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Judgment

This is an application in Chambers to decide if whether an injunction should be granted ordering the respondent to stop forthwith the allegedly unlawful construction of a six-storied building. No main case has been entered by the applicant.

The point stressed in the affidavit in support of the application is that the Development and Building Permit granted by the co-respondent is null and void without the obtention of an EIA (Environmental Impact Assessment) licence and that the respondent, as a professional in the field of building construction, should have sought for an EIA licence under S 18(4) of the Environment Protection Act 1991 (hereinafter referred to as the Act) before proceeding with such a big project.

From the affidavits and documents produced, it is evident that the project was originally designed to accommodate 16 apartments on 4 levels at St. Clément Street, Curepipe and that a Development and Building Permit for that project was issued on 23 July 1991. As the building permit had to be renewed, at the request of the co-respondent, the respondent caused a fresh application to be made in 1996 for a development permit and for a building permit in respect of the same site and the development project purported then to house 24 apartments on six levels. A Development and Building Permit was consequently issued by the co-respondent. It is to be noted that according to the co-respondent, an EIA licence is not a prerequisite for the obtention of a Development and Building Permit for purely residential purposes.

It would appear from the evidence available that had the initial project been carried out, the applicant would have had no ground to complain, especially after the respondent’s undertaking not to create any vues droites on his adjoining premises in breach of article 678 of the Civil Code. However, with the coming into force of a major part of the Act in November 1991, it has become incumbent on a proponent who carries out any “undertaking”, which word has been made to include “Major housing projects” as listed in the schedule, to also obtain an EIA licence, irrespective of any other licence, permit, or approval granted under any other enactment. Failure to comply with that requirement has been made an offence by S 13 (1) of the Act.

The respondent, who is admittedly not the holder of an EIA licence, contends that there is no duty on it to apply for such a licence as it is nowhere specified that the six-storied construction it is undertaking falls within the definition of “Major housing projects”, thus necessitating an EIA licence. It is submitted that the expression “Major housing projects” have not been defined by the Act or by any regulations made thereunder. Another relevant point raised by the respondent is that it had no obligation to apply for an EIA licence as has been pointed out by the co-respondent, the more so, it is submitted, since S 75(15) of the Act which purported to amend the Town and Country Planning Act 1990 by making an EIA licence a prerequisite to the obtention of a development permit in respect of an “undertaking” has not yet been proclaimed, and is therefore not yet in force. It is advanced, and quite pertinently in my view, that the respondent cannot be rebuked for not complying with the law if the law maker does not specify what constitutes “Major housing projects” which would have enjoined it to apply for an EIA licence. The respondent has annexed four letters which were sent by its attorney to the Ministry of Environment with a view to finding out whether there existed any regulations made on the basis of the Act as amended and any classification for the implementation of the First Schedule of the Act with respect to “Major housing projects”. Finally, in February 1997, months after the construction had been in progress, a reply was given to the respondent to the effect that according to the policy of the EIA Committee, the construction of a building of twenty or more flats is considered to be a “Major housing development” requiring an EIA licence. The respondent contends that such a policy has no force of law and does not bind the Court since it has not been made part of the law by the Act or any regulation made thereunder. There is indeed substance in that contention, especially when under S 2 of the Act the expression “environmental laws” has been defined as meaning -

(a) (a) this Act and any regulations made under this Act, and includes any direction, order, notice issued under, or any requirement imposed by, this Act;

(b) (b) any other enactment, or part of any other enactment which the Minister may by regulations declare with the approval of the Commission

The contention upon which the applicant mainly relies is that the writ ought to be granted in as much as the failure of the respondent to obtain an EIA licence constitutes a breach of the law for which there is a penal sanction. He relies on the case of Poupard & Ors v. Harold & Ors [1909 MR 179] where it was held that a writ of injunction would be granted when the act sought to be prohibited would, if committed, constitute a breach of a penal law.

In that context I consider it relevant to refer to the case of Attorney-General v. Chaudry & anor, 1971 1 WLR 1614 where the defendants had turned three houses into an hotel and they took in residents. When the Greater London Council became aware of it, they asked for the plans and found that there was a very serious risk of fire. The defendants, who had previous experience in that connection and knew fully well what the requirements were, were specifically warned by the Greater London Council of the consequences if they persisted in using the premises as an hotel without the necessary certificate which they were by law required to obtain. They paid no heed to the admonition. The Council issued a summons in the Magistrates’ Court alleging an offence under the law but could get no early hearing. They joined in the Attorney-General to seek an injunction in the High Court to restrain the defendants from permitting the premises to be occupied without the required certificate. The Judge granted an injunction to prevent the occupation of the hotel premises until the safety precautions would have been taken. The Court of Appeal maintained the trial Judge’s decision.

In that case Lord Denning M.R. said the following at p. 1624:
Whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless the High Court always has reserve power to enforce the law so enacted by way of an injunction or declaration or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do.

The question for decision is whether in the circumstances existing in the present case I should use my discretion to grant an injunction ordering the respondent to stop its construction altogether.

It is obvious that the main concern of the applicant is that for reasons known to himself, he does not want to see materialize such a housing project near his house. There is no affidavit evidence before me giving the stand of the Ministry of Environment as the applicant has not thought fit to put them into cause. It is not to be overlooked that the Ministry might after all have granted an EIA licence for a project at the site in question, had such a licence been applied for. Another aspect to be taken into consideration is that according to the applicant himself, as averred in his first affidavit, the construction started in April or May 1996. It would appear therefore that he allowed the construction to proceed for months before seizing the Judge in Chambers for an injunction. It is to be noted that the respondent, even after having obtained the Development and Building Permit from the co-respondent, and even when believing that there was no obligation on it to apply for an EIA licence, has nevertheless contacted the Ministry of Environment to ascertain whether any regulations have been made or whether what constitutes “Major housing projects” has been specified by the law. The respondent has explained why it does not consider itself to be bound by the letter which it finally managed to obtain from the Ministry. As regards the contention of the applicant to the effect that the Development and Building Permit granted by the co-respondent is null and void in the absence of an EIA licence, it is clear that such is not the case since S 75(15) of the Act is not in force yet.

The other point that requires attention is whether the applicant has committed an act in breach of S 13(1) of the Act. The state of the legislation regarding the implementation of the Act, especially as far as the application for an EIA licence is concerned, cannot be said to be unambiguous. “Major housing projects” is not defined by the Act nor by any regulations made thereunder. That expression appears together with the other undertakings specified under the heading Urban Development Projects in the schedule, like “Hospital construction”, “Restructuring of land holdings an urban fringes”, “Industrial estate”, “Depot for buses and motor vehicles”, “Traffic centre”, “New town and satellite town Hotels and motels”.

I agree with the submission of learned Counsel for the respondent that the expression “Major housing projects” has to be defined and made known to the public either by way of regulations or general notice published in the Government Gazette. Since a citizen cannot plead ignorance of the law, he and his rights and investment cannot be subjected to policy which is liable to be changed, sometimes whimsically and capriciously, and which has not been translated into law. It is not to be forgotten that the Court is concerned with the interpretation of the law.

After thoughtful consideration, I have reached the conclusion that it has not been established to my satisfaction from the affidavits placed before me that the applicant is proceeding with an “undertaking” without the required certificate in breach of the Act. In all the circumstances of the case as elaborated above, I consider that it would not be just and convenient for me to issue an injunction in this matter. I am further of the view that the balance of convenience dictates that I should exercise my discretion in not granting the injunction. I therefore set aside the application with costs.

S. Peeroo
Judge