St. Johns Antigua – A UK-based Privy Council hearing has highlighted several critical deficiencies in the due process surrounding the construction of a new international airport runway on the island of Barbuda.
When lawyers representing the interests of the Government of Antigua and Barbuda and the Barbudans appeared before five privy council Lords on November 8, it was revealed that work began on the construction of the airport runway without an approved Environmental Impact Assessment (EIA) as required by the country’s Physical Planning Act, without public consultation, and with no way of properly informing and allowing the public to comment on the proposed project before it began.
“Closing the stable door after the horse has bolted” was a steady theme agreed on by both the lawyer for the Barbudans and Lord Hodge, Lord Sales, Lord Leggatt, Lord Burrows, and Lord Boyd regarding the development process.
The hearing, held in London, is a culmination of almost five years of legal battles, and sought to determine whether two Barbudans – Jacklyn Frank and John Mussington – have standing to pursue judicial review proceedings against the decision of the Development Control Authority (DCA) and the Antigua & Barbuda Airport Authority to grant development permits to companies which were tasked with constructing the runway.
Marc Willers KC, who represented the Barbudans said both EIAs which were eventually presented to the DCA were woefully lacking in content and scope. Despite this, it appeared that the approved permits were authorized without condition as to how work should move forward. “I am not aware that the conditions have been specified,” Dorsett said explaining that “There was one occasion, and I can state on the record, that full scale approval was granted”.
“One might conclude, I respectfully submit fairly, particularly given the absence of evidence disclosed by the respondents, this is shambolic, it’s totally unsatisfactory,” Willers remarked.
One Lord commented that “the work was steaming ahead all this time until there was an injunction granted to stop it, before the decision was taken and then before the process has gone through to decide whether it ought to have been taken.”
The Privy Council heard that the development had destroyed critical habitat for some of Barbuda’s wildlife – including the endemic Barbuda warbler, the fallow deer, the red-footed tortoise and the magnificent frigatebird. Flora includes the white wood tree – the national tree.
On December 4, 2017, Chief Environment Officer, Dianne Black Layne wrote a letter addressed to the Chief Town and Country Planner at the DCA, Frederick Southwell reporting the findings of a site visit conducted on November 28, 2017 – less than two months after Hurricane Irma destroyed Barbuda. According to that report, work on the project was well advanced and environmental degradation had already begun in the absence of an environmental management plan.
The letter also referenced an EIA dated June 26, 2017 which accompanied the developer’s application. But the department said there were significant gaps in the document including aspects that would safeguard against negative environmental impacts.
Despite the concerns of the DoE, Willers noted that none of the three permits granted by the DCA were ever revoked by Southwell even though he had lawful authority to do so.
Dr. David Dorsett who represented the development authority and the Attorney General openly admitted to these deficiencies during his presentation. “There are certain deficiencies that this case brings to light,” he stated.
According to the attorney, there was no development plan presented for the project nor was he was aware of any steps taken under the Physical Planning Act to give notice of the development application. “Perhaps its not a pretty state of affairs that there was no open consultation or announcement,” he noted but stressed that the action “was not illegal”. “Perhaps what the Town and Country Planner did, by failing to provide notice of the application to defend the airport may have been unwise but not unethical.”
During the hearing, it was also revealed that there had been no public consultation apart from Dorsett claiming that Barbudans had “knowledge” of the new airport when they attended a village council meeting to discuss an economic development model for Barbuda.
“As part of this new economic development, there was included as part of this whole project, reference to the new airport.” I cannot say that that consultation strictly complied to any requirement under the act but I think it’s fair to say that the idea of the new airport didn’t come like a thief in the night.”
Dorsett said that there was also no environment registry in place at the time, making it impossible for interested parties to review the required EIA.
“It’s a bit difficult to challenge the EIA when one doesn’t get an opportunity to really see it,” Willers remarked.
A public consultation would have allowed residents to become familiar with the project and allow them an opportunity to voice their concerns. Subsequently, residents should have been formally invited to submit comments and concerns about the proposal.
“There is no evidence that the Chief Town & Country Planner did any of these things and that rather stymied the appellants’ ability to comply formally with the Physical Planning Act and led to them taking other means and other steps in order for them to make their objections known,” Willers concluded.
Argument on the issue of standing and counter arguments
The roots of this case trace back to 2017 when the Government of Antigua and Barbuda decided to embark on the construction of a new airport on Barbuda. In July 2018, the Development Control Authority (DCA) granted a development permit for the airport project.
Frustrated by this decision, Jacklyn Frank and John Mussington sought leave to file judicial review proceedings challenging the DCA’s approval and an interim injunction to halt airport runway construction. While the High Court granted both requests, the Court of Appeal later set aside the injunction.
In September 2018, the appellants filed a fresh application to the High Court for an interim injunction. In February 2020, the High Court rejected this request. The appellants then turned to the Court of Appeal, with Mussington counter-appealing against the High Court’s decision that they had standing to apply for judicial review.
