R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd  4 All ER 329 (No 2)
OTTON J: This is an application by Greenpeace Ltd for judicial review of a decision by HM Inspectorate of Pollution (HMIP) and the Minister of Agriculture, Fisheries and Food (MAFF) dated 25 August 1993 to grant applications by British Nuclear Fuels plc (BNFL) for variations of authorisations under the Radioactive Substances Act 1960 (as amended) to discharge radioactive waste from BNFL's premises at Sellafield, Cumbria, in order to test BNFL's (new) thermal oxide processing plant (THORP).....
Mr George Newman QC, leading counsel for BNFL, the party directly affected by the decision under review, submits that in principle and on authority Greenpeace has failed to establish a sufficient interest in the matter to which the application relates and that accordingly the grant of leave should be set aside and in the exercise of my discretion I should disallow the application on that ground, however I may have found on the merits of the case.
In advancing this argument Mr Newman was careful to preface his submissions by emphasising that this issue does not question the sincerity of Greenpeace and its supporters for the causes it supports. BNFL do not seek to question the legitimacy of Greenpeace's objectives and views. The question at issue is not the extent of its reputation and the extent to which it is known nationally and internationally or the integrity of its aims....
Mr Newman took me through an extensive and helpful review of the authorities....
In particular he relied upon the speeches in the House of Lords in IRC vNational Federation of Self-Employed and Small Businesses Ltd... It was held that the applicants did not have a sufficient interest in the matter to which the application related. The federation was merely a body of taxpayers which had shown no sufficient interest in that matter to justify their application for relief and the federation had completely failed to show any conduct of the revenue which was ultra vires or unlawful. In particular he relied upon extracts from three of the speeches. Lord Wilberforce said ( 2 All ER 93 at 96,  AC 617 at 630):
"it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and the breach of those said to have been committed".
From Lord Diplock ( 2 All ER 93 at 101,  AC 617 at 636):
"the questions (1) what was the public duty of the Board of Inland Revenue of which it was alleged to be in breach, and (2) what was the nature of the breaches that were relied on by the federation ... need to be answered in the instant case before it is possible to say whether the federation has (a sufficient interest in the matter to which the application relates";
and per Lord Fraser ( 2 All ER 93 at 108,  AC 617 at 646):
"The correct approach ... is ... to look at the statute under which the duty arises, and to see whether it gives any express or implied right to persons in the position of the applicant to complain of the alleged unlawful act or omission".
He also submitted that the analysis of Schiemann J in ex p Rose Theatre Trust Co was a correct statement in principle....Mr Newman takes as his starting point the context of the 1960 Act. He submits that Parliament's purpose in passing the statute is to permit such activities subject to regulation by the designated statutory authorities, not to forbid them altogether. There are built into the statutory framework provisions for consultation in respect of new authorisations and even variations. Thus, there is no express or implied right to persons in the position of Greenpeace to complain of the alleged unlawful act or omission. He analysed the position of Greenpeace in relation to the statutory duties and powers. He emphasised that Greenpeace's primary object is:
"In the United Kingdom and internationally to promote, encourage, further, establish, procure and achieve the protection of wildlife and the elimination of threats and damage to the environment or the global environment of the earth".
Thus Greenpeace asserts that it represents a wider public interest. This demonstrates that the complaint is in furtherance of Greenpeace's general campaign against the use of radioactive material and the disposal of radioactive waste. Greenpeace merely subscribes to a different view as to the risks associated with such activities from that formed by the authorities charged by statute to regulate and control these activities. Thus Greenpeace's complete opposition to authorising the disposal of radioactive waste is fundamentally incompatible with the statutory scheme adopted by Parliament in the 1960 Act. The fact that an individual or a pressure group has commented on a proposed decision and those comments have been considered by the statutory authorities does not confer on the individual or pressure group a sufficient interest in the decision to challenge the decision by proceedings for judicial review. To hold otherwise, he submits, would be to discourage the statutory authorities from inviting or considering comments from the public beyond their statutory obligations to do so.
He further analyses the challenge to the lawfulness of the procedure and comments:
"This is the classic case of the busybody. The nub of Greenpeace's complaint is that, although it has itself the opportunity to make comments the decision is flawed because some person or body should have been consulted. Allegations that procedural rights have not been respected are properly vindicated by those entitled to those rights and not by a pressure group which itself has no practical complaint".
In any event, he submits the case does not fall within the exceptional category envisaged by the House of Lords of 'flagrant and serious breaches of the law' or 'exceptionally grave or widespread illegality' or 'a most extreme case' which would justify an exceptional approach to the question of 'sufficient interest' (see IRC v National Federation of Self-Employed and Small Businesses Ltd)....
