R v Inspectorate of Pollution, ex parte Greenpeace Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE SCOTT,LORD JUSTICE EVANS |
| Judgment Date | 03 September 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0903-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 September 1993 |
[1993] EWCA Civ J0903-1
(Mr. Justice Brooke)
Before: Lord Justice Glidewell Lord Justice Scott Lord Justice Evans
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR. OWEN DAVIES (Instructed by Sarah Jane Burton) appeared on behalf of the Appllicant
MR. K. PARKER QC (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent
MR. G. NEWMAN QC and MR. A GRIFFITHS (Instructed by Freshfields, EC4Y 1HS) appeared on behalf of British Nuclear Fuels Plc (an interested party)
Friday, 3 September 1993
This is an appeal by Greenpeace Limited against a decision of Brooke J given two days ago on the afternoon of 1 September 1993, when, having granted to Greenpeace leave to appeal for judicial review of the decision of the Respondents, the Inspectorate of Pollution and the Ministry of Agriculture, Fisheries and Food, to issue a variation of an authorisation under the Radioactive Substances Act 1960 in relation to the premises of British Nuclear Fuels Limited at Sellafield, he then refused an application for a stay of the Departments' (as I shall call them) decision to issue the variation. It is against the refusal to grant a stay that this appeal lies.
Put shortly, the position is that the application concerns the thermal oxide reprocessing plant, THORP, which has been constructed by British Nuclear Fuels at Sellafield, formerly Windscale in Cumbria.
The proposed construction of that plant was the subject of a lengthy inquiry in the year 1977, after which an unusual statutory process was followed by which planning permission was given by Parliament for the construction of the plant. Construction then started and was completed in February of 1992. So far, the plant, which is designed for the reprocessing of nuclear fuel from certain nuclear power stations, has not operated.
There is already in existence an authorisation from the Department to operate the plant. It is, however, apparently common ground that, in the event, a new authorisation will be needed before the plant is operated as BNFL intend to operate it. Before that stage is reached, however, what BNFL wish to do is to go through a testing programme which will occupy approximately ten weeks. The evidence before us says that it is actually the fourth phase of a five-stage testing programme, the fifth stage of which will come after the final authorisation has indeed been given.
Rather than applying for a specific authorisation for the testing programme, BNFL applied to the Departments for a modification of the existing authorisation. It was that which was granted to them and which is the subject of the challenge by Greenpeace.
Before Brooke J neither BNFL —who were not, of course, parties to the proceedings as such, but who had been notified and were present at the hearing —nor the Department, objected to leave being granted by the learned judge. At present, a date has been fixed for the hearing of that application in substance by Otton J on 14 September of this year. We are told by Mr. Newman for BNFL that they are still pressing for a slightly earlier date, but we must work on the basis that the hearing will be on the 14th, with the judgment, presumably, shortly thereafter.
While they have not objected to the grant of leave, both the Department and BNFL are, I apprehend, going to argue strenuously that the substantive application should be refused. Indeed, Mr. Newman has now made it clear that they are going to argue that Greenpeace really have no locus standi to make this application at all.
Those, however, are not matters that need concern us because leave has been granted. On the application for a stay, the learned judge was in this initial difficulty: first of all, until recently as a general principle stays against Departments of the Crown were very rare creatures. The Judge, basing himself upon the decision of this Court in R v. Secretary of State for Education and Science Ex parte Avon County Council [1991] 1 QB 558, concluded that he did indeed have jurisdiction to grant a stay. The matter has not been canvassed before us and the hearing has proceeded on the basis that the Judge did indeed have jurisdiction, had he been minded to grant a stay.
That then, however, raised for the Judge this difficult question (on which, so far as I know, there is no authority of this Court): where it is sought to stay a decision of a government department, and the effect of granting the stay will be to affect detrimentally the operations of a third party who are not parties to the proceedings, what is the proper approach for the Court, from which the stay is sought, to adopt?
If the third parties are made third parties to the proceedings, as they could be, and if an interlocutory injunction were sought against them, then the answer to the question would be clear: the Court would then apply the normal principles it applies when an interlocutory injunction is sought, those laid down in American Cyanamid [1975] AC, 396.
In this case, that did not happen because BNFL were not made parties and no interlocutory injunction has been sought against them. It is quite clear, in my view, that Brooke J treated this application for a stay, in a sense, as if it were an application for an interlocutory injunction against British Nuclear Fuels, and he applied the principles he would have applied had he been considering such an application. In my judgment, he was entirely right to do so. If third parties are to be affected by decisions on applications for a stay and not directly made parties by way of applications for an injunction against the particular third party, then, in my view, nevertheless, the same principles should be followed.
The matters which the learned judge took into account in exercising his jurisdiction on those principles were these: firstly, a major reason for not granting a stay is that it was the governmental body charged with the task of deciding upon whether this plant could properly and safely be operated which had issued the amendment to the authorisation, that is to say, Her Majesty's Inspectorate of Pollution and the Ministry of Agriculture Fisheries and Food.
There was evidence before the judge as there is before us, that the additional radioactive discharge from the plant which will result from this testing process taking place will not be uncountable, but will be very small indeed. Moreover, the evidence is that it will not require any alteration of BNFL's existing authorisation to discharge radioactive material either into the air or in liquid form into the sea. Those discharges will be contained within the volumes permitted by those authorisations.
Added to that, the Judge had evidence which clearly impressed him that if, as a result of a stay, the commissioning testing process is held up and, in the end, BNFL are permitted to go ahead with the operation of THORP, there is at least a risk —they put it higher than that; they say it is probable —that they will suffer a loss as a result of the delay. They quantify that at approximately £250,000 a day. Presumably they are already suffering loss as a result of not having got the plant into operation since it was completed in February 1992. That is the sort of figure that they are claiming.
It is not, of course, entirely clear that they will necessarily suffer a loss if they are subjected to two weeks' delay, because the process of making a decision as to whether they can go ahead with the operation of THORP after the testing procedure is still subject to decisions of Ministers which, even if they come down in favour of BNFL, will not necessary be made in a timescale which would result in a delay for two weeks or so having any effect at all. Nevertheless, there was the evidence and it impressed Brooke J.
On the other hand, he had to balance that against the very real concern of members of Greenpeace. There was evidence —which Greenpeace are presumably going to adduce at the hearing before Otton J and at any other hearings which are open to them —challenging the scientific evidence which was accepted by the Department. Put very shortly, if I understand it correctly, it is Greenpeace's stance that any additional emission of irradiated material into the atmosphere, is harmful and should not be permitted unless there is some clear benefit. They argue that THORP has no beneficial effect. It exists purely to enable British...
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