Fri | Jul 21, 2017

Peter Knight | The real deal on Duncans approval

Published:Wednesday | July 12, 2017 | 7:00 AM
Peter Knight, CEO of the National Environment and Planning Agency.

The National Environment and Planning Agency (NEPA) takes note of the Sunday Gleaner article of July 9, 2017, titled 'Beachfront blow'. It is our view that the article, written by Mark Titus, deserves a measured response, not only to clarify the decision of the portfolio minister, but to underscore the legislative provisions that guide a minister's decision on an appeal.

It is useful to provide the context in which the aggrieved applicant, Duncans Bay Development Company Limited (DBDC Ltd), arrived at a decision to appeal the decision of the Natural Resources Conservation Authority (NRCA), whose decision was taken on the recommendation from the NEPA subsequent to its review of the application.

The application to the NRCA for an environmental permit for the mining and quarrying of sand was received November 6, 2015, and processed and considered by the Technical Review Committee (TRC) at its meeting, held January 5, 2016. The TRC recommendation was placed before the full board of the NRCA on January 19, 2016. The recommendation from the TRC was supported by the NRCA and the environmental permit refused. The decision was communicated via letter to the applicant on February 12, 2016.

The decision of the NRCA is not final. This is reflected in the present circumstance where the NRCA's decision was appealed to the minister with responsibility for the environment.

Section 35 of the NRCA Act makes provision for an aggrieved applicant to exercise his right to appeal. On hearing the appeal, the minister may:

(a) dismiss the appeal and confirm the decision of the Authority;

(b) allow the appeal and set aside the decision;

(c) vary the decision; or

(d) allow the appeal and direct that the matter be determined afresh by the Authority. Also, "the minister's decision shall be final".

Section 35 further defines "an aggrieved person" as a person "who has been refused a permit or a licence or who objects to the terms and conditions subject to which a permit or licence is granted; or who is the holder of a permit or licence and who objects to a decision of the Authority in respect of such permit or licence".

It is useful that the public be provided with a basic understanding on how the appeal process works. Once an appeal is received, the process to prepare and submit all relevant information on the application begins. This is followed by preparing a compendium of briefs which are circulated to the all parties to the appeal, including the aggrieved person or applicant. On the day of the appeal hearing, the minister is generally supported by teams drawn from the Attorney General's Chambers, senior technical staff from the Ministry of Economic Growth and Job Creation, the respective regulatory agencies involved in the instant case, NEPA and the Mines and Geology Division (MGD), and a representative from the municipal corporation. The aggrieved appellant was present along with his attorney and technical advisers.

The minister, on hearing the appeal, exercised his authority and varied the decision of the NRCA and mandated the inclusion of robust additional conditions derived from the appeal process. The appeal's process was intense. It saw the entry of new technical information and documentation to the process, which the minister was forced to hear. Subsequent to the formal hearing, teams from the technical agencies, NEPA and the MGD were mandated by the minister to undertake a site visit to verify the veracity of the 'new' information and to report its findings.

The report verified that the area contained large quantities of retired carbonate beach sand which could be mined, provided that it would be done in accordance with MDG guidelines, the NRCA stipulations, and outside of the known turtle nesting season. It is noteworthy that the aggrieved applicant had, prior to the application, obtained a quarry licence from the MGD.

In fact, the concerns of the residents and other stakeholders weighed heavily on the minister's mind and influenced his decision to instruct the site visit and assessment that would guide the final decision to be determined. This was so since the minister heard arguments regarding complaints and concerns from residents of sightings of turtles along the beach, the accompanying noise, and impact on the existing amenities enjoyed by the neighbourhood.

The minister, having considered the appeal and the findings of the site assessment report, decided to vary the NRCA's decision and instruct that robust conditions be formulated jointly between the MGD and NEPA to allow for protection of the surrounding environment, citizens' protection, and restricted mining and quarrying at the location. The environmental conditions were prepared within those guidelines and form the basis for the minister's approval.

- Peter Knight is CEO of NEPA. Email feedback to columns@gleanerjm.com and peter.knight@nepa.gov.jm.