Waste Recycling Group Ltd, R (on the application of) v Cumbria County Council

In environmental planning challenges, a commercial competitor may have sufficient interest to seek judicial review, but standing does not require relief. The court must consider the claimant’s relationship with the decision, the strength and substance of the alleged breach, promptness, prejudice to others, and whether quashing would serve the public interest. Waste handling involving transfer, recycling, recovery and storage may fall within an environmental assessment description of an installation for the disposal of waste. A defective planning notice will not justify quashing where the claimant understood the decision and suffered no prejudice. A late or strategically delayed challenge may be refused, particularly where the permission has been relied upon and substantial irreversible expenditure has followed.

Waste Recycling Group Ltd challenged planning permission granted by Cumbria County Council to Cumbria Waste Management Ltd for waste transfer and materials recycling facilities. The claimant sought permission to apply for judicial review and an extension of time to renew its application after permission had been refused on paper.

The principal grounds concerned alleged failure to undertake environmental assessment, defective reasons in the decision notice, the preference for an alternative claimant-controlled site, and the effect of section 38(6) of the Planning and Compulsory Purchase Act 2004. The court also considered delay, the claimant’s commercial interest, and expenditure incurred in reliance on the permission.

1. Permission and extension of time refused. The application to extend time for renewal was refused. Even if time had been extended, permission to apply for judicial review would have been refused.
2. There was a strongly arguable case that the proposal fell within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 as an installation for the disposal of waste. Disposal could encompass transfer, recycling, recovery and storage. The court preferred that approach, applying the reasoning relied upon from Commission v Italy ECJ C-486/04.
3. The poor and internally illogical notice under article 22 of the Town and Country Planning (General Development Procedure) Order 1995 was a technical breach. The officer’s reports had addressed the relevant planning considerations, the claimant understood what had been decided, and no prejudice resulted. The breach therefore could not justify quashing the permission.
4. A commercial competitor is not automatically excluded from having sufficient interest. Under section 31(3) of the Supreme Court Act 1981, sufficiency of interest depends on the claimant’s relationship with the subject matter. Once the threshold beyond that of a mere busybody is met, the issue also informs the court’s discretion. The court applied the approach in R v Secretary of State for Transport, ex p Presvac Engineering [1991] 4 Admin LR 121 and the warning in R (Noble Organisation Ltd) v Thanet DC [2005] EWCA Civ 782 against using judicial review as a commercial weapon.
5. The claim was not filed promptly. The claimant had delayed its pre-action letter and proceedings, reassessed its case late, and failed initially to obtain all relevant planning reports. The environmental assessment point did not establish public-interest harm or justify relief for this claimant. The interested party had incurred substantial expenditure and assumed liabilities after the time for renewal appeared to have expired, creating substantial prejudice.