Neale v Environmental Management Authority

• Jurisdiction: Trinidad & Tobago
• Judge: Rahim, J.
• Judgment Date: 25 January 2016
• Neutral Citation: TT 2016 HC 11
• Docket Number: CV 2014-03449
• Court: High Court (Trinidad and Tobago)
• Date: 25 January 2016

High Court

Rahim, J.

CV 2014-03449

Neale

and

Environmental Management Authority

Appearances:

Mr. K. Mattis for the claimant

Mr. M. Wishart instructed by Ms. R. Robinson for the defendant

Civil practice and procedure - Whether the claim for malicious prosecution in relation to enforcement proceedings brought under the Environmental Management Act was actionable in law. Tort — Malicious prosecution ? Whether the claimant proved the essential elements of malicious prosecution ? Whether the defendant instituted proceedings which were determined in favour of the claimant ? Whether there was reasonable and probable cause to initiate proceedings against the claimant ? Whether the defendant was actuated by malice.

Rahim, J.

1 It is the case of the claimant that an administrative order was made against him without his knowledge and that subsequently, an application was made to the Environmental Commission (also referred to as “the Environmental Court” in this judgment), to enforce such an order. The enforcement proceedings were discontinued against him on the date of hearing and the defendant was ordered to pay the claimant's costs. The claimant therefore claims damages, inclusive of exemplary and aggravated damages for malicious prosecution for the wrongful issue of proceedings by the defendant pursuant to Section 67 of the Environmental Management Act, Chapter 35:05 (“the Act”). The claimant was at the time a self-employed mechanic operating a small automotive repair garage situated at No. 25 Blitz Village, Old Pleasantville, San Fernando (“the garage”).

2 The defendant, the Environmental Management Authority (EMA) is a statutory body established by the Act and is vested with responsibility to co-ordinate, facilitate and oversee execution of the national environmental strategy and programmes, to promote public awareness of environmental concerns, and to establish an effective regulatory regime which will protect, enhance and conserve the environment. See paragraph 5 of the preamble to the Act.

THE ISSUES

3 The issues in this case are as follows:

• i. Whether a claim for malicious prosecution in relation to enforcement proceedings brought under the Act is actionable in law.

• ii. If so, what are the essential elements of such a claim and whether the claimant has proven those elements.

4 According to Section 16(1) of the Act, the general functions of the defendant are as follows:

• a) make recommendations for a National Environmental Policy;

• b) develop and implement policies and programmes for the effective management and wise use of the environment, consistent with the objects of this Act;

• c) co-ordinate environmental management functions performed by persons in Trinidad and Tobago;

• d) make recommendations for the rationalization of all governmental entities performing environmental functions;

• e) promote educational and public awareness programmes on the environment;

• f) develop and establish national environmental standards and criteria;

• g) monitor compliance with the standards criteria and programmes relating to the environment;

• h) take all appropriate action for the prevention and control of pollution and conservation of the environment;

• i) establish and co-ordinate institutional linkages locally, regionally and internationally; perform such other functions as are prescribed; and undertake anything incidental or conducive to the performance of any of the foregoing functions.

5 Section 62 of the Act provides that “environmental requirement” means the requirement upon a person to-

• a) comply with the procedures for the registration of sources from which pollutants may be released into the environment;

• b) comply with the procedures and standards with respect to permits or licences required for any person to install or operate any process or source from which pollutants will be or may continue to be released into the environment;

• c) provide in a timely manner complete and accurate information in any required submission to or communication with the Authority or in response to any inspection or request for information by the Authority;

• d) refrain from any unauthorized activities impacting on the environment in an “environmentally sensitive area” or with respect to an “environmentally sensitive species”;

• e) comply with the performance standards, procedures, licensing or permitting requirements established for the handling of hazardous substances;

• f) apply for and obtain a Certificate of Environmental Clearance;

• g) comply with the conditions and mitigation measures in any such certificate;

• h) comply with the procedures and standards with respect to the periodic or continual monitoring of pollution or releases of pollutants or conditions required under a permit or licence;

