Privy Council hears controversial Barbuda Airport case; questions about integrity dominated the courtroom

During the Privy Council hearing yesterday, there were significant concerns raised about whether the approval process for building an international airport in Barbuda was fair and transparent.

Jacklyn Frank and John Mussington, two Barbudans, brought the case to the Judicial Committee of the Privy Council as they believed that constructing the airport would harm the environment.

In 2018, they had some success when Justice Rosalyn Wilkinson granted an interim injunction to stop construction work following an application for leave to judicial review the airport’s construction and the government’s non-compliance with the Physical Planning Act 2003.

However, the Eastern Caribbean Supreme Court later lifted the injunction and rejected subsequent appeals from Frank and Mussington’s legal team.

The pair was also refused conditional leave in 2021 to appeal the matter at the Privy Council as they were deemed to lack the required standing.

Their legal team then filed directly with the country’s highest court, and they traveled to London to make their case.

They sought to determine whether the Court of Appeal was correct to conclude that they did not have standing to pursue judicial review proceedings against a decision to grant a development permit for a new airport runway.

During the hearing, Marc Willers KC, the attorney representing Frank and Mussington, discussed the impact of Hurricane Irma in 2017, which caused the temporary evacuation of Barbuda’s entire population of nearly 1,600 people to mainland Antigua.

He also pointed out that when residents returned months later, they found construction work taking place on the airport and a luxury development project, leading one judge to question whether the government had advertised plans for the airport or discussed the matter with locals, and whether it was part of an already-established development plan.

Willers also discussed the lack of an Environmental Impact Assessment (EIA), which advises whether construction should be allowed in a certain area based on the potential environmental impact, prior to the start of the airport’s construction.

The judges remarked that EIAs are usually for public participation, implying that the DCA erred in granting approval for the airport’s construction before one was executed.

Willers then spoke about the warnings made via an eventual EIA of the environmental damage the project had already caused and threatened to continue, which were essentially ignored. The DCA’s ‘green light’ was one of the focal points of Willers’ presentation, as he noted that the developer sought said approval in 2018, when work had already begun the previous year, and that ‘approval in principle,’ which does not allow for construction, is what was granted.

One judge remarked that essentially, “work was steaming ahead long before permission was granted for the work to even take place.”

Willers argued that his clients should be considered as having sufficient standing by citing John Mussington’s significant experience as a marine biologist and arguing that both appellants are not ‘busybodies’ or ‘meddlers’ but local residents who have a genuine interest and concern in the development that is taking place close to their homes.

He referred to the UK Supreme Court’s decision in Walton v Scottish Ministers 2012, which declared that “a person with a genuine interest in an aspect of the environment they seek to protect, who has sufficient knowledge of the relevant subject matter to qualify them to act in the public interest, may be accorded standing in an environmental case, even if the decision under challenge does not directly affect their private rights or interests,” according to 3 Hare Court.

Webber expressed his belief that the Court of Appeal erred in its decision regarding the Walton case, by failing to apply the correct test and reaching an incorrect conclusion. This is in reference to the ECSC’s ruling that the case was not eligible for judicial review, and that private citizens cannot use this process to challenge public body decisions. Willers emphasized the need to prevent the Court of Appeal’s decision from setting a harmful precedent for future cases.

Dr. David Dorsett, representing the DCA and the Attorney General, argued that the appellants lack sufficient interest in the case to have standing, downplaying their expertise and experience. “

The panel doubted Dorsett’s claims. One judge asked, “If someone living two miles away from a major development doesn’t have enough interest to contest it, who does?” This judge believed that Dorsett’s case was that no one has the right to challenge the government’s unlawful activity.

However, the judge pointed out that since no one else has come forward, and no organization is available to do it, then it has to be a local resident who contests it. Later, Dr. Dorsett admitted that there was no public consultation on the plans for the airport’s construction and that the public was not informed about the project’s approval. She recognized that these deficiencies were “not a pretty state of affairs”.

Meanwhile Dr David Dorsett who appeared on behalf of the government told state television while the Privy Council heard arguments from both sides it would not be making a decision on who is right or wrong and whether or not an airport should be built in Barbuda.

“They are simply making a determination of whether or not the two Barbudans have brought a challenge and whether they had the capacity to do so.

“The Privy Council heard the arguments on that question they do have some concerns about the process of how the Development Control Authority (DCA) operated,” Dorsett said.

He explained further that the Privy Council may likely deliver an early decision given the fact that the case has been ongoing for 5 years and the dynamics of the case.

The attorney also indicated that the court case will have no impact on the ongoing construction.