Tobago woman loses case against family over damage to her property

A HIGH COURT judge has stressed the importance of doing thorough environmental assessments before starting work that could affect the natural topography of land or the trajectory of watercourses.

The advice came from Justice Frank Seepersad on Monday after he dismissed the larger portion of a lawsuit filed by a Tobago landowner who sued her brother and his daughters for damage to her property at Plymouth Road.

Bernadine Mills sued her nieces Nefer, Omodara and their father Phillip Mills for trespass and damage to her property by diverting a river and clearing a portion of the hillside, causing $444,563 worth of damage to her property, which she sought to recover in her lawsuit against them. Philip was also accused of having built two structures on the land without permission, which he later removed.

Mills’s land lies next to her nieces' and their father said the Tobago House of Assembly (THA) had been given permission to clear an area to store heavy equipment. It was their defence that in 2012, the THA, to improve road access, cut a main road and built bridges along Plymouth Road.

The evidence showed that cylinders were used to narrow the river at certain points, which caused a realignment of its path, which, the judge said, may have contributed to the damage to Mills’s land.

He said she elected not to join the THA as a party to her lawsuit, even though the defence clearly argued that the realignment of the river was due to the work done by the THA. He also pointed out that she accepted that the THA had contacted her about the roadworks.

As he found there was no evidence that the three authorised or instructed the removal of the material on the riverbed, Seepersad said the expert evidence was that the realignment of the river led to its being narrowed for the introduction of culverts as part of the roadworks along Plymouth Road.

He said Mills failed to discharge the evidential burden to establish that the three caused a realignment of the river which negatively affected her land.

“The evidence suggests that roadwork which involved, inter alia, the erection of bridges over the river which runs adjacent to Plymouth Road was in fact engaged in by the THA.

“The work greatly improved access to the area and undoubtedly had a positive impact upon the lives of persons who lived there.”

Seepersad said the evidence in the case demonstrated that progress usually came at a price.

However, he said the “impact upon the environment cannot be ignored.” He said while the court received no evidence as to whether there was any environmental impact assessment, it appeared unlikely one was done.

He added, “It must be understood that every action has an equal and opposite reaction. When rivers are narrowed, the water finds other ways in which to flow and this can cause erosion of lands in other areas and or flooding.

“It is therefore important that thorough environmental assessments are engaged before any work is done which affects the natural topography of land or the trajectory of watercourses.

“Very often lands are cleared, hillsides are denuded and swamps are backfilled all in an effort to create much needed housing but little thought is given to how these developments would impact upon water flow and the result is unprecedented flooding in areas which previously never experienced flooding.”

He said such developmental work must be done responsibly with proper assessments of the impact it will have on the environment.

“As a society we need to be more mindful about our actions and the impact which they occasion upon the environment.”

The trial began on Friday, with several witnesses testifying at the Tobago High Court, where Monday’s decision was delivered.

Mills was also ordered to pay 90 per cent of her relatives’ costs. She was represented by attorney David Craig. Her three family members were represented by attorney Dawn Pallackdharrysingh.