environmental Management Authority ("the Authority") with far-reaching powers for the protection of the environment. For present purposes the key provision of the EMA 2000 is section 35, which provides for certificates of environmental clearance ("CECs") and is in the following terms:
"(1) For the purpose of determining the environmental impact which might arise out of any new or significantly modified construction, process, works or other activity, the Minister may by order subject to negative resolution of Parliament, designate a list of activities requiring a certificate of environmental clearance (hereinafter called 'Certificate').
(2) No person shall proceed with any activity which the Minister has designated as requiring a Certificate unless such person applies for and receives a Certificate from the Authority.
(3) An application made under this section shall be made in accordance with the manner prescribed.
(4) The Authority in considering the application may ask for further information including, if required, an environmental impact assessment, in accordance with the procedure prescribed.
(5) Any application which requires the preparation of an environmental impact assessment shall be submitted for public comment in accordance with section 28 before any Certificate is issued by the Authority."
Section 28 contains detailed provisions for the publication of notices giving information as to the relevant proposal, identifying where the administrative record is being maintained, stating the length of the public comment period, and advising where comments are to be sent.
The EMA 2000, like its predecessor, needed some fairly complex secondary legislation in order to bring it into full effect. In particular, section 35 had no teeth until a list of activities had been designated under subsection (1) and procedural rules had been made under subsections (3) and (4). A ministerial order under subsection (1) was made on 4 April 2001 and came into force on 7 July 2001, two months after being laid before the House of Representatives. This was the Certificate of Environmental Clearance (Designated Activities) Order 2001 ("the Designated Activities Order"). Procedural rules under subsection (3) and (4) were made by a Ministerial Order dated 30 April 2001, which came into force on 14 July 2001, two months after being laid before the House of Representatives. These were the Certificate of Environmental Clearance Rules 2001 ("the CEC Rules"). The Minister also made regulations (not subject to the negative resolution procedure) as to fees. These were the Certificate of Environmental Clearance (Fees and Charges) Regulations, 2001, made on 17 May 2001 ("the Fees Regulations").
Section 39 of the EMA 2000 contained some transitional provisions which were satisfactory so far as they went. But they can be seen, with hindsight, as having left some rather obscure gaps. Section 39 provided,
"Sections 35 to 38 inclusive shall not apply to –
(a) any activity with respect to which, prior to the date on which review under this section first becomes applicable, all final approvals necessary to proceed already had been obtained from all other governmental entities requiring such approvals; and
(b) any activity with respect to which, prior to the effective date on which review under this section first became applicable, outline planning permission, or full planning permission under the Town and Country Planning Act had already been obtained."
The Judicial Review Act 2000
In Trinidad judicial review of official decision-making is regulated by the Judicial Review Act 2000 ("the JRA"). The first three subsections of section 11 of the JRA are in the following terms (subsection (4) not being relevant for present purposes):
"(1) An application for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2) The Court may refuse to grant leave to apply for judicial review if it considers that there has been undue delay in making the application, and that the grant of any relief would cause substantial hardship to, or substantially prejudice the rights of any person, or would be detrimental to good administration.
(3) In forming an opinion for the purpose of this section, the Court shall have regard to the time when the applicant became aware of the making of the decision, and may have regard to such other matters as it considers relevant."
Section 5 (6) of the JRA provides as follows:
"Where a person or group of persons aggrieved or injured by reason of any ground [for judicial review specified in the JRA] is unable to file an application for judicial review under this Act on account of poverty, disability, or socially or economically disadvantaged position, any other person or group of persons acting bona fide can move the Court under this section for relief under this Act."
The Appellant Fishermen and Friends of the Sea ("FFS") is a company not formed for profit which campaigns for the protection of the environment. It has over 20,000 supporters in Trinidad and Tobago. It is not in dispute that it is acting, at least in part, in accordance with the terms of section 5 (6). Section 7 (8) of the JRA provides as follows:
"Where an application is filed under section 5 (6), the Court may not make an award of costs against an unsuccessful applicant except where the application is held to be frivolous or vexatious."
The facts in outline
Because of the changes taking place in Trinidad's environmental legislation at the time, and also because this appeal turns ultimately on the judge's discretion under section 11 of the JRA, it is necessary to cover in some detail the sequence of events during the period of about a year leading up to the application for leave to apply for judicial review made by FFS on 20 May 2002.
The position at the beginning of that period was that the EMA 2000 had been enacted...
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