COURT OF APPEAL UPHOLDS AUGEAN'S PERMISSION FOR THE DISPOSAL OF RADIOACTIVE WASTE

The Court of Appeal has upheld a planning permission for the disposal of radioactive waste at a site in Northamptonshire.

Local residents had sought to challenge the decision of the Secretary of State on the basis that the Environmental Statement did not describe the cumulative, indirect and secondary effects of the development sufficiently because it did not include information about a future application for an extension to the permission which the operator, Augean plc, had confirmed it would be submitting. They argued that the Secretary of State's conclusion that no further environmental information was needed was incompatible with his finding that the development would form a precedent for the future application.

Further, it was argued that EU law required the courts to apply a closer degree of scrutiny to administrative decisions than traditional Wednesbury principles.

Upholding the judgment of HHJ Stewart QC in the Court below, the Court of Appeal (LLJ Laws, Tomlinson and Kitchin) held that what was a cumulative, indirect or secondary effect was a matter of fact, degree and judgement, and the Secretary of State had not fallen into Wednesbury error, R (oao Davies) v. Secretary of State for Communities and Local Government [2008] EWHC 2223 (Admin), Brown v. Carlise City Council [2010] EWCA Civ 523; [2011] Env LR 5 applied.

Obiter the Wednesbury standard of review was adequate in EU cases. There was nothing in the ECJ jurisprudence to suggest that the English courts' approach was wrong, and there was no reason to move the law on (R (Buglife) v Medway Council [2011] EWHC 746 (Admin) at [44] doubted).  

The Court declined to make a reference to the ECJ and refused permission to appeal to the Supreme Court.

Robert McCracken QC and Annabel Graham Paul appeared for Augean plc. in the Court of Appeal and High Court. They were instructed by Claire Brook of Dickinson Dees. Richard Phillips QC acted for Augean at the planning inquiry.

For a press article on the decision, click here: http://www.bbc.co.uk/news/uk-england-northamptonshire-15573178