002-SLLR-SLLR-1998-V-2-GUNARATNE-v.-THE-HOMAGAMA-PRADESIYA-SABHA-AND-OTHERS.pdf
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Gunaratne v. The Homagama Pradeshiya Sabha
and Others
11
GUNARATNE
v.THE HOMAGAMA PRADESHIYA SABHA AND OTHERS
SUPREME COURTAMERASINGHE, J.,
PERERA, J.,
GUNAWARDENE, J.
SC APPLICATION NO. 210/97(FR)
MARCH 04, 1998.
Environment Law – National Environmental Act, No. 47 of 1980 as amended byAct, No. 56 of 1988 – Establishment of a Saw Mill – Nuisance – Environmentalhazards : noise, saw dust, etc. – Permission by Pradeshiya Sabha – Licenceunder National Environmental Act – Infringement of Fundamental Rights – Article12(1) of the Constitution.
An application by the petitioner to establish a Saw Mill was recommended bythe Technical Officer of the Pradeshiya Sabha but the Central EnvironmentalAuthority (CEA) refused to approve the application without adducing any reasons.The petitioner appealed to the Minister who directed the officers of the CEA toconsider the application on its merits. The CEA wrote to the Pradeshiya Sabhathat it had no objection subject to the following conditions:
Noise should not exceed 55 decibels prescribed under the EnvironmentalAct.
The operation should not be conducted between 6.00 p.m. and 6.00 a m.
A report from the Ceylon Institute for Scientific and Industrial Research(CISIR) regarding compliance with conditions relating to noise levels shouldbe obtained.
Saw dust and other dust particles should not be a hindrance to the membersof the community living in the vicinity.
The letter of CEA was considered by the Pradeshiya Sabha at a meeting andunanimously approved provided an Environmental Protection Licence was obtainedbefore commencement of operations. The decision of the Pradeshiya Sabha wascommunicated to the petitioner laying down the conditions laid down by the CEAand a further set of 7 conditions prescribed by the Pradeshiya Sabha. The petitionerthen began preparations. However while preparations were going on the petitionerreceived a letter from the Chairman of the Pradeshiya Sabha informing him thatthe CEA had informed it of its decision not to recommend the petitioner's industryand that the Pradeshiya Sabha had requested clarification from the CEA. Thepetitioner was directed to temporarily suspend preparations. An application wasmade to the Supreme Court for infringement of Fundamental Rights and asettlement was about to be entered when the 7th to 10th respondents intervenedand objected to the settlement on the following grounds :
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Noise emitted by operation of the machinery, unloading of logs, etc., willcreate a nuisance and will adversely impact on the place and quiet hithertoenjoyed by them.
Health hazards would be caused by the saw dust.
The road would be obstructed by vehicles bringing raw materials.
The mill would disturb the calm and peaceful environment of a residentialarea.
Establishment of a Saw Mill would violate the provisions of the NationalEnvironmental Act and other public health and building regulations.
Held:
The stage at which the complaint was made was the site clearance stage.It is the stage at which an industrialist is granted or refused permission to beginpreparation for setting up his operations. Obtaining permission at that stage doesnot constitute the granting of a licence.
A petitioner who receives a favourable response to a site clearingapplication must comply with the terms and conditions upon which such clearanceis granted.
No operations can commence until the petitioner has obtained a licenceissued under Part IV A of the National Environmental Act.
The Central Environmental Authority and delegate institutions like thePradeshiya Sabha should hear neighbourhood objections, inform the industrialistof the objections, hear the views of the industrialist, and after weighing the evidencein the light of the submissions made by both sides, decide for reasons statedin writing and no other, that the licence will be granted or refused. The decisionand reasons should be communicated to the industrialist and the persons whoraised objections.
Per Amerasinghe, J.
“Publicity, transparency and fairness are essential if the goal of sustainabledevelopment is to be achieved. In the matter before us, none of these elementswere present . . .“
APPLICATION for relief for alleged violation of fundamental rights.
