Wild Goose Ltd v The Environmental Management Authority of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Margaret Y Mohammed |
| Judgment Date | 25 June 2021 |
| Neutral Citation | TT 2021 HC 150 |
| Docket Number | No. CV 2019-02219 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
the Honourable Madam Justice Margaret Y Mohammed
No. CV 2019-02219
In the Matter of the Judicial Review Act Chap 7:08 and Part 56 of the Civil Peoceedings Rules 1998
and
In the Matter of an Application by Wild Goose Limited for Judicial Review of: a Decision by Senior Superintendent of Police Garth Nelson and the Environmental Management Authority to Unlawfully Shut Down the Event Tailgate Carnival on the 27th February 2019
Mr Christophe Rodriguez instructed by Rhyjell Ellis Attorneys at law for the Claimant
Mr Kelvin Ramkissoon instructed by Ms Rhea Robinson Attorneys at law for the First Defendant
Mr Lester Chariah instructed by Mr Joel Roper Attorneys at law for the Second Defendant
| Page No. | |
| Introduction | 3 |
| The Claimant's Case | 3 |
| The First Defendant's Case | 9 |
| The Second Defendant's Case | 11 |
| Conflicts in the Evidence | 12 |
| Main Issues: | |
| (I) Was the decision by the servants and/or agents of the First Defendant to turn off the music at the event illegal, ultra vires, an excess of jurisdiction or beyond their power? | 12 |
 Provisions under the EM Act | 13 |
 Section 25 of the EM Act—Emergency power | 16 |
 Implied power under the EM Act | 22 |
 The Police Service Act and the Summary Offences Act | 33 |
 Lack of evidence for breach of peace and public nuisance | 35 |
| (II) Did the Claimant have a legitimate expectation that the music would not be turned off once the noise level did not exceed85 decibels and it agreed to pay a fine? | 44 |
| (III) Did the Second Defendant have any role in making the decision to shut down the event/ turn of the music and if so did he have any lawful basis to do so? | 49 |
| Damages | 53 |
| Order | 68 |
The First Defendant is the statutory body in this jurisdiction which is charged with the responsibility of co-ordinating, facilitating and overseeing the execution of the national environmental policy and programmes; promoting public awareness of environmental concerns, establishing an effective regulatory regime to protect, enhance and conserve the environment and taking appropriate action for the prevention and control of pollution and the conservation of the environment. A common feature of Trinidad and Tobago's Carnival is outdoor parties where the number of patrons vary from a few hundred to a few thousand. A staple at these events are live performances and DJ music. The Claimant is an event management and entertainment company. On 26 February 2019, the Claimant hosted an event, at the Paddock area of the Queen's Park Savannah (“the venue”) entitled Tailgate Carnival (“the event”). This claim arose from the decision of the officers of the First Defendant and the Second Defendant to shut down the event.
The Claimant's position was set out in two affidavits of Khama Taylor-Philip 1 (“Mr Philip”). Prior to the event, a Noise Variation (“the Noise Variation”) was procured for and on behalf of the Claimant in accordance with Section 51 (2) of the Environmental Management Act 2 (“the EM Act”), and the Noise Pollution Control Rules, 2001 (“the NPCR”). The Noise Variation permitted the Claimant to play music at the event at 85 decibels from 6:00pm-8pm and then at 75 decibels from 8pm—to 2:00 am on the 27 February 2019.
Prior to the event, the Claimant also procured the relevant Theatre and Dancehall License, an Occasional Spirit Retailer's and a Copyright Music Organization License.
At the venue, on the night of the event, around 8:30 pm, Mr Philip who was one of the Claimant's representative, was approached by two police officers, one of whom identified himself as PC Hume (“PC Hume”). He was asked to accompany PC Hume and the other officer to the location where they were taking readings of the Noise levels at the event. Mr Philip, PC Hume and the other officer, proceeded towards the roadway at the front of the Queen's Park Savannah and headed in an easterly direction for about 200 meters and stopped at the corner of Dere Street and Queen's Park Savannah.
