Alpha Resource Management Ltd, Re Application for Judicial Review

Factual and Procedural Background

This opinion concerns a renewed application for leave to apply for judicial review by Company A, the owner and operator of a landfill site, challenging a decision of City Council to serve an abatement notice under statutory nuisance provisions. The abatement notice was issued on 27 April 2021 pursuant to section 63(1)(d) of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 (the Act), in response to complaints from local residents about odours and emissions from the landfill site. Company A operates the site under a permit issued by the Environmental Agency and follows an Odour Management Plan. Company A exercised its statutory right of appeal against the abatement notice to the Magistrates' Court, but those proceedings are stayed pending the judicial review application. The trial judge refused leave for judicial review, and this appeal concerns whether the statutory appeal is an effective alternative remedy.

Legal Issues Presented

1. Whether the statutory right of appeal provided under the Act is an effective alternative remedy to judicial review in the context of challenging an abatement notice for statutory nuisance.
2. Whether the procedural fairness and legality of the City Council's decision-making process in issuing the abatement notice can be adequately addressed through the statutory appeal.
3. Whether exceptional circumstances justify bypassing the statutory appeal process and proceeding by way of judicial review.

Arguments of the Parties

Appellant's Arguments

• There was procedural unfairness due to lack of engagement by the City Council prior to issuing the abatement notice, depriving Company A of the opportunity to respond to complaints or inform the Council's decision.
• The City Council failed to provide lawful reasons for the decision, with deficient council meeting minutes and absence of supporting officer reports or evidence explaining the inclusion of Company A and a neighbouring landfill site in the abatement notice.
• Allegations of apparent bias and predetermination by the City Council members, based on late disclosure indicating inadequate briefing and assumptions made before the meeting.
• Claims of inadequate inquiry and failure to consider material considerations, breaching statutory duty under section 64(b) of the Act to investigate complaints.
• Alleged breaches of EU law, policy, and ultra vires actions by the City Council in including a neighbouring landfill site in the abatement notice and interfering with the Environmental Agency's regulatory role.
• The statutory appeal is limited in scope, unable to address public law illegality or procedural irregularities, making judicial review the correct route.
• Concerns that the statutory appeal hearing would involve after-the-fact provision of materials by the Council, not available at the time of decision-making.

Proposed Respondent's Arguments

• The statutory appeal is a comprehensive and effective remedy capable of addressing all issues raised, including procedural and substantive matters.
• The appeal procedure is intended by Parliament to be the correct and primary route for challenging abatement notices.
• The statutory framework provides for examination, cross-examination, disclosure, and case management to ensure fairness and thoroughness in the appeal process.
• There are no exceptional circumstances such as urgency, delay, or cost that justify bypassing the statutory appeal in favour of judicial review.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that judicial review is a remedy of last resort, generally inappropriate where an adequate alternative remedy exists, such as a statutory appeal. The statutory scheme under the Clean Neighbourhoods and Environment Act 2011 and the associated Appeals Regulations provides a comprehensive appeal process against abatement notices, including procedural and substantive challenges. The court considered the appellant’s numerous allegations of procedural unfairness, lack of lawful reasons, bias, predetermination, and ultra vires action.

The court accepted that the statutory appeal tribunal has a broad remit to consider whether an abatement notice is justified, which encompasses procedural irregularities as part of the overall justification assessment. The court relied on established authorities confirming that procedural and public law issues can be addressed within statutory appeals. The statutory appeal process offers mechanisms such as disclosure, examination, cross-examination, and case management to ensure fairness and thoroughness.

The court distinguished the present case from precedent cases involving urgent public safety concerns where judicial review was justified due to delay or risk to public health. No such urgency or exceptional circumstances were present here. The court also rejected the appellant’s argument that the statutory appeal is limited in scope or inadequate to address public law issues, noting that the statutory framework and explanatory notes indicate an integrated and streamlined appeal process.

The court emphasized that the appellant’s statutory appeal is pending and that a hybrid approach involving simultaneous judicial review and appeal would be inefficient and contrary to the overriding objective of cost-effective case management. The availability of a case stated appeal on points of law from the Magistrates’ Court provides an additional safeguard.

Accordingly, the court concluded that the statutory appeal is an effective alternative remedy and that there were no exceptional reasons to exercise its residual discretion to grant leave for judicial review.

Holding and Implications

DISMISSED

The court dismissed the renewed application for leave to apply for judicial review on the basis that the statutory appeal against the abatement notice is an effective alternative remedy. The appellant is directed to pursue the statutory appeal expeditiously. This decision affirms the principle that judicial review is a remedy of last resort and upholds the comprehensive scope and efficacy of the statutory appeal process under the Clean Neighbourhoods and Environment Act 2011. No new precedent was established beyond confirming the adequacy of the statutory appeal in this factual context. The statutory appeal process remains the primary and appropriate route for challenging abatement notices of this nature.