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McAleenon, Re Application for Judicial Review (Northern Ireland)
Smart Summary
Factual and Procedural Background
The Appellant lives near a landfill site operated by Company A. From 2018 she and other residents experienced noxious odours and alleged related health issues. Three public regulators (collectively, the Defendants) possess statutory powers to investigate and abate such nuisances. Dissatisfied with their responses, the Appellant sent pre-action correspondence and, on 21 May 2021, initiated judicial review proceedings seeking to compel the Defendants to exercise their regulatory powers and to obtain compensation under Article 8 of the European Convention on Human Rights.
At first instance, Judge Humphreys granted leave, rejected the Defendants’ “alternative remedy” defence, but ultimately dismissed the claim on its merits. The Defendants appealed on the alternative-remedy point; the Appellant cross-appealed on the merits. The Court of Appeal allowed the Defendants’ cross-appeal, ruling that private prosecution under section 70 of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011, a common-law nuisance action, or a complaint to the Ombudsman were adequate alternatives, and therefore dismissed the judicial review.
The Appellant obtained leave to appeal to the Supreme Court, challenging only the alternative-remedy ruling. The present opinion resolves that appeal.
Legal Issues Presented
- Whether the availability of (a) a private prosecution under section 70, (b) a civil nuisance action against Company A, or (c) a complaint to the Ombudsman constitutes a “suitable alternative remedy” that justifies refusing judicial review of regulators’ decisions.
- Whether the claim had become academic because the landfill site had closed and its ventilation wells were capped.
Arguments of the Parties
Appellant's Arguments
- The Court of Appeal misapplied the alternative-remedy doctrine; none of the suggested proceedings addresses the regulators’ public-law duties.
- Judicial review is the proper mechanism to hold regulators to account; compelling an individual to sue Company A transfers the regulators’ statutory responsibilities to a private citizen.
- The claim is not academic because potential gas emissions may persist despite the site’s closure.
Defendants' Arguments
- The Court of Appeal correctly found that section 70 proceedings, a nuisance claim, and an Ombudsman complaint could provide the desired relief and are more appropriate forums for resolving factual disputes.
- The judicial review is academic in light of the site’s closure and capped wells.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| [2022] NIQB 39 |
First-instance judgment rejecting alternative-remedy defence but dismissing claim on merits. |
Procedural history; overturned by Court of Appeal. |
| [2023] NICA 15 |
Court of Appeal decision accepting alternative remedies. |
Decision under review in the present appeal. |
| Alpha Resource Management ([2022] NICA 27) |
Permission for judicial review ordinarily refused where Parliament provides a merits appeal. |
Cited by Court of Appeal; Supreme Court distinguished its relevance. |
| R (Richards) v Environment Agency [2021] EWHC 2501 (Admin) |
First-instance approach to Article 8 duties of regulators. |
Referenced to explain original breadth of Appellant’s pleading. |
| Richards CA [2022] EWCA Civ 26 |
Clarified limited scope of regulators’ Article 8 obligations and wide margin of appreciation. |
Guided amendment of Appellant’s claim and informed Supreme Court’s analysis of proportionality. |
| Fadeyeva v Russia 45 EHRR 10 |
States’ positive duties under Article 8 and “manifest error of appreciation” test. |
Provided framework for assessing regulators’ decision-making. |
| Secretary of State v Tameside [1977] AC 1014 |
Public authority must acquaint itself with relevant facts; court reviews rationality. |
Used to explain nature of fact-finding in judicial review. |
| O'Reilly v Mackman [1983] 2 AC 237 |
Cross-examination in judicial review permitted only when justice requires. |
Supports view that oral evidence is rarely necessary in such proceedings. |
| R (Daly) v Home Department [2001] UKHL 26 |
Court’s role in human-rights review remains supervisory. |
Emphasised limited fact-finding function in Article 8 context. |
| R (N) v M [2002] EWCA Civ 1789 |
Even where facts matter, oral evidence not always required. |
Cited to refute Court of Appeal’s assumption about necessity of a full trial. |
| Smith & Grady v UK (1999) 29 EHRR 493 |
National authorities’ reasons must be “relevant and sufficient”; court’s role is evaluative. |
Illustrated approach to reviewing evidence without live testimony. |
| R (Glencore) v HMRC [2017] EWCA Civ 1716 |
Judicial review is a remedy of last resort when statutory appeals exist. |
Distinguished; no statutory appeal exists against regulators’ inaction here. |
| R (Watch Tower) v Charity Commission [2016] EWCA Civ 154 |
Alternative-remedy principle in absence of exceptional circumstances. |
Cited as general authority; Supreme Court applied its rationale. |
| Kay v Lambeth LBC [2006] UKHL 10 |
Preference for alternative remedies before judicial review. |
Referenced in articulating the doctrine’s boundaries. |
| R (Mooyer) v PIA Ombudsman Bureau [2001] EWHC 247 (Admin) |
Obiter suggestion that suing the private wrongdoer could be an alternative to reviewing an ombudsman. |
Supreme Court found it “slender” and not persuasive. |
| R v Monmouth DC, Ex p Jones (1985) 53 P & CR 108 |
Right to judicial review not displaced by availability of an ombudsman complaint. |
Relied upon to reject Defendants’ Ombudsman argument. |
Court's Reasoning and Analysis
The Supreme Court held that the Court of Appeal fundamentally misunderstood the nature of judicial review. A reviewing court does not determine environmental facts de novo; it assesses whether regulators acted lawfully on the information before them. Because the Defendants complied with the duty of candour, there were no factual disputes requiring oral evidence. Consequently, cross-examination and an evidential trial—central to the Court of Appeal’s reasoning—were unnecessary.
The alternative-remedy doctrine must be applied to the specific claim advanced. The Appellant sought to compel regulators to discharge their statutory and Convention duties; neither a private prosecution against Company A nor a civil nuisance suit could address or remedy the regulators’ alleged public-law failures. The suggested alternatives also differed in scope (e.g., section 70 cannot award compensation for past loss) and imposed greater complexity and cost on the Appellant.
A complaint to the Ombudsman is not a suitable alternative because the governing statute itself subordinates Ombudsman jurisdiction to judicial review where court proceedings are reasonably available.
The argument that the proceedings were academic failed: evidence did not establish that sealing the site eliminated all future risk.
Holding and Implications
APPEAL ALLOWED. The Court of Appeal’s dismissal on the alternative-remedy ground is set aside, and the matter is remitted to that court for determination of the substantive merits.
Implications: The decision clarifies that the availability of private nuisance actions or statutory prosecutions does not preclude judicial review of regulators alleged to have breached public-law duties. It reaffirms the supervisory—rather than fact-finding—nature of judicial review and limits the circumstances in which alternative remedies will bar such proceedings. No new cause of action is created, but regulators may face judicial scrutiny notwithstanding other potential avenues open to affected individuals.
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