Dr. Wayne Kublalsingh v Environmental Management Authority

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Robin N. Mohammed
• Judgment Date: 12 July 2022
• Neutral Citation: TT 2022 HC 166
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV 2018-04762

IN THE MATTER OF THE APPLICATION FOR LEAVE TO MAKE A CLAIM FOR JUDICIAL REVIEW PURSUANT TO SECTION 56.3 OF THE CIVIL PROCEEDINGS RULES, 1998 AND PURSUANT TO SECTION 6 OF THE JUDICIAL REVIEW ACT CHAPTER 7:08

AND

IN THE MATTER OF THE DECISION OF THE ENVIRONMENTAL MANAGEMENT AUTHORITY (EMA) DATED 14 SEPTEMBER 2018, TO ISSUE A CERTIFICATE OF ENVIRONMENTAL CLEARANCE (“CEC”) TO THE TRINIDAD AND TOBAGO HOUSING DEVELOPMENT CORPORATION (“HDC”) FOR THE SPECIFIC PURPOSE OF THE DEVELOPMENT OF 504 UNIT MULTIFAMILY RESIDENTIAL DEVELOPMENT OF 7.038 HECTARES OF LAND OFF THE CORNER OF FARM ROAD THE SOUTHERN MAIN ROAD, VALSAYN

Between

Dr. Wayne Kublalsingh

and

Shiraz Khan

Applicants/ Intended Claimants

and

Environmental Management Authority

Respondent/ Intended Defendant

Before the Honourable Mr. Justice Robin N. Mohammed

Claim No. CV 2018-04762

IN THE HIGH COURT OF JUSTICE

SAN FERNANDO

Appearances:

Mr Dinesh Rambally, Mr Kiel Taklalsingh and Mr Stefan Ramkissoon instructed by Ms Arya Mahabir for the Applicants

Mr Ian Benjamin S.C leads Ms Tekiyah Jorsling instructed by Mr Maurice Wishart for the Respondent

DECISION ON THE APPLICANTS' APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

1. INTRODUCTION

1 The Applicants/Intended Claimants (hereinafter referred to as ‘the Applicants’) are persons seeking to act in a representative capacity pursuant to Section 5(2)(b) of the Judicial Review Act Chap 7:08. The Respondent (hereinafter referred to as the ‘EMA’) is a statutory body charged with the management, conservation, protection, use and regulation of the environment under the provisions of the Environmental Management Act 2000 (“the EM Act”). It is the sole body authorized by Parliament to grant environmental clearance for activities that present potential threats to the environment through the issuance of a Certificate of Environmental Clearance (‘CEC’) pursuant to Sections 35 and 36 of the EM Act.

2 In the instant application, the Applicants have sought leave of the Court to apply for Judicial Review to review the decision of the EMA to issue a CEC to the Trinidad and Tobago Housing Development Corporation (“HDC”) for the specific purpose of the development of 504 Unit Multi-Family Residential Development on 7.038 hectares of land off the Corner of Farm Road, Southern Main Road, Valsayn.

3 This application was filed by the Applicants on 14 December 2018 supported by the affidavits of Dr. Wayne Kublalsingh, Dr Pramenath Narinesingh, Evans Ramkhelawan and Ms Yasmin S. Baksh-Comeau. An Amended Application made without notice in accordance with CPR Part 56.3(2) was thereafter filed on 30 January 2019 which was supported by the aforementioned affidavits and the affidavit of Mr Wahid Ojeer.

4 The Applicants seek the following reliefs against the Respondent/Intended Defendant:

• (i) A Declaration that the decision of the Intended Defendant (EMA) to issue a Certificate of Environmental Clearance (CEC) is unlawful;

• (ii) An Order of Certiorari quashing the EMA's decision of 14 ^th September, 2018 to issue a CEC to the HDC for the establishment of a 504 Unit Multi Family Residential Development of 7.038 hectares off the Corner of Farm Road and the Southern Main Road Valsayn (“the Project”);

• (iii) An order of mandamus that the EMA require an Environmental Impact Assessment (“EIA”) of all relevant matters to accurately determine the extent of risks associated with the Project;

• (iv) Such further and/or other Orders pursuant to the provisions of section 8(1) (d) of the Judicial Review Act as are required for the protection of the Claimant's interests and to ensure that the Defendants act lawfully and/or as the Court deems just;

• (v) All necessary and consequential directions as may be required;

• (vi) Costs.

5 Additionally, the following interim relief pending the hearing and determination of the application for leave and/or the claim for judicial review was also sought:

• i. That an interim Order be granted restraining the HDC whether acting individually or in concert and/or through its servants and/or agents or otherwise howsoever from commencing and/or continuing any works on the project site pending the hearing and determination of this application for judicial review or until further Order upon such terms as this Honourable Court may deem just;

• ii. A representative order permitting the Claimants to be appointed as persons having a sufficient interest in the matter to which this application relates pursuant to section 6(2) of the JRA.

