High Court Judge Justice Raulston Glasgow has delivered a judgment in a case that could have far-reaching implications for the conduct of Environmental Impact Assessment (EIA) for development projects in Grenada.
The judge handed down his ruling in a case brought by Grenada Land Actors Inc against the government-controlled Planning and Development Authority (PDA) of Grenada.
The judge took issue with the EIA done by companies for some of the major projects on the island – Levera Development, Mt Hartman and La Sagesse as raised by Grenada Land Actors (GLA).
He also chided PDA for the manner in which it was handling its business on behalf of the state.
The case attracted a battery of lawyers Leslie Thomas K.C and former high court judge Rita Joseph-Olivetti for GLA. Sydney Bennett K.C, Aleya Williams and Caryn Adams appeared for PDA, John Carrington K.C, Sheila Harris, Anand Ramlogan SC, Gina Dyer Munro and Daniella Williams-Mitchell as well as husband and wife Darshan Ramdhani K.C, and Sabrita Khan-Ramdhani along with Sydni Walker for the other Interested Parties in the case.
As a public service, THE NEW TODAY reproduces in full the Justice Glasgow ruling that can have implications for major development projects on the island:-
Trevor Thompson’s Witness Summary
[77] Mr. Thompson retired in September 2022, having served in the Ministry of Agriculture, Lands and Forestry of Grenada for 38 years as the Chief Land Use Officer. He was employed in the Land Department for more than 35 years and represented the Ministry of Agriculture on the EIA Committee for 1 and 1⁄2 years since it was re – established under the Act.
[78] Mr. Thompson recited that part of Hartman is designated as a protected area encompassing the Dove Sanctuary, as it borders the Dove Sanctuary, and the sanctuary is protected by law. Mr. Thompson deposed that the developers fenced off the area so that they did not encroach, as there would have been a buffer, which is a certain square footage of land in which there should be no human activity or construction concerning the boundary, referred to as a riparian zone or a setback.
[79] During Mr. Thompson’s last visit to the project in 2022, the developers were in the process of erecting fencing recommended by the Forestry Division, using special material. An initial application for planning approval for a resort complex was submitted in September 2015 and an application for final approval was submitted in November 2015. A detailed EIA was submitted in respect of the project. As far as Mr. Thompson was concerned, the project did not infringe upon the protected area because the developers were aware from the start that the area was protected.
[80] At the time of the 1st EIA for the Hartman area, Mr. Thompson raised issues about the impacts on the environment, and about protection of the coastal assets, especially the mangroves. Mr. Thompson also highlighted concerns about ensuring public access to the beach in conformity with legislative requirements. Mr. Thompson also recommended that the protected areas and other cultural or historical landmarks within the area be preserved to see how the project could enhance access and use by the Grenadian people. The developers were made aware of other cultural and historical landmarks in the area that would need to be preserved.
[81] At the time, Mr. Thompson believed that once the recommendations were adhered to, there would be no negative impact on the environment. A new EIA was submitted for Hartman in January 2021. In Mr. Thompson’s review, the new EIA considered some of the earlier recommendations that had been made on the earlier EIA, and nothing new stood out about the land use for the proposed development. The EIA Committee made further recommendations for rainwater harvesting, but the developer did not provide detailed drawings and sketches at that time.
[82] Up until the date of Mr. Thompson’s departure from the Ministry, only preliminary drawings had been submitted by the developer. However, there was nothing that Mr. Thompson found that went unaddressed and he was satisfied that once mitigation measures were put in place and adhered to, the project would not have a negative impact on the environment.
[83] Mr. Thompson indicated that EIAs were done based on the phases of the project and not for the comprehensive project. He recalled that Hartman started doing temporary structures for their live in staff, and it was recommended that Hartman stop the construction of these structures. Sometime in August 2020, the EIA Committee became aware of unauthorized clearing of mangroves in the area. Mr. Thompson deposed that no works ought to have been commenced at that time, as the final application for the project and the EIA had yet to be submitted or approved by PADA.