• i) provide timely and accurate notification with respect to an accidental or unauthorized release of a pollutant or other incident with respect to a hazardous substance;

• j) control the release of pollutants in such a manner as to comply with any permit or licence granted under section 50(1), 53(1), 57( 1) or 60(1);

• k) submit timely payment of required fees or charges payable to the Authority; and

• l) comply with all other procedures, standards, programmes and requirements in such a manner as may be prescribed by Rules or Regulations

6 The Act authorizes the defendant pursuant to Section 63 (1) of the Act to issue a written Notice of Violation where the Authority reasonably believes that a person is in violation of an environmental requirement. Section 63 of the Act provides as follows:

• “63. (1) Where the Authority reasonably believes that a person is in violation of an environmental requirement, the Authority shall serve a written notice of violation (hereinafter called “Notice”) on such person in a form determined by the Board, which shall include-

  • a) a request that the person make such modifications to the activity within a specified time, as may be required to allow the continuation of the activity; or

  • b) an invitation to the person to make representations to the Authority concerning the matters specified in the Notice within a specified time.

• (2) Where a matter specified in the Notice may be satisfactorily explained or otherwise resolved between the person and the Authority-

  • a) the Authority may cancel the Notice or dismiss the matters specified in the Notice; or

  • b) an agreed resolution may be reduced in writing into a Consent Agreement

7 Section 64 of the Act provides that the Authority may issue an Administrative Order where the person:

• a) Fails to make representations to the Authority within the time specified in the Notice; or

• b) Is unable to resolve with the Authority all the matters specified in the Notice.

8 According to Section 65 of the Act, an Administrative Order served by the Authority shall, where appropriate-

• (a) specify details of the violation of one or more environmental requirements;

• (b) direct the person to immediately cease and desist from the violation or specify a date for coming into compliance;

• (c) direct the person to immediately remedy any environmental conditions or damages to the environment arising out of the violation or specify a date by which such remedial activities shall be completed;

• (d) direct the person to undertake an investigation regarding any environmental circumstances or conditions within such person's responsibility or control, including any release of a pollutant into the environment or the handling of any hazardous substance;

• (e) direct the person to perform any monitoring or record-keeping activities which may be required under section 47;

• (f) include a proposed administrative civil assessment made by the Authority;

• (g) direct a person to comply with any other requirement under this Act.

• (2) Directives contained in an Administrative Order served upon a person shall be deemed final and conclusive.

9 Section 67 of the Act states as follows:

• “67(1) The Authority may file any Consent Agreement or final Administrative Order and an application for enforcement with the Commission.

• (2) Where an Administrative Order contains a proposed administrative civil assessment, that assessment is not enforceable until such time as the Commission makes an Order determining the amount of such assessment.”

10 So that the EMA is empowered with or without consent to make an assessment of environmental impact in monetary terms by way of administrative order and follow up by applying to enforce such an order by payment of the assessed sum by the person so ordered. It is alleged that the claimant breached the Act by the established of his garage and also by modifying same without the grant of a Certificate of Environmental Clearance.

THE CLAIM

11 The claimant has been living at his address since 1993 and in or about 1997-1998 he established a garage on his premises. The claimant claims that the activities conducted at the garage since 1997 or 1998 included car repairs, vehicle accessorizing, painting and body jobs. He stated that he began no new activity at the garage since its establishment. The claimant alleges that on November 5, 2004 agents of the defendant visited his garage and identified themselves as Environmental Inspectors appointed by the defendant (“the inspectors”). This is not in issue. The claimant further alleges that the inspectors informed him that they received a complaint about fumes and noise emanating from the garage and sought and was granted the claimant's permission to inspect the garage.

12 The claimant claims that the inspectors collected soil and air samples and also enquired of him as to the date upon which he began operations. It is his case that he informed them that his garage came into being in or around 1997 to 1998. The claimant further claims that the inspectors advised him to erect a tarpaulin on the eastern and...