LONDON, CMC -The London-based Privy Council Tuesday upheld an appeal filed by two residents of Barbuda in their challenge against the Development Control Authority (DCA) and others regarding constructing an airstrip on the island.
In a 21-page ruling, the Privy Council, which is Antigua and Barbuda’s highest and final Court, said it is “satisfied that the appellants have demonstrated sufficient interest in the environmental issues and the breaches of the 2003 Act raised by the application for the development permit.
“In particular, Mr. Mussington’s scientific background, his knowledge of flora and fauna in the area, his status as a resident, and his experience of conducting environmental assessments amply demonstrate a sufficient interest in the subject matter of the application for judicial review,” the Law Lords ruled.
The appellants, John Mussington, a marine biologist by training, recently retired as the principal of Sir McChesney George Secondary School on the island of Barbud. At the same time, the second unnamed person is a retired teacher.
They are both Barbudans residing in Codrington Village near the proposed airport site and had expressed concerns about the project’s environmental impact, including noise pollution and potential damage to aquifers critical for drinking water.
They also highlighted procedural irregularities, such as the commencement of construction with a proper development permit and adequate public consultation.
The airstrip, which forms the initial phase of an airport development project, has raised concerns about its environmental impact and the appellants’ standing to challenge the development permit.
The Court of Appeal of the Eastern Caribbean Supreme Court had, on 29 April 2021, dismissed the appellants’ application for judicial review, citing a lack of standing.
However, in the appeal, the two Barbudans argued that the Court of Appeal misdirected itself and maintained that in failing to produce the Environmental Impact Assessments (EIAs) in the judicial review proceedings, the respondents had failed in their duty of candor to assist the Court.
They argued that if it were established that the EIA was inadequate, that would assist the Court in determining whether the appellants had standing to complain about the damage to the island’s environment, including the groundwater supply.
Thirdly, they said, there needed to be more appreciation of the relevance of the statutory framework, particularly parts of the Physical Planning Act 2003, which provided for public consultation on significant developments requiring an EIA. Fourthly, it was inappropriate to determine the issue of standing at the interlocutory stage.
The respondents submitted that the appeal before the Privy Council is academic and that it should accordingly refuse to hear the appeal. They said the airstrip, as had the terminal building, had been substantially completed, and it was contemplated that the airport would shortly be operational.
They said that even if the airstrip was built in violation of development control, the airstrip could not be “unbuilt.”
But in granting permission to appeal, the Privy Council said it was satisfied that the appeal raised a question of law of general public importance.
“The issue of standing is not academic; it relates directly to a live issue between the parties which is yet to be determined, namely whether the grant of the development permit was outwith the power of the first respondent.
“The fact that the airstrip is complete does not render the question moot. If, as a result of any subsequent procedure, a court finds that the DCA acted with its power, then it will be for the Court to determine what remedy, if any, should be afforded to the appellants. The remedies potentially available would include an order requiring the land to be restored to its original state,” the Privy Council stated.
The Privy Council also dismissed the argument by the Attorney General, Steadroy Benjamin, who submitted that he is not a proper party to the judicial review proceedings as the Government of Antigua and Barbuda did not take any impugned decisions.
It said it “is satisfied that the Attorney General, as the nominal representative of the Government of Antigua and Barbuda, is a proper party to the proceedings.
“The Cabinet decided to build an airport on Barbuda. The Government made the application for the development permit on 13 July 2018. It is the holder of the development permit and has a clear interest in any remedy that may be imposed if the appellants are successful.”
In its ruling in support of the appeal of the two Barbudans, the Privy Council said Barbuda is a small island and that both the appellants live in the village of Codrington, about two kilometers from the airport and not far from the end of the runway.
“The airport will result in air traffic with attendant noise, general disruption, and environmental damage. An issue of concern arising from the Brosnan report was regarding hydrogeology. It was noted that a resistivity study was required to be conducted to identify aquifers on or near the site that might be adversely affected by the operation of the runway.
“This was important in identifying the impact of runoff from the airstrip on Barbuda’s aquifers, which extract potable water. The possibility that drinking water might be affected by the airstrip’s operation might be of serious concern to residents of Barbuda. Mr Mussington raised the issue of hydrogeology from his visit to the site in November 2017,” it said.
The Privy Council will humbly advise that “the appeal should be allowed.”
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