Noeleen McAleenon asked the courts to review whether public regulators had properly dealt with fumes from a nearby landfill site. The Court of Appeal refused judicial review because she could instead prosecute the operator or sue in nuisance. The Supreme Court held that those were different proceedings against a different party and were not a suitable alternative to her challenge to the regulators.
The landfill and the complaint
Noeleen McAleenon lived near the Mullaghglass landfill site in Lisburn. From 2018 she and other residents complained of fumes. She said they affected her health and her use of her home. Alpha Resource Management operated the site.
Two regulatory regimes were relevant. Lisburn and Castlereagh City Council had powers and duties under the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011, including a duty to investigate a complaint of statutory nuisance. Section 70 also allowed a person aggrieved by such a nuisance to complain to the magistrates’ court. Separately, the Northern Ireland Environment Agency regulated the site through a permit under the Pollution Prevention and Control (Industrial Emissions) Regulations (Northern Ireland) 2013. Ms McAleenon contended that the Department of Agriculture, Environment and Rural Affairs also had responsibilities under those Regulations.
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The claim
Ms McAleenon challenged the public bodies responsible for investigating the complaints and enforcing the permit. She alleged that their response was unlawful and that they had failed to protect her right to respect for her home and private life under article 8 of the European Convention on Human Rights. She did not sue Alpha.
The regulators defended the claim on the merits. The Agency and the Department also said that judicial review should be refused because she could bring a private prosecution under section 70 or a civil claim in nuisance against Alpha. On the appeal, the Council additionally argued that a complaint to the Northern Ireland Public Services Ombudsman was a suitable alternative. The regulators also said that the proceedings had become academic because the site had closed and its ventilation wells had been capped.
The High Court and the Court of Appeal
Humphreys J rejected the argument that proceedings against Alpha supplied an adequate alternative remedy. Nevertheless, he dismissed the judicial review on its merits. He held that the regulators had met the applicable public-law standards and rejected the article 8 claim.
Ms McAleenon appealed. The Court of Appeal heard the regulators’ cross-appeal on alternative remedies first. It held that a private prosecution or civil nuisance claim against Alpha could secure abatement if proved. It also considered that disputed expert evidence could not satisfactorily be resolved on paper. It therefore dismissed the appeal without hearing argument on the merits.
The limits of judicial review
Lord Sales and Lord Stephens explained the difference between a regulator’s task and the reviewing court’s. The regulator evaluates the evidence and decides what action to take. The court asks whether that decision was lawful, including whether the regulator acted rationally on the information available to it. It does not ordinarily decide for itself what substances escaped or what enforcement action it would have taken.
The Court of Appeal had therefore been wrong to think that it had to decide definitively whether unlawful or harmful emissions came from the site, or that the claim required a trial with oral expert evidence. Critical examination of the information before the regulators did not depend on cross-examination or on treating the dispute as one the court itself had to resolve on the balance of probabilities.
Choosing the claim and the defendant
Judicial review is discretionary. Permission or relief may be refused where a suitable alternative has not been used, and a statutory appeal will ordinarily be that alternative. Alpha accordingly could not judicially review its abatement notice, because section 65(8) provided an appeal on the merits. There was no equivalent statutory appeal against an alleged failure by these regulators to perform their public-law duties.
Ms McAleenon wanted the fumes to stop, but that broad aim did not define her legal claim. She wanted the regulators to perform their public duties and, where appropriate, use their enforcement powers. Proceedings against Alpha would involve a different defendant, different questions and different relief. Neither a prosecution nor a private nuisance action would determine whether the regulators had acted lawfully.
The Supreme Court endorsed Humphreys J’s concern that regulators should not be able to avoid public-law accountability in this way. Judicial review was comparatively speedy and inexpensive, and the Court of Appeal was wrong to describe this claim as the more complex route. A complaint to the Ombudsman was not an alternative either. The Ombudsman supplements rather than replaces judicial review. Section 21 of the Public Services Ombudsman Act (Northern Ireland) 2016 generally prevents investigation where the complainant has a court remedy, unless it is unreasonable to expect that remedy to be used.
Closure and capping of the site did not make the appeal academic. The evidence did not establish that every risk of harmful emissions had ended.
Verdict: The Supreme Court unanimously allowed the appeal and remitted the case to the Court of Appeal to consider the challenge to Humphreys J’s decision on the merits. It did not find that the regulators had breached their duties or infringed article 8.
