A freeholder at Jolly Harbour is asking the High Court to compel the Pesticides and Toxic Chemicals Control Board (PTCCB) to do what the statute requires — consider, and decide, according to law — on a chemical fogging programme conducted by Caribbean Developments (Antigua) Limited (CDAL) at, on CDAL’s own admission, over 4 times the manufacturer’s stated maximum annual frequency.
The judicial review brought by Mr Cyprian Kowalczyk puts the Board’s posture toward the regulated entity under scrutiny, in a case asking why the High Court itself was required, in early May, to grant an emergency stop order in the regulator’s place — when the Board possesses extensive statutory powers, including registration cancellation, operator licensing, personnel certification and the issue of a notice of non-compliance, and the underlying questions had been before it on a written complaint hand-delivered in March.
Three letters, one reply — after a court order
The stop order was made by the Honourable Madame Justice Stephenson in the freeholder’s parallel civil claim against CDAL and restrains the said chemical fogging operations until early June. Before that order, Mr Kowalczyk had hand-delivered three written communications to the Board over a period exceeding sixty days: a Freedom of Information request and complaint in March, a Formal Request for Intervention co-signed by fourteen freeholders in April, and a Pre-Action Protocol Final Notice later that same month. The Board provided no substantive response.
The Board’s first written engagement arrived only after Mr Kowalczyk notified it that the High Court had granted the stop order. That letter declines to confirm whether CDAL holds the operator licence required under section 6(1) of the Pesticides and Toxic Chemicals Act, 2008. It commits to no action and no specific date.
“Non-commercial” — and $163,200 a year
The judicial review pleads that the Board’s position, as carried on the Court’s file in the parallel civil proceedings, is internally inconsistent on its own face. CDAL pleads that no operator licence is required because the fogging operations are “non-commercial”. In CDAL’s Defence and supporting Affidavit, the same position is attributed to the Board itself — said to have given CDAL verbal advice to that effect. The Board has neither adopted nor disavowed the attribution.
Yet CDAL’s own pleaded admissions on the same Court file record, in CDAL’s own published words, that the cost of those operations is “built into the community fee” demanded of approximately 850 freeholders at Jolly Harbour at $16.00 per property per month. That is up to $163,200 per annum if all freeholders pay. A “non-commercial” purpose, the case says, cannot subsume the demand of $163,200 per annum from 850 freeholders. The Board’s silence in the face of that contradiction is itself, the judicial review pleads, the operative regulatory failure.
A regulator’s other channel
The selective treatment is sharper still on the regulated side. While the freeholder received no substantive engagement, the Board — on CDAL’s own sworn evidence — wrote to CDAL the day after the Court’s stop order, inspected CDAL’s storage and personnel within the following week, has stamped each importation of Zenivex E4 RTU by CDAL, and has previously certified personnel said to be conducting the fogging operations. None of those communications, inspections or determinations has been disclosed to Mr Kowalczyk.
Mr Spencer’s report
Several weeks before the Board’s inspection of CDAL, a sitting member of the Board — Mr F. Daryl Spencer, Deputy Chief Health Inspector — had written a report on his personal letterhead, addressed to CDAL’s Director Mrs Jamie Tarter, endorsing the substance of CDAL’s defensive position in the parallel civil proceedings. CDAL annexed it to its Defence and to its Affidavit in Opposition.
By section 4(3) of the Act, members of the Board hold the powers of an inspector — among the persons in whose hands the Act’s enforcement powers reside.
The judicial review pleads that the Board has provided no information that any conflict of interest disclosed by the report has been recognised as disqualifying, that Mr Spencer has been recused from any determination of the freeholder’s complaint, or that a panel free from his pre-published position has been constituted.
The air we breathe
Among the proprietary rights the case relies on is one expressly preserved by the Registered Land Act, Cap. 374. Section 98 of that Act provides that nothing in the legislation shall be construed as derogating from “the natural right to support, light, air or access to a highway appertaining to any land”.
Mr Kowalczyk relies on both the natural right of access to a highway (the access route from his property to the nearest public road runs over CDAL’s land; CDAL has admitted the right of way) and the natural right to air over and around it.
CDAL’s own pleaded mitigation — that residents should “remain indoors during these periods to minimize exposure to the pesticide” — is, on the freeholder’s case, itself an admission. The outdoor air is being contaminated; the family must withdraw indoors to avoid the contamination. That is interference with the natural right to air the Registered Land Act preserves.
What the order seeks
The judicial review does not ask the Court to determine the licensing question on the merits. Following the Padfield line of cases — and the Caribbean Court of Justice’s decision in Commissioner of the Guyana Geology and Mines Commission v Diamond Quarry Inc [2022] CCJ 11 (AJ) GY — Mr Kowalczyk seeks an order of mandamus compelling the Board to consider and decide, in writing and with reasons, the operator-licensing, product-registration, personnel-certification and section 20 enforcement questions.
Declarations are also sought that no oral representation by the Board can disapply the section 6(1) operator-licensing requirement, and that the statutory threshold for a section 20 notice is the test Parliament prescribed — “believes” — not the higher “sufficient evidence” threshold the Board’s letter has applied.
The Pesticides and Toxic Chemicals Act, 2008 has been in force for sixteen years. The statute has not changed. What the case asks the High Court to address is whether the regulator has applied it.
So the regulator only responded AFTER the court stepped in? That alone tells me something not right here
Imagine paying fees every month and then being told the operation linked to those fees is somehow not commercial. Make it make sense. This case could set a major precedent for environmental regulation in Antigua and Barbuda.
Chups. Ah sick and fed up of ah you
A court had to stop the operation before the regulator acted? That should concern every citizen
I live in Jolly Harbour and honestly a lot of residents were already uncomfortable with the amount of fogging taking place
Why are jolly beach residents being treated like alians?