Ecogen Developments Ltd v Secretary of State for Trade and Industry

Judicial review is concerned with remedying real unfairness, not technical complaints or procedural games. Where the alleged unfairness is a failure to allow representations on whether a public inquiry should be held, the decision-maker may offer that opportunity before the court determines whether to quash the decision. The claimant should use the opportunity and identify the substantive reasons supporting an inquiry. A court may refuse relief where the claimant unreasonably declines repeated invitations to make those representations. The decision-maker may fairly consider the representations and, if persuaded that an inquiry is appropriate, the earlier decision may then be quashed by consent.

Ecogen Developments Ltd sought judicial review of the Secretary of State’s refusal of consent for a wind farm under section 36 of the Electricity Act 1989 and refusal to give a direction under section 90(2) of the Town and Country Planning Act 1990. Ouseley J granted permission to pursue a procedural-fairness ground, namely that Ecogen had not been given an opportunity to explain why an inquiry or other hearing should be held. Sullivan J declined to quash the decision after the Secretary of State offered that opportunity three times, but Ecogen made no representations. Sullivan J dismissed the claim. This was a renewed application for permission to appeal.

Application refused. Laws LJ held that the application was founded on an unreal distinction between the validity of the original decision and the opportunity to make representations about an inquiry.

1. Judicial review is not a procedural game. Its purpose is to remedy real unfairness rather than technical complaints.
2. The alleged unfairness was discrete: Ecogen had not previously been invited to explain why an inquiry should be held. The Secretary of State could give genuine and meaningful consideration to that issue without the original decision first being quashed.
3. The Treasury Solicitor had invited Ecogen to make representations on three occasions. Ecogen could have explained its reasons, including on a without-prejudice basis, but instead declined to do so.
4. There was no reason to suppose that any representations would be considered unfairly. If the Secretary of State concluded that an inquiry should be held, the earlier decision could be quashed by consent in the stayed judicial review proceedings, with costs dealt with by the court.
5. In those circumstances, Sullivan J was entitled to exercise his discretion against quashing the decision. Laws LJ dismissed the renewed application. Jonathan Parker LJ agreed.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused. Laws LJ gave judgment; Jonathan Parker LJ agreed.
• High Court, Administrative Court: Sullivan J dismissed the judicial review claim on 2 May 2002, declining in the exercise of discretion to quash the Secretary of State’s decision.
• High Court, Administrative Court: Ouseley J restored the judicial review application and granted permission to pursue the procedural-fairness ground concerning the absence of an opportunity to make representations about an inquiry.
• High Court: Maurice Kay J had initially refused permission for judicial review on the papers.