Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

A prop­er­ty de­vel­op­er has lost an ap­peal over a de­ci­sion by the En­vi­ron­men­tal Com­mis­sion to is­sue de­c­la­ra­tions against it and or­der it to pay com­pen­sa­tion for de­vel­op­ing a prop­er­ty in Las Cuevas with­out first ob­tain­ing a cer­tifi­cate of en­vi­ron­men­tal clear­ance (CEC).

De­liv­er­ing a judge­ment last week, Ap­pel­late Judges Mark Mo­hammed, Pe­ter Ra­jku­mar and Maria Wil­son up­held the find­ings made by the com­mis­sion in re­la­tion to George Aboud and Sons Ltd and Las Cuevas Prop­er­ties Ltd. 

Ac­cord­ing to the ev­i­dence, in 2004 the com­pa­nies suc­cess­ful­ly ob­tained a CEC for a de­vel­op­ment, but it lapsed af­ter three years be­fore work be­gan on the site. 

An­oth­er ap­pli­ca­tion for a CEC was made in 2014 but was even­tu­al­ly with­drawn in 2019. 

The En­vi­ron­men­tal Man­age­ment Au­thor­i­ty (EMA) re­ceived no­tice that en­vi­ron­men­tal group Fish­er­men and Friends of the Sea had filed a di­rect pri­vate par­ty ac­tion over the de­vel­op­ment. 

The EMA sought an in­junc­tion against the com­pa­nies as it al­leged that they en­gaged in work, in­clud­ing des­ig­nat­ed ac­tiv­i­ties, with­out a valid CEC. 

The com­mis­sion re­fused the in­junc­tion as it not­ed that there was no longer a con­tin­u­ing vi­o­la­tion with re­spect to in­com­plete ac­tiv­i­ty in progress, which could be re­strained. 

How­ev­er, it de­clared that the com­pa­nies had breached the En­vi­ron­men­tal Man­age­ment Act by con­duct­ing des­ig­nat­ed ac­tiv­i­ty with­out a CEC and or­dered the EMA to make an ad­min­is­tra­tive as­sess­ment of com­pen­sa­tion for such. 

Jus­tice Ra­jku­mar, who wrote the pan­el’s judg­ment, stat­ed that the com­mis­sion did have the pow­er un­der the leg­is­la­tion to or­der the as­sess­ment. 

He al­so ruled that the com­mis­sion’s de­ci­sion to is­sue a de­c­la­ra­tion could not be fault­ed even if it did not have the ex­pressed pow­er to do so. 

“Whether the com­mis­sion was on­ly em­pow­ered to so in­di­cate in the body of its writ­ten judg­ment (a ju­ris­dic­tion which it un­doubt­ed­ly had) or whether it was al­so em­pow­ered to re­flect that fact in a de­clara­to­ry or­der to that ef­fect, is ul­ti­mate­ly a ster­ile and mean­ing­less dis­tinc­tion,” Jus­tice Ra­jku­mar said. 

He al­so ruled that the com­mis­sion’s find­ings on the des­ig­nat­ed ac­tiv­i­ty could not be in­val­i­dat­ed based on the ev­i­dence. 

“It has not been demon­strat­ed that the Com­mis­sion’s eval­u­a­tion of the ev­i­dence, in­clud­ing the doc­u­men­tary ev­i­dence, or its ac­cep­tance of the ev­i­dence of the au­thor­i­ty’s wit­ness, and its find­ings of fact based there­on, were plain­ly wrong,” Jus­tice Ra­jku­mar said. 

“Nei­ther has it been demon­strat­ed that there was no ev­i­den­tial ba­sis for the Com­mis­sion’s find­ings of fact,” he added. 

Jus­tice Ra­jku­mar al­so re­ject­ed the com­pa­nies’ com­plaints over be­ing or­dered to pay the EMA’s le­gal costs for the in­junc­tion ap­pli­ca­tion.

He not­ed that the com­pa­nies could not com­plain about be­ing or­dered to pay the EMA’s le­gal costs for the in­junc­tion ap­pli­ca­tion. 

“Noth­ing pre­vent­ed the ap­pel­lants from re­quest­ing of the com­mis­sion, be­fore the tax­a­tion of the costs that it had or­dered, that it al­low the ap­pel­lants to be heard on the in­ci­dence of costs. There is no ev­i­dence that it chose to do so,” he said. 

The com­pa­nies were rep­re­sent­ed by Navin­dra Ram­nanan, while the au­thor­i­ty was un­rep­re­sent­ed in the ap­peal.