The Court of Appeal ultimately rejected the appellants’ appeal, agreeing with Mussington’s counter-appeal that they lacked standing to pursue judicial review against the DCA’s development permit.
On Wednesday, Willers argued that his clients, Frank and Mussington, are “personally and directly affected” by the construction of the runway. He argued that despite the government agencies acting unlawfully, they participated the best they could in the planning process by attempting to do a number of actions including; visiting the site to ask of a development permit, writing to Prime Minister Gaston Browne expressing their concern, and attempting to contact Frederick Southwell at the DCA and the Department of Environment to request information about the development.
He surmised that the appellants, particularly Mussington’s expertise and knowledge of the area, made him a good candidate to challenge the development.
Dr. Dorsett on the other hand suggested that the retired teacher and marine biologist, doesn’t have much interest nor expertise in the area of airport development and as a result would not qualify to take the case before the court. “What he has put forward as his expertise is that of being a marine biologist and this is the development of the airport … him being a marine biologist in and of itself is insufficient to meet the evidentiary requirement to act in the public interest.”
“What is required is having a sufficient interest in the matter,” he stated, adding that “having a strong and sincere interest in environmental issues does not put you over the threshold.”
However, the lords argued otherwise, insisting that the case is of importance to every single Barbudan who will be affected by the airport development. “Now is that realistic. Are there going to be people on the island of Barbuda with expertise in airport development,” questioned one lord.
“He may not have expertise but he surely has interest in living on a small island which happens to have its fauna and flora disrupted by major construction carried out unlawfully,” remarked another.
“The island is small and Mr. Mussington, for example lives within a couple of miles of what will be a busy airport,” said another who also questioned who has a sufficient interest if not someone living near a major development. “It seems to be that nobody has a right to challenge the government’s unlawful activity,” another lord suggested.
Meanwhile, Hugh Marshall Jr., the attorney representing the Antigua & Barbuda Airport Authority was the last to take the stand, making the case that opposed to seeking judicial review, the appellants could seek remedy through administrative proceedings. “Our challenge to the appellants, is not that they cannot bring an action to challenge the compliance of the authority to the Physical Planning Act, but by the method they have chosen to come.”
He argued that that judicial review should be a last resort effort and instead suggested that Frank and Mussington could bring a simple action for declaration. (references AG and Isaac)
Like Dorsett, he too was not convinced that the two Barbudans were personally affected by the runway construction saying that they needed to show how they were personally affected by the development. “I had difficulty in discerning whether they were coming for themselves personally or alternatively as a public interest.”
In further arguing the issue of standing, Marshall Jr. said “two miles is a long way”, suggesting that on an island so small, distance is relative. “The Court of Appeal found that the appellants did not work, did not reside, and had no connection with the property being developed,” he argued.
A lord on the panel rebutted saying that Frank and Mussington would “almost inevitably” be affected by the development precisely because of two-mile radius. Additionally, since there was no acoustic assessment outlined in the EIA to determine the area and impact of noise levels on the community, there was no way to say precisely who will be affected once the airport opens.
In making their decision, the lords will consider what permissions had been granted to the developers including whether those permissions were conditional or full, whether the relevant laws were followed and if not, if failure to comply to those laws left the Barbudans with no other option but to take the matter to court.
All responses and papers from the appellants and the respondents are to be filed in 14 days, after which the decision will be made.
Meanwhile, Marshall Jr. disclosed that the airport is scheduled to commence operations later this November.
Runway Construction Timeline
In 2017, Bahamas Hot Mix (BHM) signed a Memorandum of Understanding (MOU) with the government and began to construct a 6,100 linear feet runway for a fixed price of US$15.9 million
- BHM stopped work after the Barbuda People’s Movement (BPM) was granted a temporary injunction by the High Court in 2018 that the government said came at a “heavy cost” as machines were deliberately damaged and workers were unable to work for a month.
- The injunction followed an application from the BPM which claimed that the Department of Environment (DoE) had warned the government of environmental risks but the Development Control Authority (DCA) and the Antigua & Barbuda Airport Authority (ABAA) went ahead with the development.
- The injunction was lifted a month later and BHM was able to almost continue construction of the runway until mid-2019 when they removed all equipment from the site because the government did not have the money to complete the project even after BHM spokesman Jimmy Fuller said the company “heavily discounted” the asking price.
- Fuller said while no work was ongoing it cost the company US$10,000 every day to maintain its personnel and equipment. The runway was 80 per cent completed at the time.
- The principals of Peace, Love, and Happiness (PLH) which trades as Barbuda Ocean Club entered into an agreement with the government to complete the airport runway and an airport terminal at the new site outside of Codrington, Barbuda in August 2020.
- In October 2020, Cabinet granted PLH a fixed-based operation (FBO) to build and manage passenger transportation and indirect aircraft services
- In August 2023, the Cabinet of Antigua & Barbuda announced that it intended to extend the runway by more than 1,000 feet to accommodate commercial jets. Lionel Hurst, Chief of Staff in the Prime Minister’s Office told IPB that “the land is already within the airport boundaries”
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