[2022] KENET 758 (KLR)

Burnt Oak Securities Limited v Director General National Environment Management Authority (Tribunal Appeal 014 of 2020) [2022] KENET 758 (KLR) (Civ) (12 October 2022) (Judgment)

Neutral citation: [2022] KENET 758 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 014 of 2020

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Vice Chair, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

October 12, 2022

Between

Burnt Oak Securities Limited

Appellant

and

Director General National Environment Management Authority

Respondent

Judgment

1. The appellant applied to the respondent for issuance of an EIA licence in reference NEMA/PR/5/2/20913 for a project for proposed landscaping of a garden and construction of a side café and parking at Mimosa Grove in Runda area.

2. Following exchange of correspondence, the respondent wrote to the appellant on January 13, 2020 communicating its refusal to the grant of a licence.

3. Challenging this refusal, the appellants filed this appeal dated March 11, 2020, on the following grounds:a.The respondent erred in law by not giving its decision within the mandatory 45 days after receiving: their evironmental impact assessment project report.b.The respondent erred in law by basing its decision for refusing to grant the license on a matter that has no basis in law or in fact.c.The respondent erred in law in making a decision without taking into account the fact the appellant’s land user stated lease document is compatible with the intended project.d.The respondents erred in law by basing its decision upon a physical planning issue on land use without seeking and obtaining commence advice from the physical and planning authority.e.The respondent erred in law, in making its decision without submitting the environmental impact assessment report to leading agencies for their written commence.f.The respondent erred in law by basing its decision on an issue which had not been subjected to the environmental impact assessment study report.g.The respondent erred in law by making a decision without seeking the appellant’s representations on the available mitigation measures of alleged incomparability of the neighbourhood land use.h.The respondent erred in law in arriving at a decision to complete disregard of the mandatory provisions of the environmental impact assessment impacts assessment and audit clause paragraph regulations including:a.Failing to set up a technical advisory committee;b.Failing to submit a project report to each of the relevant review agencies;c.Failing to require the appellants to undertake an environmental impact assessment study in accordance with the law.d.If it was the respondent's finding that the project would have a significant impact on the environment and the project report was not sufficient mitigation.

4. The appellants sought the following reliefs:a.That the appeal file be allowed and the respondents decision be set aside;b.The honourable tribunal order an environmental impact assessment license to be issued forthwith; andc.The respondents be condemned to pay the cost of the appeal.

5. The said appeal arises out of a decision made by the respondent’s refusal to grant the appellant an environmental impact assessment license which decision was given pursuant to the respondent’s letter dated January 13, 2020.

6. Alongside its appeal, the appellants presented a bundle of documents compromising all the supporting documents the appellants felt justified issuance of the order by the appeal

7. The respondent’s filed a reply to the grounds of appeal on the July 14, 2020, in their respondents reply to the grounds of appeal dated July 10, 2020.

8. At paragraph 5 of the reply, the respondent stated that they had informed the appellant that the environmental impact assessment license application had been declined on the grounds that the proposed commercial activity was not compatible with her neighbourhood land use,

9. It was further alleged that on December 18, 2018, the respondents had received an environmental impact assessment project report from the appellants. Pursuant to that report the appellants were seeking to landscape a garden and construct a side café and parking in Runda estate of Nairobi. The authority noted that following consultation the residents of that area were opposed to the proposed project as it was out of character of the area.

10. The appellants on the other hand in their witness statement of their lead environmental impact assessment expert Mr Richard Mokua confirmed that the appellant is the registered owner of these two plots dated Nairobi/Block112/377 and Nairobi/Block 112/378 and that the appellant’s property had a commercial user, specified for shops and offices in their lease documents and the appellant had been carrying out landscaping works on their own property when they were ordered to stop work and were required to obtain an environmental impact assessment and license.