[84] Once the EIA Committee was apprised of this, he indicated that they conducted an immediate site visit to assess the state of the site. Mr. Thompson also highlighted that the Committee met with the developers and gave directions for mitigation measures. Up to September 2022, final planning approval was not given for the project. Mr. Thompson noted that numerous EIAs were done that were rejected and sent back for revision, based on the EIA’s Committee’s recommendations.
[85] Mr. Thompson observed that development in Levera had a very long history, and over the years, many applications were made for development on this site and several EIAs had been conducted. He recalled that an application was made for planning permission in principle in December 2019, which was granted subject to almost 7 pages of conditions. The EIA Committee gave special consideration because of the project’s location within the designated RAMSAR site. Mr. Thompson also noted that the RAMSAR area is 518 hectares and not the almost 1,200 that is on the Ramsar website, as 1200 hectares is more land than exists in Levera.
[86] If any development is to occur in that area, Mr. Thompson found that the main concern was ensuring that there are sufficient mitigating measures to protect the wetland. Regarding the earlier EIAs that had been done in the area, he recalled that the concerns were – impact on the Levera pond, the turtle nesting and watching and the access of the public to the area. He pointed out that the developer revised the master plan, reducing the site from 375 acres to 256 acres to ensure that the buffer zone was created and that there were no negative impacts of the development on the pond and the turtles.
[87] Mr. Thompson deposed that the conditional approval in principle was revised to consider those changes. The EIA Committee also recommended several mitigation measures including the type of lighting to be used during and after construction for protection of the turtles, use of the land surrounding the pond and prohibiting the use of chemicals. Once those mitigation measures were adhered to, Mr. Thompson did not foresee any negative impacts on the environment. A sub-EIA was also requested in relation to the proposed jetty, which was to form part of the project. This EIA has only recently been received, and Mr. Thompson deposed that the EIA Committee was in the process of reviewing it. During Mr. Thompson’s tenure, no final application for approval was given for the main project.
[88] Mr. Thompson also deposed that an application for planning approval for the La Sagesse project was made in October 2019 for the development of a Resort and Spa and conditional approval was granted in principle in 2020. An EIA was submitted and while it was being reviewed by the EIA Committee in March 2020, the developer began unauthorised works and contrary to the terms of the EIA that had been submitted.
[89] He recalled that the EIA Committee met on 10th March 2020 and decided to conduct a site visit and to meet with the developers regarding the matter. A meeting was held with the developers on 13th March 2020, and several mitigation measures were directed. Additionally, Mr. Thompson recalled that the developers were required to submit further information regarding water demand, sewerage and waste disposal and a system for public complaints.
[90] Mr. Thompson noted that the EIA Committee then began including the subcontractors who did the unauthorized clearing in meetings and site visits so that they could understand the procedures involved and the effect of their failure to comply with instructions. After this, he recalled that there was a drastic change in the way construction continued with this project, as there wascompliance with instructions and mitigation of damage to the surrounding environment. Mr. Thompson indicated that when the EIA was reviewed, there were several concerns about public access to the pond in the project area and the wetlands, and the general change of use of the area.
[91] Following the EIA Committee’s reviews, Mr. Thompson recounted that several recommendations were made for drainage, pest management, deforestation and fishermen access. He also recounted that the Committee also instructed that the land clearing be phased, and on the EIA Committee’s several visits to the land, they found no arbitrary land clearing. A separate application for planning permission was made in relation to the pond, and Mr. Thompson noted that a separate EIA was completed with respect to the pond enhancement and recommendations were made by the EIA Committee based on the EIA. During Mr. Thompson’s tenure, the EIA Committee continuously monitored all developments at the site to ensure that the development was proceeding only as authorised and that proper mitigation measures were being implemented.
THE INTERESTED PARTIES EVIDENCE HENG SHENG
Kevin Zhu’s Evidence
[92] Mr. Zhu is the Managing Director of Project Construction at Heng Sheng. Heng Sheng is a company incorporated in Grenada and owned by Mr. Yunafa Li, an experienced property developer who hails from the Southwest of China. Mr. Zhu deposed that Heng Sheng was in the initial stages of substantial development of property in Levera. The parish is less developed than other parishes in Grenada and has historical, cultural and environmental importance to Grenada.
