John Mussington and another v Development Control Authority and others (Antigua and Barbuda)

Standing in judicial review under the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 depends on sufficient interest assessed in the legal and factual context. The listed categories, including persons adversely affected, are non-exhaustive. The court must guard against busybodies while recognising genuine environmental concerns and the rule-of-law value of review. Professional expertise is unnecessary: knowledge or concern, local connection and credible engagement may suffice. A prior general consultation cannot replace the statutory process for publicising a development application and considering representations. Completion of development does not make a standing appeal academic where the legality of the permit and possible remedies remain live.

The appellants, two Barbudan residents, challenged the construction of an airport airstrip. They alleged that construction began without a development permit, applications were not properly publicised, environmental impact assessments were inadequate or undisclosed, and the development threatened environmental interests.

The High Court granted leave and considered an interim injunction, reserving standing for trial. The Court of Appeal dismissed the appeal, allowed a counter-appeal on standing and dismissed the judicial review claim. The central issues before the Board were whether the appeal was academic, whether the Attorney General was a proper party, and whether the appellants had sufficient interest under rule 56.2.

Lord Boyd gave the judgment of the Board.

1. Preliminary issues. The appeal was not academic. Completion of the airstrip did not extinguish the live issue whether the development permit was granted unlawfully, since remedies could still include restoration of the land. The Attorney General was a proper party because the Government had decided to build the airport, applied for and held the permit, and had a direct interest in any remedy. Bahamas Hotel Maintenance & Allied Workers Union v Bahamas Hotel Catering & Allied Workers Union [2011] UKPC 4 was distinguishable.
2. Standing. Rule 56.2 establishes a liberal and relaxed sufficient-interest test. The categories in rule 56.2(2) are non-exhaustive. Standing is assessed in the legal and factual context, having regard to the merits, the rule of law, public importance, the applicant’s bona fides, competence, genuine concern, ability to litigate, the risk of busybody litigation and the availability of other challengers. The Board relied on Attorney General v Martinus Francois, Treasure Bay (St Lucia) Ltd v Gaming Authority, Young v Kingston and St Andrew Municipal Corporation, Dumas v Attorney General of Trinidad and Tobago, AXA General Insurance Ltd v HM Advocate and Walton v Scottish Ministers.
3. Environmental context. The principles in Walton v Scottish Ministers concerning a person aggrieved apply equally to judicial review standing. An applicant need not show a private property interest or professional expertise. Genuine environmental concern, some relevant knowledge and credible engagement may suffice, including where the applicant speaks for affected flora, fauna or environmental features.
4. Application. The appellants lived about two kilometres from the airport and faced potential noise, disruption and risks to drinking-water aquifers. Construction began without the mandatory permit required by section 17 of the Physical Planning Act 2003. The applications were apparently not publicised, and a previous village meeting about wider proposals could not substitute for the statutory process. The Board raised, but did not decide, whether an environmental impact assessment must be published to enable meaningful representations under section 22(4). The appellants nevertheless had sufficient interest. The Board would humbly advise His Majesty that the appeal should be allowed.

1. High Court of Justice of Antigua and Barbuda: Leave to apply for judicial review was granted and an interim injunction was initially issued. The injunction was later set aside. Wilkinson J refused a further interim injunction on 7 February 2020.
2. Court of Appeal of the Eastern Caribbean Supreme Court: On 29 April 2021, the appeal was dismissed, the counter-appeal on standing was allowed and the claim was dismissed for want of standing.
3. Privy Council: The appeal was allowed. The Board held that the appellants had sufficient interest to bring the judicial review claim.