Tilak Marapone with Nalin Ladduwahetty, Jayantha Fernando and Anuja Premaratnefor petitioner.
Manohara R. de Silva for 1st respondent.
K. C. Kamalasabeyson, ASG with N. Pulle for 2nd to 6th respondents.Lalanath de Silva with Mihiri Gunawardene for 7th to 10th respondents.
Cur. adv. vult.
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Gunaratne v. The Homagama Pradeshiya Sabha
and Others (Amerasinghe, J.)
13
April 03. 1998AMERASINGHE, J.
The petitioner made an application to the Homagama PradeshiyaSabha for the purpose of establishing a saw mill at Kandalanda. Thisapplication was referred to the Central Environmental Authority by thePradeshiya Sabha. The site was visited by the Technical Officer ofthe Pradeshiya Sabha. The officer recommended the petitioner'sapplication. The matter was then referred to the Central EnvironmentalAuthority which, without adducing any reason, refused to approve theapplication. The petitioner then appealed to the Minister in charge ofthe subject of Environment. The Minister directed the officers of theCentral Environmental Authority to consider the application on itsmerits. The Central Environmental Authority then wrote to the PradeshiyaSabha stating that it had no objection to the siting of the proposedSaw Mill at the place proposed, subject to certain conditions beingcomplied with, namely:
that the proposed operations of the saw mill should notdischarge noise levels above the 55 decibel limits prescribed underthe provisions of the Environmental Act;
that the operation should not be carried on between 6 p.m.and 6 a.m.;
that a report, once in three months from the Ceylon Institutefor Scientific and Industrial Research should be submitted with regardto compliance with the conditions relating to noise levels;
that saw dust and other dust particles emanating from the sawmill should not be a hindrance to the members of the community livingin the vicinity of the proposed saw mill.
The letter of the Central Environmental Authority was placed forconsideration at a meeting of the Pradeshiya Sabha which unani-mously decided to grant the petitioner permission to proceed with thepreparations to set up the mill provided that an EnvironmentalProtection Licence would be obtained before the commencement ofthe operations. The decision of the Pradeshiya Sabha was commu-nicated to the petitioner laying down the conditions stipulated by theCentral Environmental Authority and ra further set of 7 conditionsprescribed by the Pradeshiya Sabha.
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The petitioner then proceeded to prepare the premises by clearingthe site, erecting a boundary wall and obtaining an electricity serviceconnection. While preparations were going on, the petitioner receiveda letter from the Chairman of the Pradeshiya Sabha informing himthat the Central Environmental Authority had informed the PradeshiyaSabha of its decision not to recommend the petitioner's industry, butthat the Pradeshiya Sabha had written to the Central EnvironmentalAuthority seeking clarification on the matter. The petitioner was di-rected to temporarily suspend preparations. The petitioner then ap-pealed to the Minister in charge of the subject of environment andhe was directed to meet the Director-General of the Central Environ-mental Authority and make representations to him. The Director-General informed the petitioner that he had been informed that theproposed industry would be a nuisance to the public in the area and,therefore, the authorization initially given was withdrawn.
The petitioner then filed an application in this Court on 28thFebruary, 1997, alleging that the respondents had violated his fun-damental rights guaranteed under Article 12 (1) of the Constitutionand praying, inter alia, that the Court make order quashing the letterdated 27.1.97 issued by the Pradeshiya Sabha suspending theauthorization earlier given by the Pradeshiya Sabha to the petitioner.
When the matter came up for support on 17 March, 1997, theCourt observed that all counsel agreed that the petitioner may proceedto establish his Saw Mill on the premises referred to in paragraph8 of the petition subject to the terms and conditions set out in letterP5 issued by the first respondent (the Homagama Pradeshiya Sabha)and subject to any other statutory conditions applicable under theNational Environmental Act, No. 47 of 1980, as amended by Act No.56 of 1988, and subject to the right of the fifth respondent (The CentralEnvironmental Authority) to conduct all necessary tests and investi-gations to be satisied that the conditions had been complied with.If the conditions had been complied with, the first and fifth respondentswould issue all necessary licences for the carrying on of the petitioner'sbusiness. In the circumstances, the Court considered it unnecessaryto consider the question of granting leave to proceed at that stage.