[93] Mr. Zhu indicated that Heng Sheng aimed to create a product that would take advantage of the existing natural amenities of the area and bring improved infrastructure, employment and recreational opportunities to residents of the area. He deposed that Heng Sheng has always been conscious of its statutory and environmental responsibilities in developing the hotel and sought to comply with these.
[94] Mr. Zhu recounted that Heng Sheng’s proposed development was a 17-story hotel resort with a casino, 3 villas, a clubhouse, an 18 hole golf course and fisherman’s wharf constructed over 375 acres of land at Levera, reduced from 463 acres. In response to the concerns raised by Dr. Jody Daniel and Mr. Andre Joseph -Witzig in their evidence, he found that they were not relying on facts, but on their own perceptions of reality.
[95] Mr. Zhu lamented that GLA never communicated directly with Heng Sheng about any concerns with the proposed development, and Mr. Joseph – Witzig’s evidence cherry picked what he wished to report, as Mr. Zhu found that he failed to give a balanced view. He averred that Heng Sheng has always complied with its statutory obligations under the Act, and has given its undertaking to do everything necessary to ensure the environmental sustainability of the development.
[96] Mr. Zhu deposed that Heng Sheng applied for approval in principle on 9th December 2019, which was granted on 18th December 2019. On 12th May 2020, Heng Sheng sought approval for a limited development on the Levera site to construct a temporary building, and approval was granted on 23rd June 2020. Mr. Zhu referenced that PADA indicated on 30th June 2020 that permission was only granted for activity on the part of the site that had been cleared. Public consultations were held on 30th July 2020, where Mr. Zhu highlighted that persons made comments for consideration by Heng Sheng and PADA.
[97] On 24th November 2020, Mr. Zhu indicated that Heng Sheng entered a confidential Memorandum of Understanding with the Grenadian Government, which provided for the creation of a buffer zone within the RAMSAR site, with only limited development being permitted therein. On 28th December 2020, he recalled that PADA granted approved in principle of a scaled down version of the Levera development.
[98] Mr. Zhu referenced that on 6th April 2021, further public consultations were held, and Heng Sheng presented its new proposal for development with measures to safeguard the natural environment and reduce the potential effects of the development. These included introducing solar power, rainwater harvesting, reuse of grey water, a 1/3 reduction of the development, the relocation of the proposed jetty from the beach, and further studies on the introduction of mitigation measures.
[99] Mr. Zhu recalled that PADA gave Heng Sheng permission to develop the golf course on 25th May 2022 and permission to develop the resort was granted on 15th June 2023, after the RAMSAR site has been delineated and updated. By this time, Mr. Zhu highlighted that the EIA reports had been completed and submitted to PADA, after the consultant gave the undertaking that all concerns would be considered.
[100] Mr. Zhu indicated that GLA’s evidence was incorrect, as development permission was granted to Heng Sheng after consideration of ecological and other studies, and final planning approval was only given after the completion of the EIA. He insisted that the proposed development does not encroach on the boundaries of the RAMSAR site, and highlighted the newspaper report of 7th September 2020, which referenced the measures that were being taken to minimize the effect of the development.
[101] Mr. Zhu further noted that the PADA register could not have stated that the Levera development was approved on 23rd June 2020, as final approval was only given with conditions in June 2023. Mr. Zhu concluded that there were also at least 2 public consultations in July 2020 and April 2021 about the project, and Mr. Joseph – Witzig never approached Heng Sheng about the slides and tables, which he was unable to read at the consultations.
Nigel Niles’ Evidence
[102] Mr. Niles is the Managing Director of Niles & Associates Limited, the company hired by Heng Sheng to conduct an EIA in relation to the Levera project. He was primarily responsible for preparing the environmental impact study for the EIA. Prior to conducting the EIA, he provided Heng Sheng with an environmental profile for the Levera project for submission to PADA, which was approved and formed part of the preliminary approval for the Levera project.
[103] Mr. Niles recounted that terms of reference for the conduct of the EIA were produced by PADA’s EIA Committee, after it conducted its own investigations as to what was required for a project of this nature. He recalled that these guided the conduct of the EIA, which covered issues that PADA needed to be addressed including marine issues and the need for public consultation. Mr. Niles indicated that he attended the site and conducted all relevant surveys, analyses and consultations over a period of time. This was done to give effect to the terms of reference.
