Stevens, R (on the application of) Sylvia Stevens v Lewes District Council

Judicial review of a Local Government Ombudsman decision is concerned with the legality of the decision on the material before the Ombudsman, not with a fresh determination of the underlying dispute. An applicant challenging rejection of a maladministration complaint must show that, on that material, the Ombudsman had no alternative but to uphold the complaint. Fresh evidence of pollution or other current conditions cannot establish that an earlier decision was reviewable. Where the substantive grievance concerns continuing interference from neighbouring premises, nuisance proceedings may provide the more appropriate remedy if the evidence supports them.

Sylvia Stevens sought permission to challenge a 1998 decision of the Local Government Ombudsman rejecting her complaint that Lewes District Council had failed to control pollution from neighbouring commercial premises. Keene J refused permission on the papers, relying on delay and the absence of an arguable merits challenge. Latham J refused permission after an oral hearing and considered that nuisance proceedings against the alleged polluters were the more appropriate route.

A renewed application was initially refused by the Court of Appeal on 14 January 2000 in Mrs Stevens’s absence. She returned with further submissions and a video showing alleged pollution. The central issue was whether the material placed before the Ombudsman established a legally arguable challenge to his decision.

1. Application refused. Lord Justice Simon Brown refused the renewed application for permission to apply for judicial review.
2. The court’s task was confined to examining whether, on the material placed before the Ombudsman in 1998, the Ombudsman had no alternative but to uphold the complaint of maladministration. The court was not required to determine afresh whether pollution or nuisance in fact existed.
3. Evidence gathered after the Ombudsman’s decision, including a video showing alleged pollution, could not by itself establish that the earlier decision was unlawful or susceptible to judicial review. The applicant’s current complaints therefore did not provide an arguable basis for intervention.
4. The court agreed with Latham J that, if the alleged fumes and noise continued and supporting evidence could be obtained, nuisance proceedings against the neighbouring businesses might be the appropriate remedy. That observation was guidance on the practical route available to the applicant and was not necessary to the refusal of permission.
5. The earlier refusals by Keene J, Latham J and the Court of Appeal were upheld in substance. The renewed application accordingly failed, and the order was: Application refused.

1. Court of Appeal (Civil Division): The renewed application was initially refused on 14 January 2000 by Morritt LJ, May J and Wall J in Mrs Stevens’s absence. On 4 April 2001, the Court of Appeal again refused the renewed application: [2001] EWCA Civ 542.
2. Queen’s Bench Division: Latham J refused permission after an oral hearing on 6 August 1999.
3. Queen’s Bench Division: Keene J refused permission on the documents on 23 June 1999, partly because of delay and partly because the Ombudsman’s decision was open to him on the facts.