Minister of the Environment v Rodrigues Trucking and Excavating Ltd

• Jurisdiction: Bermuda
• Judgment Date: 09 August 2004
• Date: 09 August 2004
• Docket Number: Civil Jurisdiction 2004 No. 148
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2004 No. 148

BETWEEN:

The Minister of the Environment

Plaintiff

and

Rodrigues Trucking and Excavating

Defendant

Mr. S Froomkin, QC for the Plaintiff

Mr. K White for the Defendant

The following cases were referred to in the judgment:

Corporate Affairs Commssion (South Australia) v Australian Central Credit Cards [1986] LRC (Comm) 605

Hope Bowker Real Estate v Roderick de CoutoBDLR [1986] Bda LR 19

Benson v Yard Arm Club LtdUNK [1979] 2 All ER 336

Wandsworth Board of Works v United Telephone CoELR (1884) 13 QBD 904

R v Springman [1964] SCR 267

Clean Air Act

Statutory construction — Definition of ‘controlled plant’ and ‘portable’— Enforcement of stop order — Presumption against absurdity or inconvenience

JUDGMENT of Kawaley, Puisne Judge

Introductory

By an Originating Summons dated May 6, 2004, the Plaintiff asks this Court to :

• 1. declare that the stop order that was served on Rodrigues Trucking on December 22^nd, 2003, pursuant to the provisions of section 13 of the Act, was (i) lawfully made, and (ii) has not been complied with by Rodrigues Trucking, and, as a consequence;

• 2. issue an enforcement order against Rodrigues Trucking, pursuant to the provisions of Section 15 of the Act, so as to allow the Minister to cause to be done all such acts as are necessary to be done for the carrying out of the stop order.

With the benefit of sensible consensual case management between the parties and their legal representatives, this matter was listed for trial just under three months after proceedings were initially issued. And only half of the day allotted for the hearing was only required.

This expedition and saving of costs was made possible by the agreement of Counsel that the result of the action depended upon the views of the Court on a narrow point of statutory construction. The broad question is whether the sand sifting and stone crushing equipment of the Defendant currently being utilized at Lot 3, Marsh Lane, Devonshire, is ‘controlled plant’ for the purposes of the First Schedule to the Clean Air Act 1991 (‘the Act’). This question was further distilled into the following narrower issue: is the relevant equipment ‘portable’ and therefore exempted from regulation under the Act?

The factual and statutory matrix

It was common ground that the two machines in question were shown in digital photographs at pages 4–8 of exhibit ‘PSB1’ to the Affidavit of Environmental Officer Patricia Amy Begeman sworn on May 4, 2004 in support of the Plaintiff's Originating Summons.

It is obvious that these heavy metallic machines, one the size of a small bulldozer, and the other the size of a large bulldozer, cannot be easily manually carried, but can conveniently be pulled by a vehicle such as a truck, because they are both fitted with wheels. It was also not in dispute that the relevant equipment is, on a standing basis, being used at the Defendant's industrial site in Devonshire, as opposed to being moved from site to site on an ongoing basis.

This was, to my mind, the only directly relevant evidence on the point of statutory interpretation which ended up as the sole focus of argument. The evidence of the Plaintiff as to the Ministry's view of how the Act applies, in the absence of any coherent evidence of how the Act has been applied in practice, was either irrelevant or of negligible weight. Equally, the Defendant's evidence as to the fact that the machines are described in marketing material as ‘portable’ can have no bearing on how this term is to be construed under the Act.

Nevertheless, the evidence filed also makes it clear that the underlying contest between the parties arises out of the Defendant's desire to maximize the commercial potential of both the plant in question and the land on which it is situated, which conflicts with the Plaintiff's desire to protect the environment from air-borne pollution resulting from the exercise of the Defendant's commercial and property rights, which causes damage to neighbouring properties.

The Act's general scheme may be summarized as follows. Section 3 establishes the Environmental Authority. Section 4 requires a license for the construction of a controlled plant. However, section 4(3) provides that ‘controlled plant’ in this context ‘does not include a controlled plant that is moveable.’ Applications for permits are made to the Authority.

Permits are also issued by the Authority pursuant to sections 7–9 in respect of the operation of a controlled plant. Under section 11, the Minister may make regulations limiting the level of air contaminants for any part of Bermuda, the level of emissions controlled plants may make and prescribing programmes, etc. for measuring emission levels. Under section 13, the Minister may issue a stop order for breach of the Act, any order, any license condition or for any air pollution which creates an immediate danger to human life or property. Related enforcement powers are created.

The First Schedule (‘Definition of “Controlled Plant”’) provides in salient part as follows:

‘For the purposes of this Act, a controlled plant is a plant which is fixed or moveable (but not portable), being one of the following:

(c) a plant for the crushing or processing of gravel, stone or soil …’ [emphasis added].

The Contending Constructions Of ‘Portable’

Had the Act empowered the Minister to declare by notice from time to time either types of plant were covered by the Act or excepted as ‘portable’, enforcement and interpretation of the Act would be far easier. Nor did the draftsman list examples of portable plant, using the type of inclusive ‘definition’ the function of which is ‘to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases’ : Corporate Affairs Commission (South Australia) and Another v Australian Central Credit Union[1986] LRC (Comm) 605 at 609h (High Court of Australia).

Nevertheless, Mr. Froomkin submitted that it was ‘crystal clear’ that the Defendant's plant was controlled plant because it was not ‘portable’ for the purposes of the Act. And relying principally on the 3^rd edition...