PC Hume took Mr Philip to a device on top of a tripod stand which he described as the sound monitoring device and asked Mr Philip to produce his Noise Variation. PC Hume then looked at the device again and told Mr Philip that the noise coming from the event was supposed to be no more than 75 decibels at this time. Mr Philip was then instructed to observe the device and saw that the reading was fluctuating between 84–88 decibels. PC Griffith (“PC Griffith”) joined Mr Philip and PC Hume and informed Mr Philip that he should call the sound engineer and have him adjust the sound. Mr Philip contacted Mr Kwasi Taylor (“Mr Taylor”) another representative of the Claimant who was in the venue at the time, and informed him that the Claimant needed to turn down the volume level.
During the conversation with Mr Taylor, Mr Philip kept an eye on the device and observed the levels were fluctuating between 83 and 76 decibels, with the lowest being 76 decibels. At that point, according to Mr Philip, PC Griffith suggested to him that if the Claimant was unable to achieve the required noise level in accordance with the Noise Variation, they could impose a fine on the Claimant instead of shutting down the event and the Claimant could continue at the current level which was approximately 85 decibels.
Mr Philip indicated to PC Griffith that the Claimant would continue to make efforts to decrease the volume levels before accepting the fine. Those efforts continued without success resulting in Mr Philip indicating to PC Griffith that the Claimant would accept the previously discussed fine. PC Griffith responded “Paying it don't make this okay but it's carnival time, you all could stay at that level, we will not shut down the event”.
Mr Philip returned to the venue. At around 10:50pm, a skit/dialogue was being performed on stage and the master of ceremonies, went onto the stage and said to the crowd words to the effect that “they asked us to take the volume down but its carnival and I don't care” in an attempt to energize the crowd.
Soon after the execution of this skit, three officers, including PC Griffith and PC Hume approached Mr Philip in the backstage area. Both PC Griffith and PC Hume indicated that the representatives of the Claimant were being disrespectful.
Mr Philip explained to the officers that the skit was pre-planned and it had nothing to do with them and it was just a way to energise the crowd. The Second Defendant then asked whether everything was now okay, to which PC Griffith replied in the affirmative.
The Second Defendant then left but both PC Hume and PC Griffith stayed. PC Griffith then said to Mr Philip that the Claimant was over the approved decibel limit for the event and that if it went over the limit again the event would be stopped. Mr Philip reassured the officers that he would personally continue to oversee the noise levels, and both PC Hume and PC Griffith proceeded to another part of the venue.
At approximately 11:40 pm as the execution of the final pre-planned skit began, the DJ announced that the First Defendant had shut down the event and proceeded to apologise to patrons. At this time two big, black, tinted Special Utility Vehicles proceeded to the front of the venue through the crowd. When the vehicles got to the front, three popular soca artistes Voice, Lil Natty and Thunda emerged from the sunroof of the vehicles and started to perform their hit song entitled “Pandemonium” which caused the crowd to erupt into a frenzy.
Within seconds, PC Hume ran onto the stage and indicated to Mr Philip that the event would be stopped in 2 minutes. Mr Philip attempted to find out why the event was being shut down before the scheduled end time of 2:00am. However, PC Hume indicated that it would be shut down in 1 minute.
Mr Philip met with all the officers who were gathered backstage. According to Mr Philip, PC Hume, indicated that the skits would make the Trinidad and Tobago Police Service (“TTPS”) and the First Defendant be seen in a negative manner by the public. He demanded an immediate public apology to the First Defendant or the event would be shut down. Mr Philip begged PC Hume to be reasonable, as the performance by Voice, Lil Natty and Thunda was still on-going at the time and assured him the apology would be made after.
Mr Philip also assured all the officers that the noise level would be reduced to the agreed 85 decibels again. In response PC Hume indicated that the members of the Claimant were being disrespectful to the officers.
According to Mr Philip, PC Hume indicated while the other officers were present, that the event was over and then went onto his phone and disappeared from backstage. At the conclusion of the performance by Voice, Lil Natty and Thunda, the DJ and master of ceremonies requested that the artistes thank and apologize to the authorities which they did.
After the apology some of the First Defendant's officers present claimed that the artistes deliberately said “authorities” and not “EMA”. PC Hume directed that the Claimant make a better public apology or the event would be shut down, however, by this time another prominent soca artiste was already on the stage performing. Mr Philip asked PC Hume if the Claimant would be allowed to re-issue the apology after the performance to which the officers agreed.
Mr Philip then immediately instructed the DJ to give a better apology. The music was stopped and the DJ apologized on behalf of the Claimant to the “EMA” for the skits and thanked them for...
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