McAleenon, Re Application for Judicial Review (Northern Ireland) [2024] UKSC 31 (16 October 2024)

"If there is a dispute of fact not capable of being resolved on the documentary evidence, and no cross-examination is allowed, the courts will proceed on the basis of the written evidence presented by the person who does not have the onus of proof. As the onus is on the claimant to make out his case for judicial review, this means that in cases of conflict on a critical matter which are not resolved by oral evidence and cross-examination, the courts will proceed on the basis of the defendant's written evidence."

It said (para 42) that in Ms McAleenon's judicial review claim, following this approach and given the lack of consensus between the experts, "the only course a court could take would be to accept the expert evidence filed on behalf of the [defendants] who did not have the onus of proof", which would mean that "the whole basis of the appellant's case is fatally undermined"; but stated "[w]e consider that this would be an unsatisfactory way of resolving the contentious scientific debate put before this court".

These observations were important background for the Court of Appeal's conclusion on the issue of suitable alternative remedies. The Court of Appeal considered that what was called for was a resolution of the evidential disputes between the expert witnesses. This led it to say (para 57) that an inquiry by the Ombudsman with access to all the evidence "would be better suited to resolving difficult issues of expert evidence than a judicial review application". At para 59 it pointed out that cross-examination of expert witnesses would have occupied considerable court time and emphasised that "it is not possible in a judicial review application, nor is it desirable to try and resolve contentious disputes of fact". Moreover, there had in fact been no application for cross-examination of experts.

At para 60 the Court of Appeal opined that Ms McAleenon "wanted primarily to prevent noxious gases escaping from the Site" because of the harm she alleged they did to her and her family; in the light of this it found that "[h]er complaint about the regulator(s) was very much a secondary one ... which has been used as the excuse to commence more complex judicial review proceedings against the regulators rather than proceeding directly against the alleged tortfeasor(s) [ie Alpha] who it is alleged were responsible for the nuisance". Having identified Ms McAleenon's objective in this way, the Court of Appeal said (para 61):

"We are satisfied that either civil proceedings in the County Court (or High Court) or statutory nuisance proceedings before the Magistrates' Court offered a much better means for the appellant to achieve her desired goal, namely the cessation of the alleged toxic emissions from the Site and compensation for such injuries and inconvenience as she and her family may have sustained. Either process will be fairer because the court will be able to weigh up the evidence, especially the expert evidence, and come to a considered conclusion. The appellant, if she succeeds, will be granted relief that will abate the alleged nuisance, and in civil proceedings, will ensure she receives such compensation as the court assesses are due to her and her family. This will be calculated on the basis of expert medical witness evidence and of its ability to link the alleged ill effects apparently suffered by those in the vicinity to the emission of noxious fumes from the Site."

The Court of Appeal therefore concluded (para 63) that Ms McAleenon had an alternative remedy either under section 70 or by bringing a common law claim for the tort of nuisance and "there is no further utility in judicial review proceedings" (it did not refer in this part of its judgment to a complaint to the Ombudsman as a further alternative remedy). At paras 69-70 it repeated and applied guidance given by the Lady Chief Justice in Alpha Resource Management, paras 11-20, regarding the principle that permission to seek judicial review should be refused if there is a suitable alternative remedy. At para 73 the Court of Appeal concluded that the alternative remedies available to Ms McAleenon under section 70 and in a common law claim for nuisance would provide her "with the relief she required if her claims are correct, namely cessation of the alleged nuisance on the Site"; each of them "offered her the opportunity of obtaining relief against the alleged wrongdoer" and "offered the prospect of a court being able to determine various issues which were the subject of contested expert evidence"; and each of them "was direct, almost certain to be less complex, almost certain to be cheaper and certainly more effective."

At para 74 the Court of Appeal stated that Ms McAleenon's claim was unsuited to the judicial review procedure, primarily because of the disagreement between the expert witnesses and because "it is simply impossible for any court to reach a final conclusion on that contentious, but untested expert evidence" in judicial review proceedings; in the absence of cross-examination of the experts (which no party had applied for) a court dealing with such a claim "would have no option" but to follow the approach set out at para 25 above, which would mean that it could not be satisfied that the Site created a nuisance or a real risk to the health of those living in the vicinity; however, to dispose of a case like Ms McAleenon's in this way would not be "either fair or just".

