BNFL already possessed authorisations for liquid and gaseous radioactive releases from Sellafield, the current ones dating from 1986 and 1990. In April the company applied for new authorisations, primarily to accommodate the operation of the THORP plant, whose construction was given the go-ahead following the Windscale Inquiry in 1977. These applications have yet to be determined.
Meanwhile, BNFL wanted to begin commissioning THORP in order to minimise the delay in operating the plant should the main discharge authorisations be granted. On the basis that commissioning would not increase the currently authorised discharged levels, BNFL initially asked HM Inspectorate of Pollution (HMIP) to amend the schedules to the existing authorisations, but was told that a formal application to vary the authorisations would be needed.
In June BNFL duly submitted an application, and a month later HMIP and the Ministry of Agriculture, Fisheries and Food (MAFF) announced that they were minded to grant the variations. Greenpeace was invited to comment, but questioned the procedures followed and sought leave to apply for judicial review to quash the proposed decision. The application was refused on the grounds of prematurity since no decision had actually been made.
In August, when HMIP and MAFF finally granted the variations, Greenpeace returned to the courts, and this time was given leave to challenge. But the High Court refused to put a stay on the implementation of the variation, which came into effect on 2 September, and the Court of Appeal upheld this decision.
The substantive hearing came before Mr Justice Otton at the end of September, and the grounds of challenge by Greenpeace were finally narrowed to two key issues.
First, it was argued that what had been granted was not strictly a variation of the existing authorisation. BNFL had always accepted that the full operation of THORP would involve applications for new authorisations, and in Greenpeace's opinion the commissioning phase should realistically be viewed as part of the operation. Under section 6 of the 1960 Act, authorisations are granted in relation to "any premises which are used for the purpose of any undertaking", and it was argued that this must be limited to premises existing at the time of the authorisation. Neither the authorisation nor any subsequent variation could relate to THORP, which had not been built when those authorisations were granted.
Mr Justice Otton conducted a lengthy review of the legislation, the terms of the original authorisation, and the variations. He concluded that the variations did not extend to a description of radioactive waste which had not been included in the original authorisations, and that it was irrelevant that the waste might come from a new plant. Nor was it inconsistent to seek a variation for the testing period but a new authorisation for discharges from the main, operational phase of THORP. But he expressly declined to rule whether as a matter of law the main discharges could in fact have been authorised by a variation if the parties had chosen that route.
Underlying Greenpeace's concern were the statutory provisions concerning consultation. Where a variation is sought, the 1960 Act requires no consultation. In contrast, an application for a new authorisation sets in train a consultation procedure, though this is expressed in terms which give extensive discretion to the authorising bodies. Both HMIP and MAFF are required to consult local authorities, local fishery committees, statutory water undertakers or other public or local authorities as appear to them "to be proper to be consulted". And under section 11 of the Act, before granting or varying an authorisation, local authorities and other persons whom the Agriculture Minister or the Environment Secretary consider appropriate may be given an opportunity to make representations at a hearing.
Mr Justice Otton noted the wide discretionary powers as to public consultation, and held that the fact that it had been decided to conduct extensive public consultation on the main application did not undermine the validity of choosing the variation route for the commissioning phase.
Greenpeace's second main argument was that the authorising bodies were obliged under both Government guidelines and Euratom Directives to ensure that the process to which the variation related was justified; this required a wide-ranging consideration of environmental, economic, health and safety and all other relevant factors.
Mr Justice Otton dismissed the argument, although his reasons for doing so are not especially clear. He accepted that the authorising bodies had a duty to consider health and safety aspects, but held that this duty was confined to the testing process itself, since the wider issues were already under consideration through the process of public consultation on the main THORP application. He also felt that in any event the authorising bodies did take into account wider issues, since they were aware that these had been raised during the consultation process. Finally, he concluded that since permission to build THORP had been granted following a lengthy planning inquiry and special Parliamentary process, in a broad sense THORP had already been justified.
Greenpeace had already been given leave to apply for judicial review in this case, and the Government did not question its standing to do so. But in the main hearing, BNFL, as the party who would be directly affected by the decision being reviewed, intervened and argued that the group had failed to establish a legal standing to challenge the decision.
The statutory provisions concerning judicial review prescribe that an applicant must have "sufficient interest", a phrase that clearly gives considerable room for judicial interpretation to weed out those whom they consider to be unmeritorious.
The courts have moved a long way from the post-War period when owning affected property was almost a prerequisite to demonstrate sufficient interest. But several recent decisions have suggested that the courts may be returning to a less liberal approach. Certainly, academic research has shown that the decision on locus is something of a lottery, being closely dependent on the attitude of individual judges.
In the present case, BNFL argued strongly that Greenpeace should not have legal standing. The company did not question the group's integrity, but suggested that this was a classic case of "busybodies". Greenpeace had in fact been consulted on the variation, and it was not up to the group to promote the interests of others who might have been consulted if a different procedure had been followed.
Mr Justice Otton rejected the argument in unusually strong language. Greenpeace, he said, was "an entirely responsible and respected body with a genuine concern for the environment", and had a bona fide interest in BNFL's activities. It was significant that 2,500 Greenpeace supporters came from Cumbria. He also noted that if Greenpeace did not have standing, those that it represents were unlikely to be able to bring the issues before the court in an effective manner. Individuals would lack sufficient expertise, and the involvement of a professional pressure group ultimately saved court time in allowing the issues to be properly honed down and marshalled. Greenpeace was able to mount "a carefully selected, focused, relevant and well argued challenge."
Should Greenpeace go ahead with its pledge to challenge the legal validity of a decision to grant the main application for THORP, the issue of standing could in theory be raised again. But given the present ruling, it would take a bold judge to come to a contrary decision on the point.
The decision, though, does not guarantee that either Greenpeace or other environmental groups can be assured of standing in any future environmental case, and each decision has to be looked at on its own facts. But Mr Justice Otton's powerful endorsement of the legal efficiency of allowing professionally organised environmental groups to take the lead in such litigation is bound to have some judicial impact in the future.