In reaching my conclusions I adopt the approach indicated by Lord Donaldson MR in R v Monopolies and Mergers Commission, ex p Argyll Groupplc  2 All ER 257 at 265,  1 WLR 763 at 773:
"The first stage test, which is applied on the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant's interest is one of the factors to be weighed in the balance"....
Thus I approach this matter primarily as one of discretion. I consider it appropriate to take into account the nature of Greenpeace and the extent of its interest in the issues raised, the remedy Greenpeace seeks to achieve and the nature of the relief sought.
In doing so I take into account the very nature of Greenpeace. Lord Melchett has affirmed thus:
"Greenpeace International has nearly 5 million supporters worldwide; Greenpeace UK has over 400,000 supporters in the United Kingdom and about 2,500 of them are in the Cumbria region, where the BNFL plant is situated. Greenpeace is a campaigning organisation which has as its prime object the protection of the natural environment".
Greenpeace International has also been accredited with consultative status with the United Nations Economic and Social Council (including United Nations General Assembly). It has accreditation status with the United Nations Conference on Environment and Development. They have observer status or the right to attend meetings of 17 named bodies including Parcom (Paris Convention for the Prevention of Marine Pollution from Land Based Sources).
BNFL rightly acknowledges the national and international standing of Greenpeace and its integrity. So must I. I have not the slightest reservation that Greenpeace is an entirely responsible and respected body with a genuine concern for the environment. That concern naturally leads to a bona fide interest in the activities carried on by BNFL at Sellafield and in particular the discharge and disposal of radioactive waste from its premises and to which the respondents' decision to vary relates. The fact that there are 400,000 supporters in the United Kingdom carries less weight than the fact that 2,500 of them come from the Cumbria region. I would be ignoring the blindingly obvious if I were to disregard the fact that those persons are inevitably concerned about (and have a genuine perception that there is) a danger to their health and safety from any additional discharge of radioactive waste even from testing. I have no doubt that the issues raised by this application are serious and worthy of determination by this court.
It seems to me that if I were to deny standing to Greenpeace, those it represents might not have an effective way to bring the issues before the court. There would have to be an application either by an individual employee of BNFL or a near neighbour. In this case it is unlikely that either would be able to command the expertise which is at the disposal of Greenpeace. Consequently, a less well-informed challenge might be mounted which would stretch unnecessarily the court's resources and which would not afford the court the assistance it requires in order to do justice between the parties....Greenpeace...with its particular experience in environmental matters, its access to experts in the relevant realms of science and technology (not to mention the law), is able to mount a carefully selected, focused, relevant and well-argued challenge....This responsible approach undoubtedly had the advantage of sparing scarce court resources, ensuring an expedited substantive hearing and an early result.....
I also take into account the nature of the relief sought. In IRC v National Federation of Self-Employed and Small Businesses Ltd the House of Lords expressed the view that if mandamus were sought that would be a reason to decline jurisdiction. Here, the primary relief sought is certiorari (less stringent) and, if granted, the question of an injunction to stop the testing pending determination of the main applications would still be in the discretion of the court. I also take into account the fact that Greenpeace has been treated as one of the consultees during the consultation process...
It follows that I reject the argument that Greenpeace is a 'mere' or 'meddlesome busybody'. I regard the applicant as eminently respectable and responsible and its genuine interest in the issues raised is sufficient for it to be granted locus standi.
I should add that Lord Roskill in IRC v National Federation of Self-Employed and Small Businesses Ltd  2 All ER 93 at 117,  AC 617 at 659 approved the commentary to Ord 53 in The Supreme Court Practice 1989 (see now The Supreme Court Practice 1993 vol 1, para 53/1(14/11) that the question of whether the applicant has a sufficient interest appears to be -
a mixed question of fact and law; a question of fact and degree and the relationship between the applicant and the matter to which the application relates, having regard to all the circumstances of the case.
Thus it must not be assumed that Greenpeace (or any other interest group) will automatically be afforded standing in any subsequent application for judicial review in whatever field it (and its members) may have an interest. This will have to be a matter to be considered on a case by case basis at the leave stage and if the threshold is crossed again at the substantive hearing as a matter of discretion.
I also bear this consideration in mind when I respectfully decline to follow the decision of Schiemann J in R v Secretary of State for the Environment, ex p Rose Theatre Trust Co  1 All ER 754,  1 QB 504. Suffice it to say that the circumstances were different, the interest group had been formed for the exclusive purpose of saving the Rose Theatre site and no individual member could show any personal interest in the outcome. In any event his decision on the locus standi point (as indeed is mine) was not central to his decision.