When the matter came up before Court on 17 June, 97, learnedcounsel for the Pradeshiya Sabha undertook to instruct the PradeshiyaSabha to send officers to take steps leading to the issue of theCertificate of Conformity. The application of certain persons – the 7th
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Gunaratne v. The Homagama Pradeshiya Sabha
and Others (Amerasinghe, J.)
15
to 10th respondents – to be added as intervenient-respondents wasnot considered on that day. On 30th June, 1997 learned counselappearing for the intervenient-respondents objected to the settlementarrived at on 17.3.97. The application for intervention was allowedon 29 August, 1997. The petitioner moved that contempt proceedingsbe taken against the Chairman of the fifth respondent. Leave toproceed was granted for the alleged infringement of Article 12 (1)of the Constitution on 11 September, 1997. When the matter cameup before Court on 9.12.97, learned counsel for the CentralEnvironmental Authority stated that he had no objection to the issueof the Certificate of Conformity. Learned counsel for the PradeshiyaSabha stated that the building was in conformity with the approvedplan except for an omission which if rectified would bring the buildinginto conformity with the plan. Learned counsel for the intervenient-respondents objected to the issue of the Certificate of Conformity.
The intervenient-respondents object to the establishment of the sawmill on the grounds that (1) noise emitted by the operation of themachinery, unloading of logs, etc., will create a nuisance and willadversely impact on the peace and quiet hitherto enjoyed by them;(2) health hazards would be caused by saw dust; (3) the road wouldbe obstructed by vehicles bringing raw materials to the Saw Mill;(4) the Mill would disturb the calm and peaceful environment of aresidential area; and (5) the establishment of the Saw Mill wouldviolate the provisions of the National Environmental Act and otherpublic health and building regulations.
The stage at which the complaint was made to this Court is thesite clearance stage. It is the stage at which an industrialist is grantedor refused permission to begin preparations for setting up hisoperations. Obtaining permission at that stage does not constitute thegranting of a licence. A petitioner who receives a favourable responseto a site clearance application must comply with the terms andconditions upon which such clearance is granted. In the present case,as we have seen, the Central Environmental Authority and thePradeshiya Sabha have both laid down several conditions, aimed nodoubt, at eliminating the hazards and inconveniences that theintervenient-respondents fear. In any event, no operations can com-mence until the petitioner has obtained a licence issued under PartIV A of the National Environmental Act. One would expect that theCentral Environmental Authority and delegate institutions, like theHomagama Pradeshiya Sabha, would hear neighbourhood objections,inform the industrialist of the objections, hear the views of the
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industrialist, and after weighing the evidence in the light of thesubmissions made by both sides, decide for reasons stated in writingand no other, that the licence will be granted or refused. The decisionand the reasons should be communicated to the industrialist andthe persons who raised objections.
Publicity, transparency and fairness are essential if the goal ofsustainable development is to be achieved. In the matter before us,none of these elements were present and in my view the first andfifth respondents acted in an arbitrary manner in suspending theauthorization granted earlier. In fact the first and fifth respondents,during the hearing, stated that they were prepared to permit theresumption of work, thereby acknowledging the fact that thesuspension was an ill-considered act.
In the circumstances, I hold that the first and fifth respondentsviolated Article 12 (1) of the Constitution and I make order quashingthe suspension of authority to proceed with the setting up of the SawMill as set out in the letter of the first respondent dated the 27th ofJanuary, 1997.
The fifth respondent is directed to pay the petitioner a sum ofRs. 10,000 as costs.
PERERA, J. – I agree.
GUNAWARDENA, J. – I agree.
Relief granted.