ECSC upholds decision to dismiss injunction filed against construction of Barbuda airport

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Work on the new airport in Barbuda is one step closer to being restarted as the Eastern Caribbean Supreme Court has upheld the High Court’s decision to dismiss an injunction filed to halt construction.

But, one of the litigants told Observer that they are currently reviewing the written judgment as they await further advice from their legal team.

The individual also said there is a strong possibility that the case will be escalated to the next level, which is the Privy Council.

The government’s undertaking to build a new airport in Barbuda began in 2017.

Later that year, the developer of the project applied to the Development Control Authority (DCA), for a permit which included an environmental impact assessment study.

The Department of the Environment (DoE) which advises the DCA on environmental issues and projects, was not satisfied with the 2017 assessment and only recommended approval in principle, subject to submission of an updated environmental impact report.

That updated assessment was subsequently submitted by the developer in May 2018.

Sometime later into the year, the project was approved after the developer submitted a satisfactory environmental impact assessment.

During this period, the appellants, John Mussington and Jacklyn Frank of Barbuda, applied to the High Court for leave to file judicial review proceedings challenging the DCA’s approval of the project and seeking an interim injunction to stop construction of the work on the airport runway.

In August 2018, the judge granted both applications. However, on September 11th. 2018, the injunction was set aside by the Court of Appeal.

On September 18th, 2018, the appellants made a fresh application to the High Court for an interim injunction restraining the respondents — the DCA, the ABAA and the Attorney General — from permitting any further work on the construction of an airport runway on the island of Barbuda until the determination of the appellants’ claim for judicial review.

The injunction was refused on February 7th, 2020.

The appellants, being dissatisfied with the learned judge’s decision, appealed to the Supreme Court relying on six grounds of appeal.

All the respondents opposed the appeal and one of them counter-appealed, challenging the learned judge’s finding that the appellants had standing to apply for judicial review of the DCA’s decision to approve the development.

The main issues that arise for determination before the court are: “(i) whether the appellants had standing to apply for judicial review; and (ii) whether the learned judge erred in her decision to refuse to grant the interim injunction sought by the appellants”.

The appeals court made its decision saying “in all the circumstances, I would allow the counter notice of appeal and dismiss the appeal and the claim in the High Court. I would make no order as to costs”; which, as a result, paved the way for work to resume on the project.

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