Standing issues in judicial review

The High Court has given a liberal interpretation of standing rules where an individual seeks to challenge the legality of an environmental permit. A local resident who was apparently homeless at the time of the application and played no significant part in statutory consultation processes was nevertheless held to have sufficient standing to apply for judicial review - and the fact that he was probably chosen as a test applicant who would qualify for legal aid did not amount to an abuse of legal process.

R (on the application of Edwards) v Environment Agency and another (Queen's Bench Division (Administrative Court) [2004] EWHC 736, 2 April 2004) concerned Rugby Cement's works in Rugby.

Last year, following an extended consultation exercise against a background of considerable local opposition, the Environment Agency granted the company a pollution prevention and control (PPC) permit authorising it to burn waste tyres on a trial basis (ENDS Report 345, pp 9-10 ).

The judicial review application raised two key issues concerning the legality of the permit: whether a PPC permit was a "development consent" within the meaning of the 1985 EU Directive on environmental assessment, implying that the permitting procedure should have been subject to the assessment requirements; and whether the Agency had failed to ensure that the company used the "best available techniques" (BAT).

The present decision was not concerned directly with these issues, but with the initial question of whether the applicant had sufficient standing to bring the case in the first place.

The court also had to consider whether, even if he had standing, it was an abuse of process to bring the claim given the circumstances of the case.

The Environment Agency noted that the claim for judicial review had not been brought directly by known opponents of the permitting decision such as the local council or the campaign group Rugby in Plume. The applicant had made no representations to the Agency during the consultation process, and did not seem to have attended any of the public meetings.

The claim form stated that Mr Edwards was a resident of Rugby but no address was given, and according to a local councillor he was currently homeless, though in the past he had lived at a number of addresses in Rugby.

However, it did not follow that he was not concerned about the environmental effects of the permit decision. According to the councillor, he had expressed concern to her about the cement works, and in his witness statement said that he had attended meetings, even if he was not an active member of the local campaign.

According to the court, the leading light of Rugby in Plume was Mrs Lillian Pallikaropoulos, who had instructed solicitors now acting for Mr Edwards, had committed substantial funds of her own to the campaign, and was committed to challenging the legality of the Agency's decision.

Following advice from leading counsel, Rugby Borough Council had decided not to seek judicial review itself. Mrs Pallikaropoulos was then reported as stating that since she owned her house she would not qualify for legal aid, and the campaign needed someone who could take the case forward on public funds.

Mr Justice Keith acknowledged that Mr Edwards did not say that he had responded to this request for assistance, but nevertheless concluded: "It is difficult to resist the inference that Mr Edwards has been put up as a claimant in order to secure public funding of the claim by the Legal Services Commission when those who are the moving force behind the claim believe that public funding for the claim would not otherwise have been available."

It was against this background that the court considered whether Mr Edwards should be entitled to proceed with the claim. The test for standing in judicial review is that the claimant has "sufficient interest" in the matter at hand.

A generation ago, courts would tend to interpret this phrase to mean that the individual needed to own property that was affected, but they have since adopted an increasingly liberal approach.

In the present case, however, the Agency argued that a central plank of the legal challenge was the failure to apply the environmental assessment requirements to the PPC permitting procedure. This in turn affected the nature of the public consultation process and the way that information was made available to the public. Mr Edwards appeared to have played no part in the consultation process and therefore, according to the Agency, could not be said to have sufficient interest in the matter.

Mr Justice Keith was quick to dismiss this line of argument. It failed to deal with the second main line of challenge concerning BAT.

Furthermore, it did not acknowledge that Mr Edwards was entitled to leave it to others such as the local authority or Rugby in Plume to act on his behalf: "You do not have to be active in a campaign yourself to have an interest in the outcome...You should not be disbarred from subsequently challenging the decision on the grounds of inadequate consultation simply because you choose not to participate in the consultation exercise, provided you are affected by its outcome."

The court was satisfied that Mr Edwards, even if temporarily homeless, was an inhabitant of Rugby and therefore would be affected by any adverse environmental impact which might result from the permitted operations. Accordingly, he had sufficient interest for the purpose of standing.

The court still had to deal with the question of whether bringing the claim in the name of an individual chosen solely for the purposes of qualifying for legal aid was an abuse of process.

The Agency referred the court to two recent cases concerning parents challenging decisions of local educational authorities, where the actual proceedings had been brought in the name of their children.

In one case, it was clear that the child had been chosen to qualify for legal aid and protect the parents against adverse costs orders. The claim had been dismissed as an abuse of the court process.

In the second case, the Court of Appeal had allowed the claim to proceed, but accepted that if there were clear evidence that proceedings had been brought in the name of the child in order to obtain public funding, this might amount to an abuse.

However, Mr Justice Keith doubted whether these cases were on all fours with the present application. There, it was in reality the parents' claim rather than the children's interest that was directly at stake. In the present case, in contrast, Mr Edwards himself was affected by the permit decision and there was nothing in addition which prevented him from having a sufficient interest.

Moreover, he felt that if there were an abuse it was one that really was a matter for the Legal Services Commission. It was clear that the Commission was fully aware of Mr Edwards' circumstances, since Rugby Cement had written to it to question whether the proceedings were really for his benefit rather than that of other individuals.

Mr Justice Keith noted that if the Commission had really felt that the claim was for the benefit of others who could reasonably be expected to contribute to the costs of litigation, they could have been required to contribute as a condition of the grant of funding.

In the event, it was clear that the Commission had granted the certificate in the knowledge of all the surrounding circumstances, and must have addressed the question of whether the grant would or would not be an abuse. The court therefore concluded that no abuse of process was involved.

The legal issues at the heart of the dispute over the Agency's grant of the permit will now be aired at a full hearing.

Although questions of standing and abuse often turn on their own facts, the present decision is a significant development of principles. Certainly, it indicates that in future it will be difficult to refuse standing to local inhabitants where environmental decisions are involved.

Richard Macrory, Professor of Environmental Law, University College, London

Richard Macrory is a board member of the Environment Agency but the views expressed here are personal

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