Eight Weeks Out of Time: The Waste Licence Judicial Review
Ms. Okafor applied to a local authority for a licence for a waste-transfer station. The application was refused on 12 January. The decision letter, dated 20 January, stated only that the application 'did not meet the required standards'. The governing statute provides that an application for judicial review of a decision under it must be made 'within eight weeks' of the decision, and that the court may extend that period 'for good and sufficient reason'. On 15 May, after repeated written requests, the authority furnished a 40-page report. It shows that the decision-makers relied on a 2019 complaint about odours from Ms. Okafor's existing depot which was never put to her, and that one of the three decision-makers, Councillor Brady, is a director of a haulage company that competes directly with her business. Councillor Brady did not declare an interest at the meeting; the other two say they were 'broadly aware' of his business interests. Ms. Okafor also wants to argue that the 2019 complaint was factually wrong. She has been advised that her best point is the odour complaint and that the time problem is 'technical'.
1. Deal with the time problem. What must be done, and what is the strongest available argument for an extension?
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Work out the deadline precisely. Eight weeks runs either from the decision on 12 January or from notification on 20 January. The statute says 'of the decision', so the safer assumption is 12 January, giving a deadline in early March. An application in mid-May is around two months late. Do not let a solicitor's assumption fix the date; calculate it both ways and work to the earlier.
Do not issue the merits alone. The extension must be sought within the proceedings, on notice, and supported by an affidavit setting out the chronology and the reasons for delay. An application that ignores the time point will be met with a preliminary objection that consumes the hearing.
The strongest argument. The one-line decision letter was inadequate to allow any informed challenge. She asked repeatedly in writing and received nothing until 15 May. Until the report arrived, she could not know that an undisclosed complaint had been relied on or that a decision-maker had an undeclared interest. Once she had it, she moved promptly. Delay caused by an authority's failure to give reasons, where the applicant has pressed for them, is materially different from the applicant simply sitting on her hands.
Anticipate the answer. She could have issued a protective application within the eight weeks seeking reasons and reserving her grounds, and her advisers' failure to do so will be attributed to her. Advice that the point is 'technical' should be treated as a warning, not a reassurance: the 'good and sufficient reason' standard is applied strictly, and the court also weighs prejudice to the authority and third parties, and whether an alternative statutory remedy existed. Leave nothing to chance on the affidavit evidence.
2. Analyse the bias ground, including the position of the two members who were 'broadly aware'.
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No allegation of actual bias is needed. The test is objective: whether a reasonable and fair-minded observer, knowing the relevant facts, would have a reasonable apprehension of bias. The question is not whether the decision was in fact influenced, but whether it could appear to be.
Councillor Brady. A directorship in a haulage company that competes directly with the applicant is a clear financial interest in a decision that could reduce a competitor's capacity. Failure to declare it compounds the problem. This is close to the paradigm case: the observer would know that the decision-maker had something to gain from a refusal.
The other two. 'Broadly aware' cuts against the authority rather than for it. It means the panel knew of a colleague's interest and proceeded anyway, which suggests no one applied their mind to the conflict at all. Even if neither member was personally compromised, a decision arrived at by a body that did not address a disclosed-able interest is vulnerable as a whole. Check the governing statute and standing orders for express provisions on declarations and disqualification; a breach of an express provision strengthens the case considerably.
Causation and discretion. The authority will argue that the decision was unanimous or inevitable, so the interest made no difference. That argument goes to discretion rather than to the existence of the ground, and it should be met with the point that the odour complaint was itself undisclosed, so the whole process is tainted rather than one vote.
Realistic relief. Certiorari and remittal to a differently constituted body is the likely outcome. The court will not grant the licence. Ms. Okafor should be advised of that before she litigates.
3. The applicant also wants to argue that the 2019 complaint was factually wrong. Advise on how that ground should be framed, and on the relief realistically available.
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The wrong way to put it. A bare assertion that the authority got a fact wrong, within its jurisdiction, is not a reviewable error. Judicial review is not an appeal on the merits, and the court will not re-weigh the complaint against the applicant's evidence.
The right way: three connected framings. First, fairness. The 2019 complaint was material to the refusal and was never put to her, so she had no opportunity to answer it. That is a classic audi alteram partem point and it is stronger than the correctness argument. Second, reasons. A decision letter saying only that the application 'did not meet the required standards' does not disclose the basis of the decision and may itself breach the duty to give reasons, particularly where the statute contemplates a reasoned decision. Third, materiality. Show that the complaint went to the substance rather than being a peripheral note; the 40-page report should be mined for how prominently it features.
Keep the factual dispute subordinate. Use the factual error to explain why the failure to put the complaint mattered, not as a freestanding ground. The court may well decline to decide whether the 2019 complaint was accurate.
Relief. Judicial review does not substitute the court's view for the authority's. The realistic outcome is an order quashing the refusal and remitting the matter for a fresh determination by a differently constituted body, possibly with directions. Advise the client accordingly, warn her of the costs risk, and consider whether the resources would be better spent on a fresh, properly documented application with a pre-application meeting.