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Citation: 10 Jud. Rev. 128 2005

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[2005] JR

Locus Standi and the Public Interest: A

Hotchpotch of Legal Principles*
Edite Legere
1 Crown Office Row

Introduction
1. Access to the courts is rightly regarded as a matter of constitutional importance.
However, such access is not absolute. This article explores the difference between the
"sufficient interest" standing test to be satisfied by a prospective claimant in judicial
review proceedings, the statutory "person aggrieved"I test under the Town and
Country Planning Act 1990 (TCPA), the "victim" test under s. 7 of the Human Rights
Act 1998 (HRA) and the "direct and individual concern" test under Art. 2302 of the EU
Treaty.
"Sufficient interest" test
2.

In judicial review proceedings, the question of standing is relevant both at the permission and the substantive stage. By virtue of s. 31(1) of the Supreme Court Act 1981 a
court may not grant permission to apply for judicial review unless the claimant has
demonstrated a "sufficient interest" in the matter to which the claim relates. Whether
a claimant has established a sufficient interest is3 a question of both fact and law,
having regard to all the circumstances of the case.

3.

The pre-HRA approach to judicial review, and more specifically to planning

challenges, is well illustrated by Sedley J's judgment in R v (1) Somerset County Council,
(2) ARC Southern Ltd ex p. Richard Dixon (1998) 75 P & CR 175. He stressed that public
law is not about rights, even though abuses of power might, and often do, invade
private rights. Instead, public law is concerned with wrongs, particularly the misuse of
power.

4.

Sedley J made it clear that the English courts have always been alive to the fact that a
person or an organisation with no particular legal interest in the outcome of a case
might wish, and be well placed, to draw the court's attention to an apparent misuse of
public power. Thus, if an arguable case of misuse of public power could be made out
at the application for leave stage, the court's only concern should be that it was not
being made for an ill motive.

5.

In 1994 the courts recognised that a public-spirited citizen without any direct legal
interest in the outcome of the case, unlike a "meddlesome busybody", may be allowed
4
to seek judicial review in cases which present a serious issue of public importance.

I am grateful to Oliver Sanders for his support and encouragement with this article. Any errors are, of course,

my own. This article also appeared in the March 2005 issue of JPL.
The "person aggrieved" test is also used in the Enterprise Act 2002.
Note that the wording of Art. 230 is amended by Art. 111-270(4) of the Draft Treaty establishing a Constitution
for Europe.
3 See R v Inland Revenue Commissioners ex p. National Federationof Self-Employed and Small Businesses [1982] AC 617.
4 R v Secretary of State for Foreign and Commonwealth Affairs ex p. Lord Rees-Mogg [1994] QB 552.
2

[2005] JR

Locus standi and the Public Interest

6.

The "sufficient interest" test which informs judicial review proceedings is a relatively
low hurdle for potential claimants to overcome.

7.

R v (1) Leicestershire County Council (2) Hepworth Building Projects Ltd (3) Onyx (UK) Ltd
ex p. Blackfordby & Boothorpe Action Group Ltd [2001] Env LR 2 concerned the
Waste Management Licensing Regulations 1994.5 Richards J held that an incorporated
action group had a sufficient interest to mount a challenge to a grant of planning permission which affected its members despite the fact that, unlike its members, it did not
have a direct interest in the affected land. Richards J found that there were advantages
to incorporation which should not be withheld from aggrieved persons who wished to
mount a challenge of this kind.

8.

In R (Feakins) v Secretaryof State for the Environment, Food and Rural Affairs [2003] EWCA
Civ 1546 the Court of Appeal reviewed the law on standing. Dyson LJ held that if a
claimant is able to demonstrate that a genuine public interest will be furthered if he is
granted standing, he would be regarded as having a sufficient interest to proceed. As
Professor Purdue points out, "the Court of Appeal is accepting that such persons are
in an analogous position to environmental pressure groups such as Greenpeace, who
are routinely permitted to make public law challenges". 6 Dyson LJ also held that where
a public interest challenge was brought for an improper motive, the existence of a
public interest would not prevent the application being seen as an abuse of process and
dealt with accordingly.

9.

