In the matter of an application by Noeleen McAleenon for Judicial Review (Northern Ireland)

The Supreme Court allowed the appeal and held that the Court of Appeal erred in dismissing the appellant's judicial review claim on the ground that she had suitable alternative remedies. The Court explained that judicial review is the appropriate public law procedure to challenge regulators' exercise (or omission) of regulatory duties and that private proceedings against the alleged tortfeasor (a statutory nuisance prosecution under section 70 of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 or a common law nuisance claim) do not constitute a suitable alternative remedy to a claim seeking to compel public authorities to perform their regulatory functions.

The Court emphasised the correct role of a reviewing court when regulators have investigated disputed environmental facts: the court reviews whether the authority had adequate information and lawful reasons for its decisions rather than resolving primary factual disputes as in a civil trial. It held that the Court of Appeal was wrong to treat the absence of cross-examination of experts as dispositive, or to require a civil-style fact-finding exercise in place of public law review. The Court also held that a complaint to the Ombudsman does not ordinarily displace the right to seek judicial review.

Background and procedural history.

• The appellant, Mrs McAleenon, lived near Mullaghglass Landfill Site operated by Alpha Resource Management Ltd and complained of odours and hydrogen sulphide emissions from early 2018. She alleged adverse effects on health and quality of life.
• She wrote to Lisburn and Castlereagh City Council (LCCC), the Northern Ireland Environment Agency (NIEA) and the Department, then issued judicial review proceedings on 21 May 2021 seeking orders and declarations to compel proper regulatory action and, in respect of alleged breaches of article 8 ECHR as implemented by the Human Rights Act 1998, compensation.
• Humphreys J (High Court) proceeded to a substantive hearing and dismissed the defendants' alternative remedies defence (that she should pursue a private prosecution under section 70 or a nuisance claim) but dismissed the claim on the merits after considering the evidence ([2022] NIQB 39). The Court of Appeal allowed the regulators' cross-appeal on alternative remedies and dismissed the judicial review claim ([2023] NICA 15). The appellant appealed to the Supreme Court.

The nature of the claim and relief sought.

• The claim was a public law challenge to the conduct of regulators (LCCC, NIEA and the Department) alleging failures under the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 (notably section 64) and under duties arising from section 6 of the Human Rights Act 1998 read with article 8 ECHR. Remedies sought included orders and declarations compelling reconsideration and enforcement steps and damages under the HRA.

Issues considered by the Supreme Court.

1. Whether the Court of Appeal was correct to treat a private prosecution under section 70 or a civil nuisance claim against the site operator as a suitable alternative remedy to defeat a judicial review claim against regulators.
2. Whether the Court of Appeal was correct to treat the judicial review claim as effectively academic because the Site had been closed and wells capped.
3. The proper role and approach of a reviewing court when regulators have investigated disputed technical and expert matters.
4. Whether a complaint to the Ombudsman displaces judicial review.

Reasoning and disposition.

• The Court held that the Court of Appeal erred in conflating the appellant's overall objective (cessation of emissions) with the immediate legal target of her chosen claim (compelling public authorities to perform their regulatory duties). Civil proceedings or a private prosecution directed at the site operator do not address the alleged public law failures of regulators and therefore are not suitable alternatives to the judicial review the appellant chose to bring.
• The Supreme Court explained that judicial review by its nature examines whether a public authority had adequate information and lawful basis for its decisions; it is normally unnecessary to conduct the civil-style resolution of primary factual disputes by cross-examination in that context. The Court of Appeal therefore erred in treating the lack of cross-examination of experts as fatal to the judicial review claim.
• The Court held that a private prosecution under section 70 could not provide the full scope of relief sought (for example, HRA compensation against public authorities), and that a civil nuisance claim may leave the claimant without effective recourse if the private defendant cannot satisfy a judgment. The availability of an Ombudsman complaint does not ordinarily oust a claimant's right to seek judicial review.
• The Supreme Court allowed the appeal and remitted the case to the Court of Appeal to consider the appellant's grounds of appeal against Humphreys J's decision on the merits.

Appeal allowed. The Court held that the Court of Appeal erred in finding that the appellant had suitable alternative remedies (private prosecution under section 70 or a common law nuisance claim) which justified refusal of judicial review against the regulators. The Supreme Court explained that judicial review is the appropriate procedure to challenge alleged failures by public authorities to perform regulatory duties, that a reviewing court reviews the lawfulness of authorities' decisions on the information available rather than resolving primary factual disputes as in a civil trial, and that a complaint to the Ombudsman does not ordinarily displace a judicial review remedy. The matter is remitted to the Court of Appeal to consider the merits of the High Court decision.

High Court (Humphreys J) – substantive hearing; alternative remedy defence dismissed but claim dismissed on merits ([2022] NIQB 39). Court of Appeal allowed the regulators' cross-appeal on suitable alternative remedies and dismissed the judicial review appeal ([2023] NICA 15). Supreme Court allowed the appeal ([2024] UKSC 31) and remitted the case to the Court of Appeal for consideration of the merits.