COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

SRI LANKA

Sri Lanka - Air Pollution, Due Process, Right to Appeal

APPEAL UNDER SECTION 23E OF THE NATIONAL ENVIRONMENTAL ACT BY G.L.M. KAMAL FERNANDO

SECRETARY, MINISTRY OF ENVIRONMENT
APPEAL NO. 1/95
D. NESIAH, SECRETARY, MINISTRY OF ENVIRONMENT

Introduction

G.L.M. Kamal Fernando, Appellant, appeals against the decision of the Divulapitiya Pradeshiya Sabha (PS) denying him the virtue of an Environmental Protection Licence (EPL) for his brick kiln. The Central Environmental Authority (CEA) had earlier granted authority for the erection of this brick kiln subject to several conditions. The CEA had subsequently delegated its power of issuing license for such brick kilns to the PS.

In a related litigation, Appellant's father had constructed another brick kiln on land belonging to him, and his neighbour (the fifth respondent in this case) took the case to court arguing that the kiln should be 200 yards from a residence. The Magistrate's Court of Negombo agreed, and as this condition could not be satisfied, the court ordered that this kiln be closed.

Appellant subsequently made a "site clearance application" to the CEA to construct a brick kiln on his land, which adjoins his father's land. CEA's inspecting officer originally stated that clearance could be granted, but the CEA subsequently imposed conditions of a 200 meter distance from the home of the third and fifth respondents (husband and wife), and a 30 foot chimney. CEA explained that as the Negombo Magistrate's Court had imposed the 200 meter limit on Appellant's father, CEA would impose this limit on Appellant as the brick kilns were in the same area.

The CEA stated that it had no general rule regarding the distances that had to be maintained between brick kilns and residential premises. Appellant did not make a formal application for an EPL application, but both he and the PS proceeded on the basis that the "site clearance application" was an EPL application.

Legislative Framework

Section 23E National Environmental Act, No. 47 of 1980
National Environmental (Protection and Quality) Regulation No. 1 of 1990
National Environmental (Appellate Procedure) Regulations of 1994

Held

Even though Appellant did not make a formal EPL application, the Secretary held he has jurisdiction to entertain this appeal, as the site clearance application is a pre-EPL procedure. This site clearance allows the industrialist to obtain building approval and other necessary legal authorisations, and to begin construction with a reasonable degree of certainty that an EPL will be granted when formally applied for, if site clearance conditions are met. The law would be rendered ridiculous if a person to whom site clearance is denied has to make a formal EPL application and obtain a formal refusal before he can exercise his right to appeal. The site clearance process is part of the EPL process, and thus when site clearance is refused, a right to appeal arises under section 23E.

As the PS has in unambiguous terms refused to issue a license, even before an application has formally been made, this is deemed to be a refusal to grant an EPL.

The Secretary then reviewed the merits of the appeal, and held that there was no technical basis for the stipulation of a 200 meter distance. The stipulation was not based on CEA general guidelines, or the recommendation of any of the inspecting officers, and was therefore unreasonable and unjustified. As the Appellant's father has no interest in Appellant's land, and their brick kilns are separate, the litigation in the other case will not bind Appellant.

The Secretary stated that the CEA must establish general guidelines for industrial siting and stipulation of EPL conditions. General conditions may be varied where exceptional circumstances justify a variation on scientific grounds. In this case, CEA's new Rule 3 which provides for a 100 meter distance between brick kilns and residences, subject to variation in exceptional circumstances, is acceptable.

The condition stipulating the 30 foot chimney, however, was made pursuant to a general CEA guideline for brick kilns and other industries. There is no evidence to suggest this condition was arbitrary.

The decision of the PS is set aside. Appellant is free to make a formal EPL application. The new 100 meter limit will be applied. The CEA and PS should inspect the site, gather scientific and environmental data, give the parties an opportunity to be heard, and make a variation if necessary.