The recent case of R (David Edwards) v (1) The Environment Agency, (2) Secretary of State
(Defendants) & Rugby Ltd (InterestedParty)[2004] EWHC 736 (Admin) concerned a nominal claimant who brought judicial review proceedings on behalf of a pressure group.
A resident of Rugby town was found to have standing to bring a claim for judicial
review of the grant of a permit by the Environment Agency to a cement company. The
permit allowed the company to continue operations at the cement plant and authorised
the use of tyre chips as a partial substitute for existing fuels.

10. Keith J held that the claimant did not have to be active in the campaign against the
permit or have an interest in the outcome of such a campaign. Further, he had a
sufficient interest in the decision to issue a permit even if he was temporarily homeless.
This was because as a resident of Rugby he would be affected by any adverse impact
on the environment which the trials on the use of tyre chips might have.
11. The court found it difficult to resist the inference that the claimant had been put up as
a claimant in order to secure public funding of the claim by the Legal Services
Commission. Although it was accepted that in appropriate circumstances this could
amount to an abuse of process, this manoeuvre was not regarded as an abuse of process
on the particular facts.
12. Edwards suggests that, in what are regarded by the courts as deserving cases, the
"sufficient interest" test is wide enough to allow pressure groups, nominal claimants
and third parties to bring judicial review proceedings. This approach is to be
contrasted with that adopted in the planning statutory review case, Morbaine Ltd v (1)
Secretary of State (2) Stoke on Trent City Council [2004] EWHC 1708 (Admin), discussed
below.

5 SI 1994/1056.
6 "Is there a right for anyone to apply for judicial review in the public interest?" [2004] JPL 861 at 862.

Locus standi and the Public Interest

[2005] JR

The "person aggrieved" test - TCPA 1990, s. 288

13. The hurdle to be overcome by a prospective claimant in respect of conventional planning challenges is set out in s. 288 of the TCPA 1990. It enables a "person aggrieved" to
bring proceedings challenging the validity of orders, decisions and directions. It is
reasonably clear that an applicant with an interest in the land affected by the decision
challenged will more often than not be regarded as a person aggrieved. This is also true
in respect of a local planning authority. The more complex issue is whether third
parties with no direct interest in the land affected can clear the "person aggrieved"
hurdle.
14. In Morbaine (above), Blackburne J held that a party was not a "person aggrieved" for
the purposes of s. 288 of the TCPA 1990 where it did not have any subsisting interest
in the affected land but merely hoped to further its own commercial interests by overturning the grant of planning permission so that it could acquire another area of land.
Commercial opportunism was not enough to render a party a "person aggrieved". This
suggests that in order to be regarded as a person aggrieved, a third party must show a
real interest in getting the relief sought, and/or a degree of proprietary interest in the
land affected by the decision being challenged.
15. The recent Court of Appeal decision in Eco-Energy (GB) Ltd v (1) Secretary of State (2)
Durham County Council [2004] EWCA Civ 1566 is authority for the proposition that a
"person aggrieved" who is entitled to challenge an inspector's decision under
s. 288 of the TCPA 1990 cannot assign that status to another person. Consequently, the
assignee has no standing to make a challenge relying on the purported assignment.
16. In practical terms, on the face of it, it seems odd that there should be different tests for
statutory review and judicial review claimants. The result is that some claimants may
be able to challenge decisions by way of judicial review but cannot mount a challenge
by way of statutory review. In judicial review proceedings the availability of an
alternative remedy will usually disqualify a claimant from proceeding by way7 of
judicial review. Further, statutory review can be an absolute bar to judicial review.

The "victim" test

17. Article 34 of the European Convention on Human Rights envisages applications to the
European Court of Human Rights from any person, non-governmental organisation or
group of individuals claiming to be the victim of a violation by one of the Contracting
States of the rights enshrined in the Convention.
18. Section 7(1) of the HRA sets out the "victim" test and enables a victim of an alleged
existing or anticipatory unlawful act by a public authority to bring proceedings against
that authority, or rely on Convention rights in any legal proceedings. This test,
approved by the European Court of Human Rights, requires an applicant who claims
that a public authority has acted, or proposes to act, in a way incompatible with
Convention rights, to show that he is or would be a victim of the alleged unlawful act.
19. By virtue of s. 2 of the HRA, when determining a question which has arisen in connection with a Convention right, a UK court or tribunal must take into account Strasbourg
jurisprudence.

