Fishermen and Friends of the Sea v The Minister of Planning, Housing and the Environment

The Polluter Pays Principle requires charges for polluting activities to internalise environmental costs. Under the National Environmental Policy, money collected as permit fees must be available for the Authority itself to finance or contribute to correcting environmental damage. Polluter expenditure on permit conditions and recovery of administrative costs do not by themselves satisfy that requirement. A prescribed fee need not be a single fixed sum; it may be calculated by a formula or include a remediation element. The Minister must exercise independent judgment, while considering expert advice, and must reconsider relevant policy and alternatives when regulations are made. Ignoring these matters breaches section 31 of the Environmental Management Act 2000. The appropriate remedy may be declaratory relief and mandamus without invalidating past permits or fees.

The appellant, a public-interest environmental organisation, challenged fixed annual water-pollution permit fees imposed under the 2006 amending regulations. It argued that the fees failed to comply with the Polluter Pays Principle in the National Environmental Policy and that the Minister had not properly considered the policy, the Water Pollution Management Programme or alternative fee models.

Rampersad J allowed the judicial review claim and declared the fee methodology illegal. The Court of Appeal allowed the Minister’s appeal. The Privy Council considered whether the policy required collected fees to fund correction activities by the Authority and whether the Minister had exercised her own statutory judgment.

1. Appeal allowed. Lord Carnwath, giving the judgment of the Board, held that paragraph 2.3(b) of the National Environmental Policy had to be given separate effect according to its natural meaning. It concerned the Authority’s use of money collected through fees to finance or contribute to correcting environmental damage. It was insufficient that polluters spent their own money complying with permit conditions or that fees recovered only the administrative costs of the permitting system (paras [41]-[45]).
2. The interpretation was supported by the functions of the Authority under section 16 and the purposes and resources of the Environmental Trust Fund under sections 72 and 74 of the Environmental Management Act 2000. The policy did not prescribe the precise extent or form of provision for future correction activities, which remained matters for the Minister’s judgment. The correction-funding element could not lawfully be ignored. The evidence supported the inference that it had been ignored in both 2000 and 2006, so the regulations breached section 31 (paras [42]-[45]).
3. A prescribed fee under rule 8(2) of the Water Pollution Rules, defined by rule 2 and made under section 96(2), did not have to be a single fixed figure. It could be prescribed by a formula that treated different situations differently, or could be a fixed fee containing an element for future correction activity. If the Rules constrained proper compliance with the National Environmental Policy, they would themselves require amendment (para [44]).
4. The Board separately held that the Minister and Authority had distinct statutory functions. The Minister could take account of expert advice from the Authority, but the statutory judgment remained with the Minister. The Court of Appeal had wrongly inferred continuation of an earlier policy and relied on a presumption of regularity. Bhagwandeen v Attorney General of Trinidad and Tobago [2004] UKPC 21 arose in a different context, and Bushell v Secretary of State for the Environment [1981] AC 75 did not govern the relationship between bodies with distinct statutory identities and functions (paras [46]-[51]).
5. The appropriate remedy was a declaration that the prescribed permit fee was unlawful and mandamus requiring the Minister to reconsider the fee and make amended regulations. The regulations were not to be quashed, and the order was to preserve the validity of earlier permits, fees and enforcement action pending amendment (paras [52]-[54]).

1. Privy Council: In [2017] UKPC 37, the appeal was allowed.
2. Court of Appeal of Trinidad and Tobago: On 16 July 2015, the court allowed the Minister’s appeal from the High Court. Final leave to appeal to the Privy Council was granted on 15 February 2016.
3. High Court: On 18 October 2012, Rampersad J allowed the judicial review claim, declared the fee methodology illegal and ordered that the 2006 amendment regulations not be implemented or enforced unless properly reconsidered.