Ms McAleenon now appeals to this court. Mr Hugh Southey KC submits on her behalf that the Court of Appeal was wrong to dismiss her claim on the basis that she had suitable alternative remedies available to her. He supports the Court of Appeal's holding, in line with that of the judge, that Ms McAleenon's claim cannot be regarded as academic. The conclusion, Mr Southey says, ought to be that the case should be remitted to the Court of Appeal to consider whether Ms McAleenon's claim for judicial review was properly dismissed by the judge on the merits.

Mr McGleenan KC, for the NIEA and the Department, submits that the Court of Appeal was right to hold that Ms McAleenon's judicial review claim should fail on the grounds that she had suitable alternative remedies available to her in the form of a private prosecution under section 70 and a common law claim for nuisance and also on the ground that her claim was academic. Mr Peter Coll KC, for the LCCC, supports these arguments and also submits that Ms McAleenon's claim should fail on the grounds that she had a suitable alternative remedy available in the form of a complaint to the Ombudsman.

The Legal Framework

(a) The 2011 Act

Section 63 of the 2011 Act defines "statutory nuisances" as including "any ... smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance." Section 64 imposes a duty on a district council (a) to cause its district to be inspected from time to time to detect any statutory nuisances which ought to be dealt with and (b) where a complaint of a statutory nuisance is made by a person living in its district, "to take such steps as are reasonably practicable to investigate the complaint".

Section 65(1) provides that where a district council is satisfied that a statutory nuisance exists it shall serve an abatement notice imposing a requirement to abate the nuisance or to take necessary steps. A person on whom such a notice is served who without reasonable excuse fails to comply with it is guilty of an offence (subsection (9)); but in proceedings for such an offence "it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance" (subsection (12)). Section 65(8) gives the right to any person served with an abatement notice to appeal to the magistrates' court.

Section 70 provides that a person aggrieved by the existence of a statutory nuisance may make a complaint to a court of summary jurisdiction (ie a magistrates' court) which may make an order requiring abatement of the nuisance and prohibiting its recurrence and may impose a fine. The court may order the defendant to compensate the complainant for any expenses properly incurred in the proceedings, but does not have a power to award damages more generally for loss suffered as a result of the nuisance.

(b) Common law nuisance

An action for the common law tort of nuisance may be brought by way of ordinary civil proceedings in the High Court or the County Court. The court has power to grant injunctive relief, requiring abatement of the nuisance, and to award damages for loss suffered.

The HRA gives effect in domestic law to the Convention rights derived from the European Convention on Human Rights, including those under article 8 (right to respect for private and family life and the home). Section 6(1) of the HRA imposes a duty on public authorities such as the LCCC, the NIEA and the Department to act in a way which is compatible with the Convention rights of individuals. By application of article 8, in certain circumstances state authorities may come under a positive duty to take steps to abate an environmental hazard which has a serious effect on the life of an individual: see Fadeyeva and the discussion in Richards CA. The state authorities have to strike a fair balance between the competing interests of the different private actors involved, and in doing so enjoy a margin of appreciation (Fadeyeva, para 96). In Fadeyeva, para 105, the European Court of Human Rights said:

"It remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities in striking a fair balance between the competing interests of different private actors in this sphere. However, the complexity of the issues involved with regard to environmental protection renders the Court's role primarily a subsidiary one. The Court must first examine whether the decision-making process was fair and such as to afford due respect to the interests safeguarded to the individual by Art.8, and only in exceptional circumstances may it go beyond this line and revise the material conclusions of the domestic authorities."

At para 128 the Court explained that part of its role was "to assess whether the Government approached the problem with due diligence and gave consideration to all the competing interests."

Where in breach of an obligation arising under article 8 a public authority fails to take action to address an environmental hazard, an individual who is affected may seek relief including an order requiring it to take appropriate steps to eliminate the risk posed and compensation by way of just satisfaction for infringement of their rights: section 8 of the HRA.

(d) Licensing of landfill sites under the 2013 Regulations

The 2013 Regulations prohibit the operation of a landfill site without a permit. Regulation 11 provides that when determining the conditions of a permit, the enforcing authority (here, the NIEA) shall take account of the general principles that the site must be operated in such a way that all appropriate preventative measures are taken against pollution, in particular through the application of best available techniques, and that no significant pollution is caused. Regulation 17 provides for review by an enforcing authority of the conditions of a permit.

