John Mussington and another v Development Control Authority and Others

JurisdictionUK Non-devolved
JudgeLord Boyd
Judgment Date27 February 2024
Neutral Citation[2024] UKPC 3
CourtPrivy Council
Docket NumberPrivy Council Appeal No 0116 of 2021,Hilary Term
John Mussington and another
(Appellants)
and
Development Control Authority and others
(Respondents) (Antigua and Barbuda)

[2024] UKPC 3

before

Lord Hodge

Lord Sales

Lord Leggatt

Lord Burrows

Lord Boyd

Privy Council Appeal No 0116 of 2021

Privy Council

Hilary Term

From the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua & Barbuda)

Appellants

Marc Willers KC

Leslie Thomas KC

Stephen Cottle

Thalia Maragh

Adam Riley

(Instructed by Sheridans (London))

1 st and 3 rd Respondents

David Dorsett

Carla Brookes-Harris

Rose Ann Kim

(Instructed by Teacher Stern LLP (London))

2 nd Respondent

Hugh C Marshall Jnr

Kema Benjamin

(Instructed by Marshall & Co (Antigua))

Heard on 8 November 2023

Lord Boyd
1

The issue in this case is whether the appellants have standing to challenge the grant of a development permit for the construction of an airstrip on the island of Barbuda. The airstrip was the first phase in the construction of an airport that would include a terminal building.

2

The appellants are Barbudans resident on Barbuda. The first appellant is a marine biologist by training, and recently retired as the principal of Sir McChesney George Secondary School on the island of Barbuda. The second appellant is a retired teacher.

3

The first respondent, the Development Control Authority (“DCA”) is the statutory planning authority for Antigua and Barbuda, with responsibility for the administration of the development control regime under the Physical Planning Act 2003. The second respondent is a statutory authority responsible for operating airports in Antigua and Barbuda and is responsible for the construction of the airport. The third respondent is the Attorney General as representative of the Government of Antigua and Barbuda.

4

On 29 April 2021 the Court of Appeal of the Eastern Caribbean Supreme Court Antigua and Barbuda dismissed the appellants' application for judicial review, holding that they had not established standing to bring their application.

The planning process in Antigua and Barbuda
5

The DCA was established by the Physical Planning Act 2003, section 4(5). Its functions include the regulation of development “having regard to the need to secure consistency and conformity with the development plan, if any”: section 5(3)(b). The Chief Executive is the Town and Country Planner. Part III of the Act provides for the preparation of a development plan by the Town and Country Planner. Section 11 makes provision for consultation on the draft plan, including, in respect of land in Barbuda, with the Barbuda Council. The draft plan is then submitted to the Minister. If the Minister accepts the plan, with or without modifications, the Minister submits the plan for the approval of Parliament: section 12(4).

6

In December 2011, a “Sustainable Island Resource Management Zoning Plan for Antigua and Barbuda (including Redonda)” was prepared. It was considered and approved by the Cabinet, which decided that the plan was to be submitted by the Minister for the approval of Parliament. The plan is yet to be submitted and approved by Parliament. Where a plan has been prepared but not yet approved, the DCA shall, in considering any application for development permission, give principal consideration to, and be guided by the plan: section 16(1)(c).

7

Part IV of the Act makes provision for the control of development of land. Section 17 provides that no person shall commence or carry out any development of land except in accordance with a development permit. Applications for a development permit are to be made to the DCA through the Town and Country Planner: section 19. Section 22 provides for publicity for applications. With regard to certain classes of development, the Town and Country Planner must, by written notice, require the applicant to give details of the application to such persons and publish details of the application as may be specified in the notice: section 22(1). That includes development in respect of which an environmental impact assessment (“EIA”) is required: section 22(2)(f). Where an EIA is required the DCA may not grant a development permit unless it has first taken the EIA into account: section 23(7). An EIA is required for the proposed construction of an airport: Third Schedule. In determining an application for a development permit the DCA must take into account any report, representations or comment submitted as a result of the requirement to publicise the application: section 22(4). A development permit may be unconditional or be subject to such conditions as the DCA considers fit: section 26(1). In summary, the process affords interested parties an opportunity to comment on and make representations on applications for development permits, particularly where an EIA is required. These must then be taken into account by the DCA in determining the application.

