Derek Achong

The Court of Ap­peal has re­served its de­ci­sion in an ap­peal over the abil­i­ty of the En­vi­ron­men­tal Man­age­ment Au­thor­i­ty (EMA) and the po­lice to shut down au­tho­rised events due to noise lev­els.

Ap­pel­late Judges Al­lan Men­don­ca, Prakash Moo­sai and Gillian Lucky said they need­ed time to com­pre­hen­sive­ly con­sid­er the is­sue af­ter hear­ing sub­mis­sions from the EMA and event pro­mo­tion com­pa­ny Wild Goose Lim­it­ed dur­ing a vir­tu­al hear­ing yes­ter­day morn­ing.

In the ap­peal, the EMA is chal­leng­ing a de­ci­sion of High Court Judge Mar­garet Mo­hammed, who last year up­held the com­pa­ny’s case over the shut­down of its Tail­gate Car­ni­val event in 2019.

Ac­cord­ing to the ev­i­dence in the case, the event at the Queen’s Park Sa­van­nah in Port-of-Spain on Feb­ru­ary 26, 2019, was shut down al­most two hours ear­ly af­ter the com­pa­ny’s of­fi­cial, Khama Tay­lor-Phillip, was al­leged­ly re­peat­ed­ly warned the event was ex­ceed­ing deci­bel lev­els set in a Noise Vari­a­tion grant­ed by the EMA.

Jus­tice Mo­hammed ruled that the EMA did not have the pow­er to take such ac­tion, as the En­vi­ron­men­tal Man­age­ment Act pre­scribes a pro­ce­dure for deal­ing with noise vari­a­tion vi­o­la­tions which in­cludes is­su­ing a writ­ten warn­ing and ob­tain­ing an in­junc­tion.

Pre­sent­ing sub­mis­sions on be­half of the EMA, its at­tor­ney Kelvin Ramkissoon claimed that un­der Sec­tion 68 (c) of the En­vi­ron­men­tal Man­age­ment Act, the au­thor­i­ty al­so had the pow­er to “pur­sue any oth­er rem­e­dy which may be pro­vid­ed by law” to ad­dress a vi­o­la­tion.

He claimed that when EMA of­fi­cials and mem­bers of the En­vi­ron­men­tal Po­lice Unit re­peat­ed­ly warned Tay­lor-Phillip about the noise lev­els, an an­nounce­ment was made which re­sult­ed in pa­trons shout­ing abu­sive state­ments at them.

He claimed that when the po­lice of­fi­cers gave in­struc­tions that the mu­sic should be switched off, they were re­spond­ing to a breach of the peace by the pa­trons.

“There is a du­ty to abate the nui­sance,” Ramkissoon said.

He not­ed that the oth­er op­tions avail­able to the EMA and the po­lice were not prac­ti­cal in the cir­cum­stances.

“Par­lia­ment can­not leg­is­late for every sit­u­a­tion,” he said.

Re­spond­ing to the sub­mis­sions, the com­pa­ny’s lawyer Christophe Ro­driguez stat­ed that the case was cor­rect­ly de­cid­ed, as Jus­tice Mo­hammed con­duct­ed an ex­ten­sive analy­sis of the ev­i­dence of what tran­spired.

“The EMA will have to prove that the judge was plain­ly wrong,” Ro­driguez said.

He claimed that his client could not be said to be in breach of the noise vari­a­tion that it was grant­ed un­til the EMA pre­pared a ses­sion re­port at the end of the event, in which it cal­cu­lates the av­er­age deci­bel lev­el.

In her judge­ment, Jus­tice Mo­hammed re­ject­ed claims that the ac­tion fell un­der the EMA’s emer­gency pow­ers.

“In the in­stant case, there was no co­gent ev­i­dence from the First De­fen­dant (EMA) that as a con­se­quence of the Claimant be­ing in vi­o­la­tion of the Noise Vari­a­tion, there was a threat to the life of per­sons at the event or in sur­round­ing ar­eas, a pub­lic dis­as­ter, or eco­nom­ic ru­in of the coun­try,” Jus­tice Mo­hammed said.

Jus­tice Mo­hammed al­so ruled that the po­lice did not have the pow­er un­der the Po­lice Ser­vice Act or Sum­ma­ry Of­fences Act as claimed.

“At best, those reme­dies in law au­tho­rised the said of­fi­cers ‘to ar­rest with­out a war­rant’, any per­son at the event if they had rea­son­able and prob­a­ble cause to be­lieve that the said per­son had com­mit­ted the of­fence of a breach of the peace, a pub­lic nui­sance, or any oth­er crime or breach­es of law,” she said.

While Jus­tice Mo­hammed ruled that the com­pa­ny’s con­sti­tu­tion­al right to pro­tec­tion of the law was breached by the ac­tion, she did not award dam­ages, as the com­pa­ny failed to ad­e­quate­ly prove the loss­es they claimed they in­curred.

How­ev­er, she did or­der the EMA and the po­lice to pay $30,000 in vin­di­ca­to­ry dam­ages.

The com­pa­ny was al­so rep­re­sent­ed by Rhy­jell El­lis, while Rhea Robin­son ap­peared along­side Ramkissoon for the EMA.

The Court of Ap­peal is ex­pect­ed to de­liv­er its judge­ment in the case on a date to be fixed af­ter the par­ties file ad­di­tion­al writ­ten sub­mis­sions.