Air pollution, Audits, Evidence, Licences, Remedies, Property, Environmental Impact Assessments, Jurisdiction, Permits
The Appellant appealed against the 1st Respondent’s approval of the EIA Project Report submitted by the 2nd Respondent in support of its application for an EIA licence for the development of a housing estate to be known as Eagle Plains Housing Estate on plot L.R. No. 209/10829, Nairobi. The land on which the estate was proposed to be developed adjoined the headquarters of the Appellant. The 1st Respondent’s approval, which led to this appeal, had been communicated following the submission by the 2nd Respondent of an EIA Project Report. Consequently, the 2nd Respondent was not required by the 1st Respondent to carry out a full EIA Study. The Appellant’s objection was that the proposed residential project would not be in harmony with the existing industries surrounding the plot, of which the Appellant’s activity was one. The Appellant claimed that air pollution levels in the area were higher than the WHO standards for long term human exposure and that the heavy traffic density and 24 hour industrial operations produced high noise levels for a residential development. In addition the Appellant argued that the proposed development, which was a proposal to construct a 350 unit housing estate inside an area in which no less than 13 industries were located, was “out of character with its surroundings.” Consequently, it could not be approved on the basis of the Project Report alone, and required a full Environmental Impact Assessment Study. The Appellant objected to the decision by the 1st Respondent not to require the 2nd Respondent to carry out a full EIA Study. Among the key benefits which the Appellant saw as arising from the conduct of a full EIA Study prior to a decision whether or not to grant an EIA license was the opportunity which it would provide to potentially affected parties, such as the Appellant, to air their views in the context of public consultation, which was a mandatory requirement of a full EIA Study. The Appellant argued that in approving the project on the basis of a Project Report alone, the 1st Respondent had denied the Appellant an opportunity to provide comments. The Respondents defended the decision to grant approval on the basis of the Project Report alone. They argued that in the area in which the project was to be located both light industrial and residential development were allowed. Other mixed developments were to be found in the area in question, among them residential estates, a hotel, godowns, other commercial establishments and also light industries. The Tribunal held that the quality of air, the level of traffic noise and the quality of water and other features of the environment in the locality were within internationally recommended limits for areas used for human habitation. The claims by the Appellant that residence within this locality would expose those living in the proposed estate to serious health risks on account of the high levels of pollution in the area were not substantiated by credible evidence. Further, before taking the decision, the 1st Respondent had consulted lead agencies as well as a number of potentially affected neighbors, including the Appellant. The Appellant’s argument that in not requiring a full EIA Study interested parties had been denied an opportunity to provide comments on the proposed project was thus not sustainable. Therefore, the Tribunal found that the 1st Respondent was justified in approving the proposed project on the basis of the Project Report alone. Consequently, the Tribunal ruled that the Appellant’s appeal against the 1st Respondent’s approval of the EIA Project Report failed. The Tribunal noted though that licensing this activity in no way took away the rights of the parties under the general law to seek a remedy in nuisance should any of the licensed activities be carried out in a manner which would be remediable under the law of nuisance.