● Historically, judges had attempted to limit applications for judicial review by imposing a rigid interpretation of locus
● A more liberal interpretation means that tenuous links between a development and a third party can suffice for locus and funding
Over the years, we have examined cases where planning permissions have been challenged, sometimes successfully, by third parties applying for judicial review. So far, successive governments have resisted pressure to introduce third-party rights of appeal, so the High Court remains the main route of challenge for third parties. R (on the application of Edwards) v Environment Agency [2004] EWHC 736 (Admin) shows just how attractive judicial review is for third parties and serves as a warning to developers and planning authorities.
Not so long ago, the courts tried to limit the ability of objectors to bring applications for judicial review by restrictively interpreting the rules as to locus. In recent years, judges have begun to favour a more liberal interpretation. It now seems that even tenuous links between a third party and the development suffices for the purposes of both locus and the securing of Legal Services Commission funding.
In Edwards, the claimant sought to challenge, by way of judicial review, the issue of a permit, under Part I of the Environmental Protection Act 1990, granted in relation to the burning, by a cement plant, of tyre chips as a partial substitute for the more normal fuels. The Environment Agency sought to challenge the claimant’s standing. On counsel’s advice, the local planning authority decided not to pursue a claim for judicial review. The leading light of a public campaign against the use of tyres was reported as saying that she had “already forked out £20,000 of her own money during the legal fight”, and as “pledging to carry on the battle using legal aid”. According to the judge she had also been reported as saying that she was too rich to get legal aid “so someone has to come forward who feels strongly enough to take the case forward under the legal aid scheme”.
Along came the claimant. He had lived in Rugby for most of his life at a large number of addresses but was, at that time, homeless. However, he had played no active part in the public campaign and, as the judge noted, “it is difficult to resist the inference that Mr Edwards has been put up as a claimant in order to secure public funding”.
The agency argued that even if (as the judge had held) Edwards had had a sufficient interest to bring the claim, it was an abuse of the court’s process for him to do so. The question of someone being chosen to bring a claim because he or she would be more likely to obtain public funding was discussed in the education law judicial review of R v Richmond London Borough Council, ex parte JC [2001] ELR 21. This concerned the rights of parents to have their child educated at the school of their choice. The court considered, albeit obiter, that an application made in the name of the child, so as to obtain legal aid and to protect the parents from paying the costs, was, in the words of Kennedy LJ, “an abuse” — one that Ward LJ commented “must be curtailed”.
But in another education law case — R (on the application of WB) v Leeds School Organisation Committee [2002] EWHC Civ 1927 (Admin); [2003] ELR 67 — the Court of Appeal took a different view. Sedley LJ, in giving permission to appeal, held:
We are not persuaded that the fact that some of the parents who were objectors are ineligible for public funding and have a sufficient interest is necessarily enough to render the claim an abuse, and we think that the concept of a device needs elaboration.
In the substantive hearing, the court concluded that although these circumstances could amount to an abuse “clear evidence would be needed to establish this and there is no such clear evidence in the present case”.
Education law, like planning and environmental law, is simply a part of the wider body of public law. For that reason alone, the implications of the decision of Keith J in Edwards need to be appreciated. He held that the claimant had been affected by the decision to issue the permit and that nothing prevented him from having a sufficient interest in bringing the claim. He further held that “it is not so much the court’s process that is being abused, rather the possibility that it is the Commission which may have decided to fund Edwards’ claim without being fully informed of the facts”. In this case, the solicitor for the cement company had written to the commission questioning the decision to grant public funding. Yet Edwards had a funding certificate. Thus, the commission was deemed to have addressed the issue and been satisfied that his claim merited public funding. The claim was therefore allowed to proceed.
Martin Edwards is a specialist planning barrister in 39 Essex Street Chambers and John Martin is a solicitor and director of property law research at Pinsents
