Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

En­vi­ron­men­tal­ist Dr Wayne Kublals­ingh and farmer Shi­raz Khan have suc­ceed­ed in a law­suit chal­leng­ing a de­ci­sion by the En­vi­ron­men­tal Man­age­ment Au­thor­i­ty (EMA) to ap­prove a State hous­ing project near or on the site of the St Au­gus­tine Nurs­eries. 

In a judg­ment de­liv­ered yes­ter­day af­ter­noon, High Court Judge Robin Mo­hammed up­held the duo’s law­suit chal­leng­ing the Cer­tifi­cate of En­vi­ron­men­tal Clear­ance (CEC), which the Hous­ing De­vel­op­ment Cor­po­ra­tion (HDC) ob­tained from the EMA in Sep­tem­ber 2018. 

Jus­tice Mo­hammed up­held sub­mis­sions from the duo’s lawyers led by Kiel Tak­lals­ingh, who claimed that the EMA act­ed un­rea­son­ably, ir­ra­tional­ly and un­law­ful­ly in grant­i­ng the CEC with­out an en­vi­ron­men­tal im­pact as­sess­ment (EIA) be­ing con­duct­ed. 

Jus­tice Mo­hammed is­sued de­c­la­ra­tions over the de­ci­sion and an or­der quash­ing it. 

He al­so di­rect­ed that the EMA fol­low the pro­ce­dure when it re­con­sid­ers the is­sue at a lat­er date. 

Jus­tice Mo­hammed said: “Al­though there was no ex­press re­quire­ment for the con­duct of an EIA be­fore grant­i­ng a CEC, it is my opin­ion that the EMA did not have all the rel­e­vant in­for­ma­tion be­fore them to prop­er­ly de­ter­mine the im­pact of the pro­posed de­vel­op­ment, specif­i­cal­ly on im­pact on the mi­cro-cli­mate of the farm and the nurs­eries’ prop­a­ga­tion sta­tions.

“More­over, the ab­sence of feed­back from the Min­istry of Agri­cul­ture on its views re­gard­ing the im­pact of the de­vel­op­ment on the farm and nurs­eries’ prop­a­ga­tion sta­tion cast doubt in the court’s mind that the EMA had all the rel­e­vant in­for­ma­tion be­fore them to prop­er­ly de­ter­mine whether an EIA was re­quired be­fore grant­i­ng the CEC.” 

Af­ter the judg­ment was hand­ed down, the EMA’s lawyers led by Ian Ben­jamin, SC, and those for the HDC, led by Se­nior Coun­sel Deb­o­rah Peake, suc­cess­ful­ly ap­plied for a 42-day stay of the judg­ment to give them time to con­sid­er it (the judg­ment) and de­cide whether to ap­peal. 

The EMA was al­so or­dered to pay the duo’s le­gal costs for the case, which would be as­sessed if the par­ties fail to agree on a fig­ure. 

The duo filed the case in 2019 af­ter they learned that the CEC had been grant­ed for the HDC to con­struct 12 eight-sto­ry apart­ment build­ings with 504 apart­ments on 17.4 acres of land in Curepe oc­cu­pied by the nurs­eries. 

In Ju­ly 2022, they suc­cess­ful­ly ob­tained an in­junc­tion block­ing the HDC from com­menc­ing and con­tin­u­ing grad­ing work on the site pend­ing the out­come of its le­gal chal­lenge. 

The EMA ob­ject­ed to the duo be­ing grant­ed per­mis­sion to pur­sue the case as it claimed that it would be prej­u­di­cial and detri­men­tal to good ad­min­is­tra­tion as such lit­i­ga­tion would fur­ther de­lay a much-need­ed pub­lic project to pro­vide hous­ing for mid­dle and low-in­come fam­i­lies. 

Jus­tice Mo­hammed re­ject­ed the EMA’s pre­lim­i­nary com­plaint over the duo’s de­lay in fil­ing the ju­di­cial re­view case as he not­ed that while it should have been filed soon­er, the duo was not out­side the three-month dead­line for do­ing so. 

The duo was al­so rep­re­sent­ed by Ste­fan Ramkissoon, and Ra­jiv Sochan. 

The EMA was al­so rep­re­sent­ed by Tekiyah Jorsling, and Mau­rice Wishart, while Ravi Heffes-Doon, and An­dre Rud­der ap­peared along­side Peake for the HDC.