11. In addition to stopping the works on site, the respondents proceeded to arrest and commenced prosecution of the appellant’s workers at the Kibera law courts. The charges laid against the appellants were subsequently withdrawn by the respondent. Following those developments, the appellants engaged the lead expert to prepare an environmental impact assessment project report for intended project. According to the appellant's witnesses, the circulated forms for collection of the neighbouring resident’s views followed by a consultation meeting with the neighbours on September 5, 2019.

12. An exchange of correspondences between the parties confirmed that a meeting had been held and a report filed with the respondent.

13. From September 2019, the respondents failed to make a decision on the appellants contended that there was a delay from the respondents in making a decision and the appellants wrote the respondents a protest letter dated October 15, 2019 complaining on the delay, the respondents wrote back on October 23, requiring the appellants addressed the issues raised in previous letters of September 6. Once again the appellants confirmed that these issues had been addressed in the previous correspondence and the respondent in its letter dated January 13, 2019 informed the appellant that its application for the environmental impact assessment license had been declined on the basis it was not compatible with the neighbourhood land use. Hence advises the appellant to seek an alternative site for the proposed project.

14. Accordingly, the respondent's decision was one based on compatibility of neighbourhood land use and this was not only erroneous but it fell outside the jurisdiction of the respondents. As the appellants proper had a commercial user and appropriate approval had been obtained from the Nairobi city count urban planning department to carry out works that were proposed.

15. The issues before the tribunal to be considered are first:a.Whether the project or the proposed project is out of character with the environment;b.Whether an environmental impact assessment study ought to have been conducted in respect of the project; andc.What orders are suitable in this appeal.

Determination: 16. With respect to A, the property not being out of character with the environment it is noteworthy that the title to the property clearly specified the use of the property to indicate commercial use accordingly even though the question of zoning the use of land is not within the mandate of the tribunal to determine as it is a question of physical planning liaison committee it Is clear where a project is out of character with the environment then the tribunal will interfere to support a rejection of any environmental impact assessment license application. In the instant case, the proponent applied for the construction of the landscaping of the garden and the construction of a commercial building with a cafeteria and office facilities. It is clear that in this instant case nothing has been shown on the evidence to suggest that the project itself is out of character with the environment or what the environment around the project site is Other than to say that the site is surrounded by a residential estate. Is the construction of a cafeteria out of character with a residential estate? We believe not. If for instance, the project was in respect of a nightclub or a bar with loud music then clearly there would be concerns as to the neighbourhood and the loud noise levels that would affect the site. The same is true if the project was a factory or industrial unit in an estate solely dedicated to a residential estate, however in this case this is not the case. The cafeteria and landscape garden do not have a high environmental impact on a residential estate and we find reasons given to deny such approval to be unreasonable in the instant case.

17. With regard to whether a study report was required, the schedule to the Act provides and categorizes matters, where a study is required to be undertaken and has differentiated projects into risk levels in this case landscaping activities and construction of a cafeteria, which are not high risk and a study would not be required or be necessary. Also, evidence has been shown that public participation has been conducted on the site with the Neighbours and views of Member residents taken currently we are satisfied that the project proponent has endeavored to adhere to the regulations and requirements required for the issuance of the environmental impact assessment license,

Orders:Accordingly, we make the following orders.a.That the appeal herein succeeds and is allowed.b.That the respondent be ordered to issue an environmental impact assessment license to the proponent/appellant within the next 7 days of this order. Failing which the appellant will be deemed to have been duly licensed under the powers of the tribunal under section 129 (3) of the Environmental and Management and Coordination Act.c.There shall be no orders for costs in this matter.

DATED & DELIVERED AT NAIROBI THIS 12TH DAY OF OCTOBER 2022. Mohammed S Balala ……………………………………….……………… ChairpersonChristine Kipsang ………………………………………………………Vice ChairpersonBahati Mwamuye ….…………………………………….………..……………… MemberWaithaka Ngaruiya ………………………………………………..…………..….. MemberKariuki Muigua ………………………………………….………………………… Member