(e) The Public Services Ombudsman Act (Northern Ireland) 2016

Section 5 of the Public Services Ombudsman Act (NI) 2016 ("the 2016 Act") gives the Ombudsman power to investigate complaints of a person who claims to have sustained an injustice in relation to alleged maladministration by certain categories of public authorities, which include the LCCC, the NIEA and the Department. A report by the Ombudsman finding injustice entitles the complainant to apply to the County Court for damages or an injunction: section 52.

Analysis

(a) Judicial review of regulators

Judicial review is directed to examination of whether a public authority has acted lawfully or not. This means that the general position is that the focus of a judicial review claim is on whether the public authority had proper grounds for acting as it did on the basis of the information available to it. This may include examination of whether the authority should have taken further steps to obtain more information to enable it to know how to proceed: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B (Lord Diplock). Accordingly, it is for the public authority to determine on the information available to it the facts which are relevant to the existence and exercise of its powers, subject to review by a court according to the usual rationality standard. The court has a supervisory role only. (We leave aside cases where public law powers are conditional upon the existence of a fact which is to be determined objectively by the court itself, ie what is called a precedent fact).

Judicial review is supposed to be a speedy and effective procedure, in respect of which disputes of fact which have a bearing on the legal question to be determined by the court - that is, whether the public authority has acted lawfully - do not generally arise. A public authority is subject to a duty of candour to explain to the court all the facts which it took into account and the information available to it when it decided how to act.

Given the nature of the legal question to be determined by the court and the duty of candour, the usual position is that a judicial review claim can and should be determined without the need to resort to procedures, such as cross-examination of witnesses, which are directed to assisting a court to resolve disputed questions of fact which are relevant in the context of other civil actions, where it is the court itself which has to determine those facts. In judicial review proceedings the court is typically not concerned to resolve disputes of fact, but rather to decide the legal consequences in the light of undisputed facts about what information the public authority had and the reasons it had for acting. (This is not to say that such procedures are not available in judicial review: cross-examination is available and will be allowed "whenever the justice of the particular case so requires": O'Reilly v Mackman [1983] 2 AC 237, 283 per Lord Diplock; but usually, given the issues which arise in a judicial review claim, the justice of the case does not require it).

There is no suggestion in this case that the LCCC, the NIEA and the Department have failed to comply with their duty of candour. They have given full accounts of what they did and of the information available to them. There is no doubt about the information available to the LCCC, the NIEA and the Department. It is on the basis of the information available to them that the lawfulness of their conduct is to be assessed.

With respect, the Court of Appeal fell into error in its assessment of the position in relation to the judicial review claim:

(i) The Court of Appeal considered that it had to make definitive findings of fact about whether the offensive odours emanated from the Site, the concentrations of H₂S in the air and so forth, hence its reference to the comment in Lewis, op cit (para 25 above), about the onus of proof. But this is not correct. As is common when regulators have to decide whether to take action, the defendants were confronted with a situation in which there was a significant degree of uncertainty about these matters, which is precisely why they conducted investigations. The investigations did not eliminate all uncertainty, but reduced it to a level where the defendants considered that they could take a decision about how to proceed and determined it was not appropriate for them to take regulatory action. 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.

(ii) The Court of Appeal assumed that the reviewing court was faced with a choice between simply accepting the defendants' evidence, with the result that Ms McAleenon's claim would have to be dismissed, or allowing it to be challenged by way of cross-examination, which had not been sought. In other words, the judicial review claim, if pursued effectively, would have to involve a civil trial with oral evidence from experts on each side who would be subjected to cross-examination. This is not correct either. Arising from point (i) above, the correct approach for a reviewing court would have been to subject the information available to the defendants to critical analysis to see whether they could lawfully make the decisions they did on the basis of it. That exercise did not require oral evidence and cross-examination. To repeat the point, there was no factual dispute regarding the information available to the defendants which called for resolution. Nor was the reviewing court simply obliged to dismiss the judicial review claim in the absence of challenge to the defendants' expert evidence by cross-examination. Its role was to evaluate the quality of the information available to the defendants (including such information as Ms McAleenon put before them) in order to assess the lawfulness of their conduct. The model which the Court of Appeal thought was relevant, of a civil trial in which the court itself would have to determine the facts on the basis of the balance of probabilities, the onus of proof on particular issues, and cross-examination of witnesses, was simply inappropriate in this context.