• iii. An Order further to CPR 33.5 to rely upon expert reports and evidence of Dr. Pramenath Narinesingh, Mr Evans Ramkhelawan, Mrs Yasmin S. Baksh- Comeau and Mr Wahid Ogeer.

6 In response to the application, submissions were filed by the EMA supported by the affidavits of Mr Wayne Rajkumar and Arnott Jones.

GROUNDS

7 The Applicants contend that the said Decision of the EMA is unlawful, on the following bases:

i) The EMA acted unlawfully when it failed in its statutory duty to consider all relevant matters before deciding to issue the CEC, as it failed in its public law duty to sufficiently inform itself with all material and relevant facts and/or issues prior to the discharge of its discretion to issue the said CEC:

PARTICULARS

a. The HDC in its application form for a CEC dated 1 ^st September, 2017 and received by the EMA on the 10 ^th October 2017, provided false and misleading information, namely, in respect of question 10b on the said application form, the HDC stated that there were no springs or aquifers in or adjacent to the site. The project site lies over the Valsayn aquifer. In this regard, the intended Defendant acted unlawfully in arriving at its decision to issue the said CEC by discharging this discretion on an erroneous and/or false and/or mistaken factual basis. The EMA failed in its mandate to request information, throughout the application process on any likely impacts on the project on the aquifer.

b. The EMA was aware that the land on the St Joseph Farm St Augustine Nurseries upon which the project is proposed to be constructed is agricultural land and part of a larger enclosed parcel. It failed to request information of the HDC and/or to require a study of and/or require an examination of the impact of an extensive piece of housing infrastructure, namely the construction of twelve high rise buildings, each eight stories high, on the microclimate of the farm upon which the valuable tree and plant stocks of the contiguous St. Augustine Nurseries rely. The intended Defendant acted unlawfully and/or irrationally in failing to pay sufficient and/or any regard to the relevant consideration of the impact of this proposed housing infrastructure upon the microclimate of the said St. Augustine Nurseries and/or farm.

c. The EMA failed to ask for information of the HDC and/or to require a study or an examination of the potential risks and/or likely negative impacts on the propagation station contiguous to the proposed project site, which said station dispenses plant and tree crops to, farmers, householders and institutional stakeholders. The intended Defendant acted unlawfully and/or irrationally in failing to pay sufficient regard to its Tameside duty of the relevant consideration of the potential risks that the proposed HDC project would have on the propagation station contiguous to the proposed project site.

d. The EMA acted unlawfully and/or irrationally in failing to sufficiently inform itself pursuant to its Tameside duty by not requesting information of the HDC or requiring an examination of the potential risks to the St. Joseph Farm St. Augustine Nurseries including but not limited to its value as an ecological asset; its role and significance as one of the last remaining expansive green spaces on the East West Corridor, which provides water filtration, and mitigates against climate warning, flooding and other extreme weather impacts.

e. The EMA acted unlawfully and/or irrationally in failing to sufficiently inform itself pursuant to its Tameside duty in failing to accurately assess and rate other likely adverse impacts, more particularly in respect of hydrology, hydraulics and water discharge due in part to items of false and misleading information presented to it by the HDC and/or omissions of material facts by the HDC in its application for the CEC. Further, with respect to these hydrology issues the EMA proceeded on an erroneous and/or false and/or mistaken factual basis.

ii) The EMA surrender and/or ignored the powers, mandatory functions and duties that it was required to exercise under section 36(1) of the Act;

iii) The EMA acted under certain material errors of fact and law in the purported exercise of its discretion to grant the CEC;

iv) The EMA erred in failing to require an EIA to determine and/or permit itself to assess the full scope of risks associated with the Project;

v) The EMA's decision to issue the CEC without the benefit of a full and accurate purview of the impacts of the proposed project was unreasonable, reckless, irregular, irrational and/or an improper exercise of its discretion.

THE APPLICANTS' CASE

8 The facts upon which the Applicants rely follow.

9 On 1 September 2017, the HDC, acting on the basis of a Cabinet Minute No. 1376 dated 3 August 2017, applied to the EMA for a CEC to build a high-rise complex on lands of the St. Joseph Farm at the corner of the Southern Main Road and Farm Road, Curepe. It proposes to build 500 multi-family units on twelve housing blocks, each eight storeys high, on 17.4 acres of the Farm. The housing scheme is proposed to run alongside the Southern Main Road on the Farm for approximately 542 yards, with an encroachment from the Main Road into the Farm of approximately 155 yards.

10 The Farm, which includes the St. Augustine Nursery, was established by the British Colonial Government in the early 1930's. It was part of an economic plan for...