Appeal Court to rule on EMA's power to shut down fetes

THE COURT of Appeal has been asked to overturn a judge’s ruling that the Environmental Management Authority (EMA) and the police do not have the power to shut down events or fetes because of noise levels.

In submissions before Justices of Appeal Allan Mendonca, Prakash Moosai and Gillian Lucky on Friday, the EMA’s lead attorney, Kelvin Ramkissoon, insisted the finding of the High Court on the powers of the EMA was wrong and perverse.

The judges have reserved their decision.

The EMA has appealed the June 2021 ruling of Justice Margaret Mohammed in the judicial review claim of fete promoter, Wild Goose Ltd, against the EMA and Snr Supt Garth Nelson for shutting down its Tailgate Carnival event at the Queen’s Park Savannah on February 26, 2019, two hours early for breaches to noise levels.

It was alleged that the event was exceeding decibel levels set in a noise variation granted to Wild Goose for the event. The noise variation allowed the promoters to play music at 85 decibels from 6-8 pm and 75 decibels from 8 pm-2 am.

It was alleged that the decibel levels fluctuated during the night and several warnings were given before the event was shut down.

Mohammed ruled in favour of Wild Goose, holding that the EMA did not have the power to shut down the event since the Environmental Management Act set out the procedure for dealing with noise variation violations which included issuing a written warning and obtaining an injunction.

However, Ramkissoon contended the act, under section 68(c), gave the EMA wider implied powers “to take steps under any other law.”

He pointed the judges to the relevant sections of the Summary Courts Act, the Police Service Act and the common law as it deals with breaches of the peace and public nuisances.

Ramkissoon said the judge conflated the shutting down of the sound with the shutting down of the event when the EMA did not stop the fete, but the source of the “noise pollution.”

He said the police could have independently stopped the fete because of a “breach of the peace” which allegedly resulted from an announcement made on the public address (PA) system which resulted in officers of the authority’s Environmental Protection Unit being cursed at by patrons leaving the event.

Ramkissoon insisted the noise pollution rules gave an implied power to shut down the source of the “pollutant” while the common law provided protection against nuisances. He said the judge’s analysis of the law and the evidence was “regrettable.”

In response to a suggestion by one of the judges that, perhaps, in the long run, it would be best for Parliament to review the existing legislation as it relates to noise pollution, Ramkissoon said Parliament cannot legislate every conceivable scenario.

“Do we need to write in the law that which is the law?”

He added, “There is a remedy (inferential/implied powers) to stop the music when there is the belief a nuisance is committed…You have immediate abatement powers as law enforcement.

“There is a duty to abate a nuisance.”

That power, he said, was an axiomatic power.

In response to the appeal, attorney Christopher Rodriguez, who represents Wild Goose, said the EMA and the police failed to provide evidence of a public nuisance in keeping with the standards of “reasonable doubt” required to support a criminal offence. He said that even if the powers of the Summary Courts Act and the Police Service Act were “swept in” under section 68(c), there was no evidence of a public nuisance or a breach of the peace.

He, too, suggested going back to Parliament to amend the laws to give the EMA the “amplified powers” to shut down any fete or event in TT.

“They do not currently possess that power and that is what (the judge) found. The judge pointed out there was a comprehensive code for breaches of environmental requirements and penal sanctions…Parliament has not prescribed the power to take immediate enforcement action,” he said.

“To overturn this finding, they (the EMA) would have to show the judge was plainly wrong. The judge went through the evidence thoroughly.

“There was no breach of the peace. This was not a case of breach of the peace but a breach of a noise variation.

“The court correctly identified the comprehensive scheme of the legislation…The legislation gave the EMA a lot of powers but not the particular power that they wanted (to shut down the event.)”

Rodriguez warned the court not to “invent enforcement powers and give it to the authority.”

“There are issues to be dealt with regarding noise and how society deals with noise but that is best left for the legislature as to how the industry and the economy work with the environment.

“Do not read into legislation that which is not there.”

In her ruling, Mohammed ordered the EMA and Nelson to pay $30,000 in vindicatory damages to “register the court’s strong disapproval of the defendant’s decision to shut down an event in circumstances where there was no expressed or implied authority to do so.”

Ramkissoon said the promoter had accepted it violated the noise variation and had paid a $10,000 fine so the judge should have refused the declarations she granted and the award of vindicatory damages.

Also appearing for the EMA was Rhea Robinson while Wild Goose was also represented by Rhyjell Ellis and Joash Huggins.