It won’t be the first time that the findings of a court decision have led to the demolition of properties and it certainly isn’t a farfetched result for the Barbuda Airport as one would think.
The Privy Council Lords have suggested that the entire airport runway on Barbuda might face demolition if it is revealed that illegal practices and non-compliance with the law led to its construction on environmentally unsuitable land.
Of course the decision is to be made by Antigua and Barbuda’s local court, but the Lords noted that there is certainly precedence of rulings leading to the restoration of areas.
During a hearing in London on Wednesday, the Lords said it is one possible outcome if the Development Control Authority (DCA) in Antigua and Barbuda, exercises its authority to return the area to its natural state. “The enforcement authorities would have power to have the airstrip torn up and the land restored, as far as it could be, to its pristine state,” remarked one of the Lords, who reminded government’s attorney Dr. David Dorsett that the DCA and other concerned agencies have statutory power to enforce planning law.
“I suspect ripping up an airport is an unlikely outcome but never-the-less, if that permission that has been granted is declared a nullity, then all the appropriate condition to protect the environment, in relation to the operation of the airstrip, and the drainage of water, the protection of the water supply which may affect the village – all these issues could be properly aired publicly and imposed by conditions,” he went on to explain.
Local residents claim that the airport development encroached upon critical habitat, hosting species such as the Barbuda warbler, fallow deer, red-footed tortoise, magnificent frigatebird, and the national white wood tree.
The court is expected to rule on a judicial review matter that may led to a rehearing of the original case against the Antigua government.
Wednesday’s Privy Council hearing marked the culmination of nearly five years of legal battles. The decision, expected in the coming weeks, will determine whether two Barbudans, Jacklyn Frank and John Mussington, have standing to pursue judicial review proceedings against the DCA and the Airport Authority which granted permits to companies that were tasked with constructing the runway.
They aim to demonstrate that government agencies, particularly the Development Control Authority (DCA), acted unlawfully when granting permits for the new airport runway on Barbuda. They accuse the agencies of multi-department failure to comply with regulations, including failure to complete required environmental impact assessments (EIAs), incomplete submission of proposed plans, failure to receive Barbuda Council approval of the proposed plans, and instances where the government ignored its own reports of risk to the island.
However, before that case can proceed, the lawyers representing Frank and Mussington must convince Privy Council judges that they have the right to challenge the government’s actions in court, arguing that they are directly affected by the development. A verdict is anticipated in the coming weeks.
Meanwhile, the recent privy council hearing revealed a number of unlawful practices including that work began on the construction of the airport runway without an approved Environmental Impact Assessment (EIA), without public consultation, and with no way of properly informing and allowing the public to comment on the proposed project before it began.
Airport Already Constructed?
During the hearing, the Lords dismissed arguments from the government’s attorney, Dr. David Dorsette, who insisted that the court’s decision would be “purely academic” as the airport was already complete. The Lords stressed that even if the airstrip remains, stringent environmental conditions must be applied to protect the local community and Barbuda’s flora and fauna.
“Your case seems to be that because your client half-built the airstrip without even applying for permission and then managed to complete it, therefore the court should just do nothing. It’s one of the least attractive submissions I think I’ve heard in the Privy Council,” remarked a Lord.
In the case of demolition or alterations, the Lords outlined that any reconstruction, including the pending new airport, would need proper permissions and conditions ensuring the health and environmental safety of Barbudans. “If it were to be the case that the appellants were to make out an illegality on the basis that there had been a failure to consult under Section 22(3) of the planning act, and therefore the permission itself was ultra vires and illegal, their permission would be a nullity and the government would have to apply again to give itself permission to create the airport.”
The Privy Council to consider whether the Attorney General should be named in Judicial Review
Dr. David Dorsett argued before the Privy Council that Attorney General Sir Steadroy Benjamin should not be named as a respondent in the judicial review. Dorsett contended that Benjamin, having taken no active steps in the permit process, should not be obligated to mount a defense. “The attorney general is not a proper party to the judicial review proceedings because there is not under challenge, a decision made by the attorney general,” he argued.
According to Dorsett, there was insufficient opportunity to challenge the AG’s non-standing during the initial High Court proceedings and they failed to raise the issue before the Court of Appeal, before the case was “tossed out.” “At that time the focus was on having the inunction lifted,” he replied when one of the Lords suggested that the issue could have been raised as soon as he was served with the proceedings.
Now, the Privy Council must weigh whether, as a representative of the government, Benjamin should remain implicated in the ongoing judicial review. The AG has declined to comment on the argument.
Government lawyers had previously attempted to strike out the Antigua and Barbuda Airport Authority as a culpable party to the judicial review proceedings in September 2019. The Eastern Caribbean Court of Appeals later reversed this decision, affirming the authority’s involvement in the case.
