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Privy Council Grants Appeal for Barbudans in Airport Development Case

The London-based Privy Council rules that two Barbudans can bring a case against Antigua and Barbuda’s Development Control Authority.

The law lords at the London-based Privy Council – Antigua and Barbuda’ final court of appeal – have granted an appeal for two Barbudans -John Mussington and Jacklyn Frank – to take the Development Control Authority (DCA) to court for breaching legal requirements when it gave permission to the government’s development partner Peace Love and Happiness (PLH) to construct an international runway on the small island.

After more than three months of waiting, the judgement handed down Tuesday morning concluded that “The Board will humbly advise His Majesty that the appeal should be allowed.”

The case can now be taken back to the High Court of Antigua and Barbuda where the duo will have the chance to finally argue that the DCA acted unlawfully and improperly during its process of granting the development permit for construction.

The privy council Board disagreed with the Eastern Caribbean Court of Appeal’s earlier decision that Mussington and Frank did not have “sufficient interest” in the case and therefore had no authority to argue it before the courts.

In essence, the local court had deemed the Barbudans as ‘busybodies’ who were not adversely affected by the airport development and who were not persons with the appropriate qualifications to bring the application on behalf of others who have a sufficient interest.

The duo’s lawyers on-the-other-hand had submitted to the local court that they did in fact have sufficient interest in the case as they are people adversely affected by the development and therefore had sufficient interest to apply to ask the local court to review the DCA’s actions and declare an order. They also stated that it was inappropriate to determine the issue of standing (who has the the right to bring the lawsuit) at the pre-trial stage.

In explaining its decision, the Board was guided by a case study presented by the lawyers – Walton v Scottish Ministers [2012] – when they sought to make a case for standing. The local appeals court had dismissed the case study as being irrelevant, but the Board said “it is apparent that the Court of Appeal erred in taking too narrow an approach to the issue of standing’’ which forced it to reach its own conclusion.

The court’s decision also means that it did not believe, as raised by the DCA’s attorneys, that the case was “academic’’and that the attorney general was not a proper party to the proceedings.

“The airstrip had been substantially completed, as had the terminal building and it was contemplated that the airport would shortly be operational. Even if the airstrip was built in violation of development control the airstrip could not be “unbuilt,” they argued last November before the Council.

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However, in response the law lords explained that the completion of the airstrip and terminal building does not render the matter moot, as it directly pertains to whether the DCA exceeded its powers in granting the development permit. The court emphasized that if the DCA is found to have acted unlawfully, it would be up to the court to determine appropriate remedies, including potentially restoring the land to its original state.

Regarding the attorney general, Hugh Marshall Jr.’s argument last November was that the sitting AG, Sir Steadroy Benjamin was not party to the judicial review proceedings as the Government of Antigua and Barbuda did not take any of the impugned decisions.

But the Board decided that the decision to build an airport on Barbuda was taken by the Cabinet. The Government made the application for the development permit on 13 July 2018. It is the holder of the development permit and has a clear interest in any remedy that may be imposed if the appellants are successful.

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