Fishermen and Friends of the Sea v Environmental Management Authority and others

Applications for judicial review must be made promptly and within the statutory three-month limit. For certiorari, time runs from the decision itself, even if it was not publicised or known to the applicant. An extension requires good reason, and an appellate court interferes with the first-instance discretion only for a flaw in reasoning. Public-interest status does not justify a relaxed approach to delay. Preliminary consultation on draft terms of reference for an environmental impact assessment is not generally mandatory where later statutory consultation remains available. Cumulative-impact assessment may be deferred for uncertain future project phases, provided the authority has considered the issue rationally. Environmental approval is iterative, and conditions may require further assessment.

The Ministry of Works and Transport applied for a Certificate of Environmental Clearance for a five-kilometre highway near the Aripo Savannas Strict Nature Reserve. The appellant sought judicial review on grounds including delay, consultation on draft terms of reference, cumulative impacts from later highway phases, and irrationality.

Ramcharan J refused leave because the application was out of time and disclosed no arguable grounds. The Court of Appeal dismissed the appeal. G Smith JA considered two grounds arguable, but insufficient to overcome delay; J Jones JA and Des Vignes JA rejected the cumulative-impact challenge. The central questions before the Board were whether time should be extended, whether rule 5(2) required public consultation on the draft terms of reference, and whether future phases had to be assessed cumulatively.

1. Appeal dismissed. The refusal to extend time was upheld and the interim injunction was discharged.
2. Under section 11 of the Judicial Review Act, an application must be made promptly and within three months. The time for certiorari runs from the date of the decision itself, whether or not the decision has been publicised or brought to the applicant’s attention. An extension requires good reason. The statutory provisions prevail over any differing emphasis in rule 56.5 of the Civil Proceedings Rules.
3. The discretion to extend time belongs to the trial judge. An appellate court should interfere only where there is a flaw in the reasoning: Fishermen and Friends of the Sea v Environmental Management Authority [2005] UKPC 32. Where proceedings would delay a project of public importance, a strict approach is justified. Specific prejudice to identified parties need not be shown at that stage, although merits and public or private prejudice may overlap in the overall balance.
4. Public-interest litigants are not subject to a stricter standard than other applicants, and their limited resources may be relevant. They must nevertheless respect time limits, give full weight to competing public interests, and identify the real substance of the complaint with reasonable precision at an early stage.
5. Rule 5(2) of the Certificate of Environmental Clearance Rules 2001 is a limited preparatory provision concerning the parameters of an environmental impact assessment. Consultation is required only where appropriate and does not confer a general right on the public to be consulted on draft terms of reference. The later statutory public-comment procedure under sections 28 and 35(5) of the Environmental Management Act 2000 remained available. No arguable defect caused by the absence of earlier consultation was identified.
6. Rule 10, including its treatment of cumulative impacts, concerned the particular activity for which clearance was sought and did not itself require assessment of uncertain future highway extensions. The Authority had treated the cumulative effects of later phases as a material issue, but rationally accepted that assessment could be deferred while their design and operation remained unknown. There was therefore no arguable breach of rule 10 or failure to consider a relevant matter.
7. The Board was not persuaded that the United States-derived hard-look doctrine was a necessary addition to Trinidad and Tobago administrative law. An authority is not bound by strongly expressed views of its technical staff. Nor is it inherently unlawful or irrational to impose conditions requiring an updated environmental impact assessment. Environmental control is an iterative process, as explained in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment (Belize) [2004] UKPC 6.

1. Privy Council — dismissed the appeal from the Court of Appeal and discharged the interim injunction.
2. Court of Appeal of the Republic of Trinidad and Tobago — dismissed the appeal from Ramcharan J. G Smith JA considered two grounds arguable but insufficient to overcome delay; J Jones JA and Des Vignes JA rejected the cumulative-impact ground.
3. High Court — Ramcharan J refused leave to apply for judicial review on grounds of undue delay and lack of arguable grounds.