C & G Concrete Ltd v Secretary of State for the Environment Food and Rural Affairs

In judicial review of regulatory permit conditions, an inspector may impose requirements more stringent than one part of published guidance where the guidance, read as a whole, supports the requirement and the reasoning explains the practical basis for it. A weekly inspection of silo-top equipment was lawful where weekly inspection of pressure-relief devices was required and visual inspection of an additional filter component could be carried out during the same visit. A condition should be understood reasonably and practically, including in light of the enforcing authority’s authorised interpretation. Minor ambiguity may be addressed through variation or agreement rather than judicial review. An unsuccessful challenge to inquiry costs will not succeed merely because the central dispute concerned conditions.

The claimant sought judicial review of an operating permit granted by West Lindsey District Council after an inquiry conducted by an inspector appointed by the Secretary of State. The permit governed a concrete batching plant and included conditions concerning inspection of silo-top equipment and the filtration system.

The claimant challenged condition 9, which required weekly silo-top inspections, on the ground that it departed without adequate explanation from guidance referring to inspection of reverse-jet filters at least monthly. It also challenged condition 11 concerning intrusive inspection of reverse-jet components, and the inspector’s refusal to award inquiry costs.

The central issues were whether the conditions unlawfully departed from the guidance, whether condition 11 was properly understood, and whether the costs decision was unlawful.

1. Condition 9. The challenge to the weekly silo-top inspection requirement failed. The guidance distinguished between monthly inspection of reverse-jet filtration equipment and weekly checking of silo pressure-relief devices. Reading the inspector’s report as a whole, the inspector was entitled to conclude that the weekly requirement involved going to the top of the silo to inspect the pressure-relief devices.
2. Once an operator was required to make that weekly visit, requiring a simultaneous visual inspection of the filter lip was neither inconsistent with the guidance nor unduly onerous. The additional inspection did not require dismantling the equipment or a further difficult mechanical operation. The inspector’s reasoning was therefore sufficient, although the judgment recognised some ambiguity between the two types of inspection.
3. Condition 11. The local authority’s interpretation that the condition did not require oppressive or impracticable inspection of every component part of the system was reasonable. The parties could seek a minor consensual variation if necessary. The condition itself did not justify judicial review.
4. The court did not need to decide the Secretary of State’s broad submission that a variation application was generally an alternative remedy. In this case, however, further discussion and a variation application were a practical means of resolving minor issues without further legal expense.
5. Costs. The challenge to the refusal of inquiry costs was hopeless. Significant issues had not been decided in the claimant’s favour, so there was no basis for concluding that the local authority had acted unreasonably under the regulatory regime.
6. Permission for judicial review was refused because the claim lacked sufficient prospects of success and it was not in the interests of justice to grant permission. The Secretary of State was awarded £1,500 summary costs, being the costs ordered for the grounds.

The judgment records that the matter had previously come before Sullivan J on the paper application, but gives no citation for that decision. The present court refused permission for judicial review.