A landmark judgement by the Privy Council in London
Photo courtesy of Global Legal Action Network (GLAN)
In case you haven’t caught up with this yet, there has just been a momentous judgement by the Privy Council that clarifies and strengthens the powers of communities and individuals to challenge by way of judicial review how government bodies have made decisions.
In effect, it makes it much more difficult for government bodies to argue that applicants in judicial review claims have insufficient interest to do so ie. that they are not directly affected and so are just busybodies and the courts should dismiss the claim. This is a huge help in challenges to planning permissions on environmental grounds. Applicants do not have to live next door to an environmentally harmful development nor do they have to be experts in the environment to bring a judicial review claim.
The judgement notes:
“Where an application for judicial review involves issues of environmental concern it is not necessary that the applicant demonstrates an expertise in the subject matter. All that is required is that they demonstrate some knowledge or concern for the subject. So an amateur ornithologist or bird-watcher might raise a concern about the potential loss of a bird’s habitat; or a fisherman about the effect of a hydro-electric scheme on fish; or a local historian about the effect on an archaeological or historical site; or a local resident on the loss of a local beauty spot frequented by the local community. In Walton [a legal case] Lord Hope in effect asked the rhetorical question, “Who speaks for the ospreys?”. The answer is whoever can demonstrate a genuine interest in their fate.”
The case was brought by two heroic retired school teacher residents of Barbuda – John Mussington and Jacklyn Frank – but the judgement is relevant to all countries using common law – including Grenada. The defendant was the Development Control Authority, the equivalent of our Planning and Development Authority in Grenada.
The appellants commenced proceedings in the High Court challenging the construction of an airstrip. The Court (Wilkinson J) granted them leave to apply for judicial review and an interim injunction restraining the undertaking of any further works on the airport until further order. The government successfully appealed to the Court of Appeal against the interim injunction, which was then set aside on the ground of procedural unfairness.
The appellants made a fresh application for an interim injunction, which was refused. The appellants then appealed that decision to the Court of Appeal and the government counter appealed on the issue of standing ie. that the appellants did not have sufficient interest to bring the claim. The Court of Appeal handed down judgment dismissing the appeal, allowing the counter-appeal and dismissing the judicial review claim outright on the ground that the appellants had not established their standing to bring the judicial review claim.
The Court of Appeal found that the appellants were not adversely affected by the airport development and so not sufficiently interested to bring a claim. They were not persons with the appropriate qualifications to bring the application on behalf of others who have a sufficient interest. In short, the Court found that the appellants fitted the legal description of busybodies.
The applicants then applied to the Privy Council resulting in this new judgement and allowing our heroes to continue with the judicial review journey.
The judgement also makes it clear that a stance by the defendant that the development is largely completed already and so the claim is moot has no weight and, if the judicial review is determined against the government, that government could be made to demolish the airport and return the land to its previous state. This is serious business!
It is important too that the judgement refers to the “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean”, the Escazú Agreement to which Grenada is a signatory and is legally bound. Amongst other important provisions Article 7 of this Agreement requires public participation in the environmental decision-making process.
This is all very positive stuff for those of us in Grenada who are concerned about the environmental harm that badly conceived developments can cause. If the Mt Hartman Boatyard were to be given planning consent, for example, and we issue a judicial review claim, we cannot be dismissed on the basis of standing or that we are not the world’s experts on chemical contamination. We would be allowed to proceed to argue in the High Court that the Planning and Development Authority had acted unlawfully, unfairly or improperly in its decision. Let’s hope that does not become necessary – again!
Anyone interested can read the Privy Council full background and judgement here:
https://www.jcpc.uk/cases/docs/jcpc-2021-0116-judgment.pdf
And here is a video of the case briefing by Global Legal Action Network (GLAN):
Passcode: 3T4e.uWx
And here’s how the local newspaper greets the news: