COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

SRI LANKA

Sri Lanka - EIA, Right to Appeal

APPEAL UNDER SECTION 23DD OF THE NATIONAL ENVIRONMENTAL ACT BY RAJAWELLA HOLDINGS (PVT.) LTD.

SECRETARY, MINISTRY OF ENVIRONMENT (1994)
D. NESIAH, SECRETARY, MINISTRY OF ENVIRONMENT

Introduction

Rajawella Holdings (Pvt.) Ltd. (RHL) lodged this appeal with the Ministry of Environment over a decision made by the Ministry of Agricultural Development and Research, the project approving agency (PAA), regarding the proposed "Rajawella Golf and Hotel Project". One party to the Appeal, Environmental Foundation Ltd (EFL), raised two preliminary objections to the appeal that the Secretary had to consider before he could rule on the merits of the appeal.

Legislative Framework

Section 23DD of the National Environmental Act No. 47 of 1980

Held

The Secretary overruled EFL's two preliminary objections. First, EFL stated that RHL has not made a proper appeal as required by law. Section 23DD of the National Environmental Act states that where the PAA refuses to grant approval for a prescribed project, the aggrieved person or body has a right to appeal. RHL's letter to the Ministry of Environment is headed with the word "Appeal" and states that it disagrees with some aspects of the PAA's decision and agrees with others. If there are no specific provisions in the law as to the form of the appeal, a liberal standard is applied. Applying such a standard in this case requires holding that RHL's letter is an appeal within the meaning of section 23DD.

Second, EFL argued that a right to appeal is available only where the PAA has "refused" to approve the project, and as PAA has approved the project subject to certain conditions, RHL does not have a statutory right to appeal under Section 23DD. The PAA separated this project impact into five components, and an examination of these five components reveals that four out of five were "refused" or "allowed" subject to conditions. In many cases, the environmental impact assessment requirements of Chapter IVC of the National Environmental Act create such situations where a per se approval (or disapproval) of a project is not possible.

If the PAA's decision substantively altered the structure of the project as proposed, the decision amounts to a "refusal" to approve the project, and a right of appeal arises under section 23DD. If, however, the attached conditions do not change the project structurally or substantially, there is an "approval" and hence no right to appeal. Each case must be reviewed on its own facts and circumstances.

In this case, the Secretary of the Ministry of Environment examined the facts and found that several conditions structurally altered the project, and thus PAA's decision was a "refusal" to grant approval within the meaning of section 23DD, and RHL had a right to appeal this decision.

The Secretary then reviewed the merits of the appeal, and affirmed the PAA's decision, subject to some variations.

Cases Cited

Sierra Club v. Penfold 17 ELR 21061
T. Z Nambudiri v. A.N. Kurup 1965 AIR (Kerala) 1