8

Part V of the Act provides for enforcement. In short, where it appears to the Town and Country Planner that any development of land has been carried out without a development permit, or that any conditions or limitations on the permit have not been complied with, the DCA may take enforcement action by serving an enforcement notice: section 34(1). The enforcement notice may require the person on whom the notice is served to remedy the breach: section 34(8). That may include the restoration of land to the state the land had been in before the breach took place. In determining whether to serve an enforcement notice the DCA must take into account, so far as relevant, a number of material considerations set out in section 35(1). These include any statement of policy issued by the Minister relevant to the development, the nature and extent of the breach, the extent or likely extent of damage to the natural environment, the expense likely to be involved in compliance with the notice and the benefits to the community, if any, resulting from the development.

9

There is no statutory requirement to publicise an EIA. The Environmental Protection and Management Act 2015, however, provided for the establishment of an Environment Registry by the Environment Department: section 77. The list of documents to be held in the Registry included EIAs. Section 78 provided for public access to the Registry. The 2015 Act has been repealed and replaced by the Environmental Protection and Management Act 2019. Sections 77 and 78 of the 2015 Act have been replaced with similar provisions in the 2019 Act (sections 87 and 88). The Board was informed that to date no Environment Registry has been established.

The factual background
10

Work commenced on the airstrip around September 2017, while the majority of Barbudans were off the island following Hurricane Irma.

11

Mr Mussington visited the site on 1 November 2017. He met the project manager who confirmed that the area was being cleared for the construction of an airport. Mr Mussington asked him whether he had planning permission and whether an EIA had been carried out. He did not get a straight answer. A few days later Mr Mussington was visited by police officers. They advised him that they were delivering a warning from the Commissioner of Police not to trespass on the construction site or to return to it without permission.

12

Mr Mussington felt himself qualified to question the impact of the airstrip on the environment and whether proper procedures had been followed. He has an undergraduate degree in biology and chemistry and a postgraduate diploma in resource management and environmental studies. He has 30 years of experience in the field of marine biology with particular knowledge of coastal zone systems around Antigua and Barbuda. He has worked as a consultant marine biologist on a number of EIAs in the coastal zone of Antigua and Barbuda and other Caribbean islands.

13

Mr Mussington described some of what he found on his visit in an affidavit dated 28 June 2018:

“As a Barbudan, I am familiar with the area which is being cleared and it is within my personal knowledge that this area is the feeding ground for the Barbudan Fallow deer habitat and breeding area for the red footed tortoise and other wild life such as the wild boar, Barbuda Warbler, other birdlife and associated ecologically important vegetation. I have also seen from my visit that ancient trees including the White Wood have been cleared for the airport development. This caused me extreme concern and distress. Years of history and what was a site of environmental beauty was being devastated in my opinion. I could not understand why this was happening and it made me concerned as to whether the proper procedures had been followed.”

14

In a later affidavit (18 September 2018) Mr Mussington testified that he was very concerned about the impact on archaeology, hydrology and biodiversity of Barbuda. In addition to concerns for the red footed tortoise and Barbuda fallow deer he noted that there was no assessment of whether the operation of the airport would affect the Frigate Bird Sanctuary.

15

At the time of Mr Mussington's visit, the second respondent had not sought, and did not have, a development permit as required by section 17 of the Physical Planning Act 2003. An application for a development permit was made by the second respondent on 27 November 2017.

16

On 4 December 2017 the Department of the Environment (“DoE”) wrote to the Town and Country Planner, Mr Frederick Southwell. The letter stated that, as part of the review process, a site visit had taken place on 28 November 2017. The DoE had been able to observe that the work was well advanced and that many of the negative environmental impacts had already occurred. The letter noted that this could have been avoided had the application been received and reviewed by the DoE prior to the commencement of work. The letter made significant criticisms of an EIA dated 26 June 2017 (“the...

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