Advise SWH on whether it has locus standi to seek judicial review of the grant of planning permission.

First it must be established whether the applicant has an ‘arguable case’, at present leave will be refused if is clear that the applicant does not have an arguable case, this element is based on excluding ‘obvious hopeless cases’.  Secondly the applicant must be able to show that they have ‘standing’ or locus standi in relation to the alleged abuse of power.  This is the legal issue to be examined here – does the SWH have sufficient interest in the matter relating to the claim to be able to apply for judicial review?

As quoted by Jones (1997):

“The question of locus standi of applicants seeking to challenge decisions by planning authorities to grant planning permission has been the subject of recent and conflicting judicial comment”

The decision for locus standi involves the exercise of discretion on the part of the judge, albeit which is based on fact and law, therefore it is not surprising that there are several variations in the case law on this aspect of judicial review.  Sir Konrad Schiemann has argued that “the label ‘exercise of discretion’ conceals more than it reveals and prevents challenge, improvement and systemisation”.  In the case of IRC v National Federation of Self-Employed and Small Businesses Ltd (1982) the House of Lords held that in cases other than simple cases where it is clear that the applicant does not have a sufficient interest, the question of sufficient interest cannot be considered as an isolated point; it must be considered together with the legal and factual context.  The House of Lords held that the body of taxpayers represented by the federation could reasonably assert that they had a genuine grievance in the alleged failure of the Inland Revenue to do its duty and the granting of an unlawful tax indulgence to the casual workers, and accordingly they had a “sufficient interest” within the meaning of R.S.C, Ord 53 to apply for judicial review.

However, in the case of R v Secretary of State for the Environment, ex p Rose Theatre Trust Co (1990) the established trust applied to the SOS to schedule a site under the Ancient Monuments and Archaeological Area Act 1979 so as to protect it from development without his consent.  He declined to do so and the trust sought judicial review of that decision.  The court held that on the question of standing the trust could have no greater claim to a sufficient interest than its members and before it was formed.  Since no individual member of the trust had standing, it followed that the trust created by those individuals did not have standing either.

In other cases such as R v HM Inspectorate of Pollution, ex p Greenpeace (1994), Greenpeace applied for judicial review of an inspectorates decision.  The Court held that although the court could not find for the applicant on the merits of the case, approaching the locus standi question as a primarily one of discretion, the court concluded that Greenpeace did have standing.  Greenpeace was an eminently respectable organisation with a genuine interest in the issues raised by the application.

It would seem from these cases that the decision on locus standi was not central to the determination of the case.  However, the views illustrated in these cases show that there is a variation in the judical opinion.  It can be construed from this that the question of standing has to be determined on a case by case basis and therefore, an individual or organisation may have a sufficient interest in respect of one application but not in respect of another.  Nevertheless, it can be agued that since The Rose Theatre case, the judiciary have adopted a more liberal approach to standing.

Thus in the case of R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd (1995) the applicant was held to have locus standi to challenge the government’s decision to contribute financial aid to the Pergau Dam scheme in Malaysia.  In reaching this conclusion, the court took into account a number of factors.  These included; the importance of vindicating the rule of law; the importance of the issue raised; the likely absence of any other responsible challenger; and the national and internation expertise of the applicants coupled with their interest in promoting and protecting aid to underdeveloped countries.

 It is clear to see form this that the courts liberal approach is more apparent and can be shown furthermore in the case of R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg (1994) where the applicant was held to have a sufficient interest to challenge the decision to ratify the Maastricht Treaty on the basis of his ‘sincere concern for constitional issues’.

Bibliography

Books

Bailey, Jones & Mowbray (1997) Cases and Materials on Administrative Law, 2nd Edition, London, Sweet & Maxwell Ltd

Bailey, Jones & Mowbray (1997) Cases and Materials on Administrative Law, 3rd Edition, London, Sweet & Maxwell Ltd

Carroll, A (1998) Constitutional and Administrative Law, London, Pitman Publishing

Pollard, D (2001), Constitutional and Administrative Law, 3rd Edition, London, Butterworths

Thompson, B (1995) Constitutional and Administrative Law, 2nd Edition, London, Blackstone Press Limited

        

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