SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Similarly, the grant of planning per- mission may authorize activities that give rise to claims in nuisance. In granting a planning application it must be assumed that the planning authority has balanced the impact of the development upon private interests (e.g. neighbors) with any compet- ing public interests and concluded that the public interests in allowing the develop- ment to proceed should prevail.
After some hesitation, the courts appear to have decided, properly, it is sub- mitted, that planning approval does not foreclose upon the separate question of the right to proceed in nuisance law. The con- troversial ruling of Buckley J. in Gillingham Borough Council v. Medway (Chatham) Dock Co. Ltd raised concerns that any activities engaged in under a planning per- mission could not lead to liability in nui- sance. More recent decisions, however, seem to have narrowed the effect of the judgment considerably. In Wheeler v. JJ Saunders Ltd the view was taken that plan- ning permission does not act as a defense to a claim in nuisance; rather Buckley J’s decision went to the heart of the definition of a nuisance, and the locality doctrine in particular. The question was whether the development pursuant to the grant of plan- ning permission had so changed the nature of the area that what would have been a nuisance before the development could not be considered so now.
The heavy reliance placed on 'framework' legislation, fleshed out by guid- ance, regulations and decisions of the enforcing authorities means that many of the everyday rules of environmental protec- tion are made without the scrutiny of parlia- ment. Similarly, statutory requirements, such as that the environmental agencies
consult with other authorities or the public, publish documents, require the environ- mental impact assessments, are not super- vised by the legislature. Scrutiny of admin- istrative regulation must therefore be undertaken by the courts, which ensure, through the mechanism of judicial review, that the authorities perform their duties properly.
Recent developments in the law support the thesis that the way in which judicial discretion is exercised to interpret legal standards is directly proportional to the usefulness of judicial review as a mech- anism for environmental protection. A par- ticularly vexing issue concerns the judicial interpretation of the standard applicable to the question of standing to seek judicial review.
The Standing Requirement
In order to have standing to bring an action for review, the applicant must demonstrate that he or she possesses a "sufficient interest" in the matter to which the application relates. Until recently the courts over the common law world all adopted a restrictive interpretation to the standing requirement. They ruled in a num- ber of cases that environmental pressure groups or public-spirited individuals did not satisfy the Boyce v. Paddington Borough Council test so as to obtain review. For example, in R. v. Secretary of State for the Environment ex p. Rose Theatre Trust, an interest group specifically formed to defend the remains of an Elizabethan theatre, was refused standing. It was held that, as indi- viduals, none of the group had any special interest in the matter over and beyond the general interest of the public. The case resulted in a great deal of criticism and was a blow to the notion of environmental litiga- tion in the public interest. Among other things, Rose Theatre Trust appeared unconcerned, or at least not overwhelmed by the probability that no one could sue in