McAleenon, Re Application for Judicial Review (Northern Ireland) [2024] UKSC 31

Ms McAleenon sought judicial review against regulators for failing to take action regarding harmful emissions from a landfill site affecting her home. The Supreme Court held that private prosecution or nuisance claims against the site operator were not suitable alternative remedies to judicial review of the regulators' public law duties.

Facts

Ms McAleenon resided near Mullaghglass Landfill Site operated by Alpha Resource Management Ltd. From early 2018, she complained of unpleasant odours and physical symptoms including headaches and nausea allegedly caused by noxious fumes from the site. She instructed solicitors and sent pre-action letters to Lisburn and Castlereagh City Council (LCCC), the Northern Ireland Environment Agency (NIEA), and the Department of Agriculture, Environment and Rural Affairs requesting regulatory action.

Dissatisfied with responses, Ms McAleenon commenced judicial review proceedings in May 2021, claiming the regulators failed to investigate properly, failed to take enforcement action under the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 and the Pollution Prevention and Control Regulations 2013, and thereby infringed her rights under Article 8 ECHR.

Issues

Primary Issue

Whether Ms McAleenon’s judicial review claim should be refused on the basis that she had adequate alternative remedies available, namely a private prosecution under section 70 of the 2011 Act or a civil nuisance claim against Alpha.

Secondary Issue

Whether a complaint to the Northern Ireland Public Services Ombudsman constituted a suitable alternative remedy.

Further Issue

Whether the claim was academic given the site closure and sealing of wells.

Judgment

The Supreme Court unanimously allowed Ms McAleenon’s appeal. The Court held that the Court of Appeal erred in its understanding of judicial review proceedings and in its application of the suitable alternative remedy principle.

“Ms McAleenon brought a judicial review claim against the defendant regulators in order to compel them to fulfil the public law duties to which she maintained they were subject, for which claim the judicial review procedure was well adapted and appropriate.”

Lord Sales and Lord Stephens, delivering the joint judgment, emphasised that judicial review focuses on whether public authorities acted lawfully based on information available to them, not on resolving disputed facts requiring cross-examination:

“The question for the court was whether they had done enough to justify that decision in the light of all the circumstances, applying the usual rationality standard and (so far as relevant) the test appropriate for proportionality analysis in relation to article 8.”

The Court rejected the argument that private prosecution or nuisance claims against Alpha were suitable alternatives:

“It therefore cannot be a good answer for such a regulator to say in response to a judicial review claim to require it to carry out its duty in the public interest that the individual member of the public should take action themselves to address the problem.”

Regarding the Ombudsman, the Court held that section 21(1)(b) of the Public Services Ombudsman Act (NI) 2016 establishes that judicial review has priority, so a complaint to the Ombudsman does not constitute a suitable alternative remedy.

The Court also rejected the academic claim argument, finding no evidence that site closure eliminated all risk of harmful gas emissions.

Implications

This judgment clarifies important principles regarding judicial review of regulatory bodies:

• Claimants are entitled to choose which form of claim to bring and against which party; courts cannot refuse judicial review simply because different claims against different parties might achieve similar ultimate objectives
• The suitable alternative remedy principle must be assessed by reference to the specific claim brought, not generalised objectives
• Publicly funded regulators cannot deflect judicial review by pointing to potential private law remedies against third parties
• A complaint to an ombudsman does not constitute a suitable alternative remedy to judicial review
• Judicial review remains appropriate for challenging regulatory inaction without requiring the full trial procedures necessary in private law claims

Verdict: Appeal allowed. The case was remitted to the Court of Appeal to consider whether Ms McAleenon had good grounds of appeal against the High Court’s decision on the merits of her judicial review claim.

Source: McAleenon, Re Application for Judicial Review (Northern Ireland) [2024] UKSC 31