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'Daring' fight

NRCA discloses minutes of cell tower approval meeting

Published:Friday | December 16, 2022 | 2:09 AMJovan Johnson/Senior Staff Reporter

The Natural Resources Conservation Authority (NRCA) has finally complied with a disclosure order in a case involving a Digicel cell tower after what has been described as “a daring attempt by a government entity to violate the ruling of a court”....

The Natural Resources Conservation Authority (NRCA) has finally complied with a disclosure order in a case involving a Digicel cell tower after what has been described as “a daring attempt by a government entity to violate the ruling of a court”.

The NRCA's actions will also force taxpayers to cover legal costs awarded against the state entity.

On Tuesday, Justice Sonya Wint-Blair gave the NRCA one day to disclose meeting records associated with permission granted to Digicel to build a cell tower at 1 Aylsham Heights in Kingston 8.

Gavin Goffe, the attorney representing the residents who initiated the case, said the agency has now satisfied the orders of the Supreme Court.

This was four months after the original demand.

In August, the NRCA, Jamaica's chief environmental regulator, was given three days to facilitate the inspection and disclosure of the minutes. That order stemmed from the case brought by residents of Durie Drive and Aylsham Heights, who want quashed the permissions granted in 2021 by the Kingston and St Andrew Municipal Corporation (KSAMC), the NRCA, and the Town and Country Planning Authority (TCPA).

They are contending that the state entities approved Digicel's applications without consulting the residents and before the minimum period under law for filing objections had expired.

Earlier this year, the Supreme Court gave the residents permission to apply for a judicial review of the decisions. The trial is set for December 20.

However, during disclosures for that application for permission, the residents said it became evident that some of the information relied on by the KSAMC and the NRCA was based on documents that were not provided to them.

On June 27, the claimants filed an application in the Supreme Court for an order mandating the KSAMC, the NRCA, and the TCPA to make certain disclosures.

A judicial officer called a 'master' granted the orders on August 12 and ruled that the entities should comply within three days.

The master ruled that the KSAMC shall permit inspection of the minutes of the meeting of the Building and Town Planning Committee on November 17, 2021, where the approval was granted.

She also ordered that the KSAMC should allow inspection of the minutes of the council meeting where it was decided that it did not require evidence of the service of a notice of intention to carry out the building works for the construction of the cell tower.

The NRCA was ordered to allow the inspection of minutes of meetings of the TCPA and the NRCA held on November 16, 2021 and release a community survey referred to in an affidavit by Peter George Knight.

The KSAMC complied on August 17.

On the same day, the NRCA and the TCPA filed their updated list of documents, showing only extracts of the records of the meetings.

The NRCA and the TCPA claimed a right to withhold the full documents on two grounds: that of relevance and legal professional privilege.

The NRCA also argued that the minutes contained legal advice.

The entity did not respond to follow-up emails sent by the residents' lawyer, and the issue forced the delay of the judicial review, moving the trial from October to December.

The residents contended that the NRCA's grounds for only partial disclosure were not argued before the master prior to the orders being granted.

Justice Wint-Blair agreed with the residents, noting that the NRCA “ought to have raised this issue of legal professional privilege before the learned master and failed to do so”.

“An extract of the minutes is not the same as the minutes of the meetings themselves. The second defendant has not provided a reasonable explanation for breaching the said orders and occasioned delay and expense by taking the position it has,” she added.

Striking out the environment regulator's case was a draconian step, the judge acknowledged, and instead gave the agency another opportunity to comply with the orders.

A senior government lawyer said the “daring ... [and] dazzlingly bold” NRCA “attempted to make a mockery of the rule of law by no less than a government entity”.

“The judge was kind in that judgment,” he said.

Steven Sykes, president of the Durie Drive and Aylsham Heights Citizens' Association, and association member Lynden Nugent filed the claim against state entities.

They say it was on December 23, 2021, that one of the members of the association saw a notice dated November 10, 2021, attached to the gate at 1 Aylsham Heights, which stated that anyone wishing to object to the construction of the cell tower should do so within 14 days.

The KSAMC has argued that it treated Digicel's application for a cell tower as an emergency, pointing to the COVID-19 pandemic, the Government's work-from-home policy, and the focus on online classes.

The municipal corporation approved Digicel's request within five working days of the application being submitted, but the residents are contending that under the Kingston and St Andrew Building Regulations, there is a 30-day period for objection after a notice of application is made.