[104] A final EIA report for the whole project was submitted to Heng Sheng in March 2021, together with detailed drawings. Mr. Niles recalled that this EIA was then submitted to PADA. After PADA’s consideration, the EIA and project were approved. In response to Mr. Joseph – Witzig’s evidence about the EIA’s inadequacies, Mr. Niles recounted that Niles & Associates complied with PADA’s Terms of Reference and thereafter PADA granted approval, and the project as a whole evidenced satisfaction of the EIA. Mr. Niles observed that 3 parties can offer their opinions of best practice, but PADA ultimately determines whether it is satisfied.
[105] Mr. Niles further indicates that the EIA produced by Niles & Associates covered the entire project, including the golf course as it was then designed, and the general issues about the golf course were addressed to PADA’s satisfaction. He pointed out that Niles & Associates provided an EIA for the jetty on 20th January 2021, based on the design and location given to them at the time they were engaged, and the advice given was professional, adequate and met PADA’s approval. Mr. Niles concluded that the EIA produced by Niles & Associates was approved by PADA under its powers and should be regarded as adequate for its purposes as required by the Act.
HARTMAN GROUP
Cherelle Bain’s Evidence
[106] Ms. Bain is Hartman’s in house legal counsel. Ms. Bain deposes that Hartman Group has complied with all of the legal requirements of the Act. She concluded that any issues raised by PADA were promptly addressed, as the plans and designs of Hartman Group addressed GLA’s concerns.
RANGE
Kamal Shehada’s Evidence
[107] Mr. Shehada is a businessman and one of the beneficial owners of Range Development and the La Sagesse project. He deposed that Range is a company incorporated in Grenada and the land on which the La Sagesse project is located is owned by Range as is evidenced by Deed of Conveyance dated 19th March 2019. He recounted that Range applied by letter of 5th February 2019 to PADA in the required format as set out in the Act. On 28th February 2019, Mr. Shehada noted that PADA granted approval in principle to Range for the project. On 29th January 2020, he recalled that PADA granted final approval to Range, who abided with all the conditions which attached to the planning permission.
[108] Prior to and throughout the construction phases, Mr. Shehada insisted that Range engaged in public consultation by holding town hall meetings, meetings with farmers, and local community persons who they now know are the principals of GLA. On 2 scheduled dates, he recalled that none of GLA’s representatives attended any public consultations, but all concerns otherwise raised were addressed by Range. In his eyes, these meetings made clear that persons from GLA were not willing to engage with Range scientifically or technically, as they had a predetermined agenda and it seemed that the environmental issues raised were a smokescreen for their real intentions.
[109] Mr. Shehada reaffirmed that Range held various public consultations and raised awareness through television and radio programs which Mr. Shehada attended and hosted. He referred to several email communications with persons, including those from GLA, and communications through social media platforms including Facebook. Mr. Shehada deposed that he shared information and communicated with 2 persons involved in the matter, Dr. Daniel and Mr. Joseph – Witzig. Apart from Dr. Daniel, Mr. Shehada lamented that Range does not know who are the persons connected to GLA.
[110] On the issue of the EIA, Mr. Shehada responded that Range had conducted the required EIAs for the project including marine studies and water testing on a regular basis. He recalled that Dr. Daniel approached him personally via email and social media in her individual capacity, and Range shared various communications with her including reports pertaining to the project’s development during 2020. It is Mr. Shehada’s belief that GLA became an incorporated entity wholly to pursue this action, as it was incorporated only a few days prior to the commencement of the claim in April 2021, 1 year and 3 months after PADA granted final approval to Range on 29th January, 2020.
[111] Range also has video footage of the former owner of the land, Dr. Mitchell, indicating at a town hall meeting that for all his 70 years, he has never known the pond, referred to as a salt pond, to actually be a salt pond. Mr. Shehada recited that Range, in its continued awareness of the protection of the environment, took the initiative to these concerns and caused the pond to be tested. Mr. Shehada indicated that these tests have not provided evidence that the pond is in fact a salt pond.
