Permits, Biodiversity, Environmental Impact Assessments, Jurisdiction
Along the northern coastline of Jamaica there was an area particularly rich in biodiversity, which included corals, fish, invertebrates and associated benthic flora. It was a very sensitive area from an ecological standpoint. A Spanish hotel developer known as the Pinero Group wished to build a 1918 room hotel in the area. The applicants sought judicial review of the decision to grant the environmental permit given to the developer by the state authority in charge to build the hotel. They argued that the authority acted irrationally and unreasonably when it granted the environmental permit. The applicants’ position was that the Environmental Impact Assessment (EIA) in this case was so flawed that any decision based on it had to be unreasonable. The court had to analyze whether the respondents made a decision that was so unreasonable that no reasonable decision maker could have made it. The court emphasized that it was not to substitute itself for the decision maker. Where Parliament by legislation had entrusted the decision making on a particular issue to a functionary it was for that functionary alone to make the decision. The court examined the criteria for “unreasonableness” by referring to related jurisdiction, including the so called “Wednesbury unreasonableness” test and the relevant statutory provisions. It further analyzed the concept of fairness, the environmental permit application and the EIA. It also emphasized that consultation of citizens by public bodies and authorities was a well established feature of modern governance and it addressed the question whether the consultative process was flawed. It concluded that the order of certiorari should be granted quashing the decision to grant the permit. The relevant authority had failed in its statutory duty to consult with the relevant government agencies by failing to circulate the marine biology report to them. The consultation process was flawed because an important part of the EIA was not placed in the public domain and the public was not told about this omission. The public were therefore deprived of participating in a consultation process that was based on complete information. The authorities also did not give sufficient weight to the empirical weaknesses of the EIA and this weakness was all the more significant when the proposed project was to take place in an ecologically sensitive area. Without a proper evidential basis it would be difficult to see on what basis an effective monitoring programme could be developed and to determine whether the ecology of the area was improving, deteriorating or static. It therefore directed the authority to reconsider its decision to grant a permit to the developer.