THE Development Control Authority (DCA) is licking its wounds over a high court verdict that quashed its decision to reject an Environmental Impact Assessment (EIA) from the architectural and engineering consultancy firm named Amarna Consult Limited.
The two parties found themselves in court when the consultancy firm declared that DCA wrongfully rejected its EIA for a proposed residential housing development at Belair, Castries and that, consequently, its application for approval of change of land use from agricultural to residential was denied. As a result, it cannot proceed with its intended project.
The consultancy firm, in judicial review proceedings, asked the court to set aside the DCA’s decision on the grounds that: the reasons for the decision were unintelligible and unreasonable; the DCA’s procedure was improper and unfair; it failed to have regard to relevant considerations and took irrelevant considerations into account and it was motivated by bad faith.
The DCA denied these allegations and contended that it properly followed the statutory process and came to a decision on the merits that the EIA was incurably deficient; that it was entitled to reach such a decision; the decision was not irrational and that the court should not set aside the decision simply because it would have come to a different decision than the DCA.
Justice Godfrey Smith, who heard the case and gave his decision earlier this week, noted that regardless of how the grounds have been crafted and however the argument was put, the issue in this case comes down to whether the EIA was inadequate and whether the DCA acted unreasonably or irrationally in rejecting it.
The DCA, in rejecting the Firm’s EIA on November 9, 2016, claims that it was not done to an acceptable professional standard; that it did not comprehensively address the issues which are expected to be dealt with in the preparation of the EIA; that the EIA was sufficiently deficient as a tool which can be used to identify the environmental, social and economic impacts of a project prior to decision-making and identify environmental and economic benefits which can be achieved, such as reduced cost and time of project implementation and design, avoidance treatment/cleanup costs and impacts of laws and regulations.
Attorney Horace Fraser, who appeared for Amarna Consult Limited, argued that the EIA had complied with the Terms of Reference set up by the DCA to guide the EIA and that the DCA had failed to show in what way the EIA had failed to comply with the Terms of Reference. Further, that the DCA’s decision was unreasonable and irrational and that the DCA took irrelevant matters into consideration.
Adrian Etienne and Khadya Florius, who appeared for the DCA, presented arguments in court on how the Physical Planning and Development Act should be interpreted. Etienne submitted that an application for approval in principle under Section 20 of the Act was different from an application for permission to develop land under Section 19 of the Act, stating, for example, that even where approval in principle is granted, a developer must still make application and comply with the provisions under Section 19 before permission to commence development can be granted.
According to him, the requirement to state reasons for decision set out under Section 23 is applicable only to applications made under Section 19 and not to applications for approval in principle under Section 20. He asserted that Section 21 of the Act, under which the head of the division may request further information from the applicant/developer, was applicable only to Section 19 applications and not to applications for approval in principle under Section 20.
Florius presented arguments on the substantive issue of the deficiency of the EIA. She submitted that there was no requirement on the DCA to request any further information if it was satisfied that the EIA was deficient; the EIA was so defective that no further information would have cured the defect; the EIA had inadequately addressed the environmental implications of the proposed development and as such the DCA board was entitled to reject it; the independent consultant, Calvin George, had only reviewed the EIA for an hour and that it could not be said that the decision of the DCA was so outrageous that it defied logic or accepted moral standards and that no reasonable authority could have arrived at such a decision.
The hammer came down on the DCA when Justice Smith, in revealing the finding of the court, said the DCA, in arriving at its decision, took irrelevant considerations into account.
“Further, by concluding that the EIA was deficient in failing to identify the social, economic and environmental benefits and impacts, when these were clearly addressed in the EIA in a substantial way, the DCA arrived at an irrational decision which no reasonable body having reviewed the EIA could have arrived,” Justice Smith said.
According to the Judge, Amarna Consult Limited, in its fixed date claim, asked that the DCA be ordered to consider the EIA in accordance with guidelines provided by the Court. However, he does not think it is part of the function of the Court to direct the DCA on how to do its job.
Said Justice Smith: “All that the Court can do, when its jurisdiction is invoked, is to determine whether the DCA erred under one of the established heads of judicial review in coming to its decision. The court, therefore, makes the following orders: An Order of Certiorari is granted quashing the decision of the Defendant, the Development Control Authority, rejecting the Claimant’s (Amarna) EIA.”
He also prescribed costs to Amarna in accordance with Part 65 of the CPR 2000.