Huntington v Cornwall County Council [1994] 1 All ER 694

[2005] JR

Locus standi and the Public Interest

20. The "victim" test is narrower than the "sufficient interest" test for judicial review. The
obvious question is how the court is to choose which test to apply in circumstances
where both seem to be available.
21. R v (1) Secretary of Statefor the Home Department (2) Lord ChiefJusticeof England and Wales
ex p. Ralph Bulger [2001] EWHC Admin 119 highlights this problem. This case was a
claim for judicial review brought by the father of the murdered toddler Jamie Bulger.
The preliminary question was whether, having been invited by the Lord Chief Justice
to make representations, Mr Bulger had a sufficient interest to bring proceedings for
judicial review to challenge the tariff fixed by the Lord Chief Justice.
22. The Court of Appeal held that Jamie Bulger's father did not have such an interest.
Rose LJ (at paras [21]-[22]) took the view that if the family of a victim could challenge
the sentencing process, then the family of the defendant could also do so - a
floodgates argument. Further, he held that in criminal cases there was no need for a
third party to intervene to uphold the rule of law. It was held that, at best, Mr Bulger
had limited standing to challenge any failure to have regard to the impact of the
offence on him. This case does not shed much light on how the courts grapple with
the "sufficient interest" and "victim" tests where, on the face of it, both appear to be
available. Indeed, there was no direct reference to the victim test and all the discussion
focussed on whether the applicant had a sufficient interest for judicial review. It
does, however, show that the court can depart from the "sufficient interest" test
in cases of public importance and look at the merits of the case to determine
standing.

"Direct and individual concern" - the EU perspective

23. In today's pan-European climate, very few practitioners remain wholly unaffected by
European law. The EU Treaty is not therefore as out of context in this article as it may
appear.
24. The Treaty provides for two distinct legal challenges: an action for annulment under
Art. 230 and action for failure to act under Art. 232.
25. For present purposes, Art. 230 is the more significant. It provides for review of the
legality of Community legal measures by the European Court of Justice (ECJ). A
distinction is drawn between privileged and non-privileged applicants. Privileged
applicants, namely Member States, the Council, the Commission and, in certain
circumstances, the Parliament, may challenge the legality of acts adopted by
Community institutions intended to produce legal effects viv-h-vis third parties other
than recommendations and opinions without the need to show standing. The ECJ may
annul all or part of the Community act being challenged.
26. By virtue of Art. 230(4), individuals, as non-privileged applicants, may also seek annulment of a Community legal act, provided that it is of direct and individual concern to
them. It is questionable whether the current wording of Art. 230(4) provides adequate
legal protection and access to justice for individuals.
27. Article 111-270(4) of the Draft Treaty establishing a Constitution for Europe changes the
wording of Art. 230 of the EU Treaty. Article 111-270(4) provides that:
"Any natural or legal person may ...institute proceedings against an act addressed to
that person or which is of direct and individual concern to him or her, and against a

Locus standi and the Public Interest

[2005] JR

regulatory act which is of direct concern to him or her and does not entail implementing
measures."

28. Historically, the ECJ has construed the "direct and individual concern" test extremely
8
restrictively.
29. This is to be contrasted with the more liberal approach taken by the ECJ in the 1990s,
particularly in Case C-152/88 Sofrimport v Commission [1990] ECR 1-2477 and Case
C-309 /89 Codorniuv Council [1994] ECR 1-1853.
30. Case 26/76 Metro v Commission [19771 ECR 1875 illustrates that in competition proceedings the Court is likely to take a more generous view to standing and regard a complainant as individually concerned even if the complainant is affected by the measure
in the same way as other members of an open category.
31. In Case C-500 /00P Union De Pequenos Agricultores v Council [2002] ECR 1-6677 the ECJ
reaffirmed its restrictive approach to the "direct and individual concern" test. The ECJ
made it clear that it was for the Member States, not the Court, to amend the Treaty in
order to change the present system of judicial review.
32. Advocate-General Jacobs' Opinion (not followed by the ECJ) in Union de Pequenos
Agricultores v Council (above) suggests (at para. [60]) that an individual should have
standing to challenge the validity of an EU act, whether legislative or administrative,
provided he can show that "by reason of the particular circumstances, the measure has,
or is liable to have, a substantial adverse effect on his interests". This appears to be
preferable to the current wording of Art. 111-270(4). It remains to be seen whether, if
ratified, the Charter of Fundamental Rights, which forms Part 2 of the Draft Treaty
establishing a Constitution for Europe, will require the EU Courts to adopt a more
robust and liberal approach to standing in relation to individuals than appears to be
envisaged from the wording of Art. 111-270(4).
33. Case C-263/02 Commission v Jego-Quere & Cie SA (unreported) is worthy of note
because of the conflicting views taken by the Court of First Instance (CFI), and the ECJ
on appeal. The CFI had initially held that "direct and individual concern" under Art.
230 of the EU Treaty should be interpreted in a less-restrictive fashion than
previously in order to guarantee effective legal protection. A person was to be considered individually concerned if the measure affected his legal position in a manner
which was both definite and immediate, regardless of the number of other persons
affected. The ECJ disagreed, holding, inter alia, that the CFI had erred in law in its interpretation of "individual concern".
34. The ECJ took the view that natural or legal persons who are prevented from challenging a regulation directly before the EU Courts are not necessarily denied the chance to
bring effective proceedings. There are two alternative possibilities open to such
individuals. First, if they were involved in proceedings before the Community Courts
which indirectly challenged such a regulation, they could contest its validity by way of
an incidental plea.

