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Phenom Limited (Appellant) v. National Environmental Management Authority (Respondent)

País/Territorio
Kenya
Tipo de la corte
Nacional - corte superior
Fecha
Jun 4, 2005
Fuente
UNEP, InforMEA
Nombre del tribunal
National Environment Tribunal at Nairobi
Juez
Kaniaru, D.
Waudo, S.
Dwasi, J.
Njihia, J.,K.
Número de referencia
Tribunal Appeal No. NET/04/06/2005
Idioma
Inglés
Materia
Tierra y suelos
Palabra clave
EIA Manejo de tierras Autorización/permiso
Resumen
PHENOM Limited, the Appellant, appealed against the Respondent’s condition on its proposed housing development. The proposed development was a housing project in which the Appellant intended to construct 21 housing units in an eight-storey building on a 0.3035 hectare parcel of land in Nairobi. The respondent’s letter had ordered that the project had to be scaled down from seven levels to a maximum of four storeys only from the ground level. Development of three storeys/levels of dwellings below ground level was not permitted. Besides, development of more than four storeys would not comprise a structure of a scale keeping with those in the surrounding area and, hence was not environmentally sound. No residential floor should be permitted below ground level. The appellant appealed against the limitation of the construction to four floors and the prohibition of appellant’s construction of residential floors below ground level and questioned the authority of the respondent to regulate the proposed activity. The Tribunal held that the Respondent had authority to deny approval of a project, approve a project or approve a project subject to such conditions that it deemed necessary to prevent and/or reduce negative environmental impacts that might result from an activity. In law, the environment had been broadly defined, to include the physical factors of surroundings of human beings, including land, water, social factors of aesthetics as well as the natural and the built environment. Therefore, the Respondent had authority to regulate the Appellant’s proposed activity and place conditions as necessary to protect the environment. The Respondent had not acted ultra vires in placing conditions on the Appellant’s proposed development. The respondent had consulted with lead agencies, including the City Council, to ensure that a sound decision devoid of inconsistencies was made, prior to placing limitations on the Appellant’s proposed development. The Tribunal decided that the appeal failed and ordered that the appellant had to re-draw the building plan to conform to a maximum of four floors, starting from the river side ground level before re-submitting the revised plan to Nairobi City Council for approval. Once satisfied that this was fulfilled, the respondent would be at liberty to issue an EIA license to the Appellant in accordance with applicable zoning and building regulations and policies.
Texto completo
COU-143726E.pdf