[112] Mr. Shehada further deposed that when the land was purchased, the pond was backfilled and full of garbage. Range cleared this debris away and dug out the pond. Range’s understanding from the former owner was that the pond was in that condition since he purchased the land from the vendor before him. He indicated that Range extracted 250,000 lbs of garbage and 100, 000 cubic yards of sludge from this pond, which enabled them to conduct tests on the pond and the water in it.
[113] Mr. Shehada recounted that it is only due to the environmental enhancement and improvement work done by Range that marine life is present and the birds have a clean nesting ground. Mr. Shehada insisted that the removal of garbage and sludge also prevented it from future escape onto the beach. He mentioned that Dr. Daniel referenced in her evidence that the lake was higher than the sea, so that overflow would have happened. Thus, through its work, he challenged that Range averted a disaster. Mr. Shehada admitted that mangroves were removed by a subcontractor in error and the removal facilitated the cleaning, clearing, sludge and garbage removal to provide for a fresher cleaner environment. Mr. Shehada reported that Range has since replanted these mangroves and there is a dedicated nursey for replanting of mangroves once the project is completed.
[114] Mr. Shehada recalled that throughout construction, the public was granted continued access to the La Sagesse beach and no one has ever been prevented from doing so by Range. However, he cautioned that persons would be best advised not to use this beach area, as there were rough seas, riptides and under currents in the water. Mr. Shehada also pointed out that Range has provided numerous jobs to the Grenadian work force and continued to do so, with approximately 200 – 300 permanent jobs, the provision of a car park and recreational and toilet facilities.
[115] Mr. Shehada reiterated that GLA’s principals sat back for more than a year after Range had done significant development works, then incorporated themselves into a legal entity to mount a challenge on the La Sagesse and the other 2 developments. He further indicated that GLA has no track record of work done in environmental protection or advocacy, except in seeking to challenge all major developments across the island. He noted that Range has now completed approximately 95% of the development works, the remainder of which will be completed by the end of 2023, with a proposed opening date of February 2024.
ISSUES FOR THE COURT’S DETERMINATION
[116] The following are the issues that arise from GLA’s claim, PADA’s response and the evidence of GLA, PADA and the 3 Interested Parties before the court –
(1) the concerns about evidentiary matters;
(2) GLA’s claims about the public register;
(3) GLA’s claims about the lack of regulations;
(4) Whether PADA was required to conduct public consultations;
(5) Whether PADA was required to give reasons for its decision to grant planning permission for the 3 projects;
(6) Whether the decisions made by PADA with respect to the La Sagesse, Levera and Hartman developments were impugned by illegality, irrationality, procedural unfairness and/or in breach of legitimate expectations;
(7) Whether GLA has standing to bring this claim;
(8) Questions of delay; and
(9) What, if any relief, should be granted to GLA.
[117] In the interest of avoiding repetition and prolixity, issues 1-5 above will be discussed collectively. The remaining issues will thereafter be examined in turn. The court has determined these issues, considering all of the pre-trial and post-trial submissions of GLA, PADA and the 3 Interested Parties.
THE CONCERNS ABOUT EVIDENTIARY MATTERS
[118] The crux of the complaint on this issue involves the evidence given by Mr. Andre Joseph-Witzig and Dr. Jody Daniel on behalf of GLA, and more particularly the EIA review reports prepared by GLA/GAEA and exhibited to their evidence. This concern was initially raised on the first day of trial on 2nd October 2024 by PADA’s counsel and the Interested Parties.
[119] Counsel raised many concerns about the evidence of these 2 witnesses, submitting to the court that these witnesses presented themselves as experts on various environmental matters in the claim, and have presented expert reports to the court, without having first sought leave to do so. GLA’s evidence, which I have recited extensively above, consists in the main of their views on the adequacy of the EIAs as outlined in their reports and of the overall evaluation and determination process undertaken by PADA in granting planning permission.
[120] All parties eventually concurred during the trial that some of the evidence may amount to opinion evidence. PADA and the Interested Parties have insisted that this evidence is not admissible and, even if admissible, very little or no weight ought to be attached to it. GLA’s posture on the issue changed significantly as the matter progressed.
TO BE CONTINUED