Case 25/62 Plaumann v Commission [1963] ECR 95; Case 16 /62 ConfederationNationaledes Producteursde Fruitset
Legumes v Council [1962] ECR 471.

[2005] JR

Locus standi and the Public Interest

35. Alternatively, they could raise the invalidity of the regulation before the national
courts and request the national courts to refer the matter to the ECJ for a determination
of the validity of the measure in question via the preliminary references procedure.9
36. The ECJ made it plain that it was not the task of the EU Courts to act in substitution for
the Member States. Member States had a duty to ensure judicial protection through
systems of legal remedies and procedures which enabled natural and legal persons to
challenge before national courts the legality of a national implementing measure.
37. Further, it was not within the ECJ's powers, in proceedings brought before it, to
consider whether protection by Member States was effectively guaranteed and, if it
was not, to hold that proceedings brought by an individual were admissible. That
would require the ECJ to interpret national procedural law, which is beyond its
jurisdiction.
38. The new wording of Art. 111-270(4) does not change the current locus standi position in
respect of legislative acts. It does, however, to a limited extent, make the requirements
of locus standi less stringent in respect of regulatory acts. 10 This should be a comfort to
Jego-type litigants in the future as it enables an individual faced with an adverse EU act
of general application which requires no further implementation to challenge it before
the EU Courts.
Conclusion
39. With the increasing regulation of most aspects of life, it is unsurprising that different
codes regulating different legal regimes develop. The EU legal system and the planning code are just two examples. Such codes, rightly, have their own rules regulating
the degree of judicial involvement. There are, inevitably, differences. The effect for the
litigant is that it generates a degree of uncertainty.
40. The Bulger case (above) illustrates the less-than-clear approach of the court when, in the
context of a particular case, it is faced with the potential availability of both the
"sufficient interest" and "victim" tests. Presumably the stricter "victim" test is relevant
only where the ground of challenge alleges a breach of human rights and there are no
other grounds for judicial review.
41. In the EU context, the scope for natural or legal persons to bring judicial review
proceedings in respect of legislative and regulatory acts under the "direct and individual concern" test has not kept pace with the ever-expanding scope of EU law which
affects individuals.
42. Statutory reviews in planning matters depend on there being a claimant who is a
"person aggrieved". This, as illustrated by Morbaine, more often than not requires such
a claimant to have a proprietary interest in the land affected by the relevant decision.
43. Although there is increasing public interest litigation, the public-spirited individual is
often faced with a set of complex rules and regimes where standing under the particular regime determines whether access to the courts is available. Plainly, a balance must
be struck between the public interest in (1) keeping vexatious litigants and nonjusticiable issues out of the courts and (2) ensuring legal certainty while enabling an
9 See also the domestic case of Ikea Wholesale Ltd v HM Commissioners of Customs and Excise [2004] EWHC 1758

(Ch).

10 See Tridimans and Nebbia, EU Law for the 21st Century:Rethinking the New Legal Order (Hart Publishing, 2004).

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Locus standi and the Public Interest

[2005] JR

individual who happens to be best placed to bring a matter of public importance to the
attention of the courts to do so. A complex and restrictive approach to standing does
little to achieve this. The different tests currently used by the Strasbourg and
Luxembourg Courts when adjudicating on human rights illustrates this problem. A
uniform test for standing would make for a greater degree of legal certainty and more
user-friendly access to the courts.