McAleenon, Re Application for Judicial Review (Northern Ireland)

Appellant

Hugh Southey KC

Sarah Minford BL

(Instructed by Phoenix Law (Belfast))

1^st Respondent

Peter Coll KC

Gordon Anthony BL

(Instructed by Arthur Cox (Belfast))

2^nd and 3^rd Respondents

Tony McGleenan CBE KC

Maria Mulholland BL

(Instructed by Departmental Solicitor's Office (Belfast))

Lord SALES AND LORD STEPHENS (with whom Lord Lloyd-Jones, Lord Briggs and Lady Simler agree):

1. This appeal is about the exercise of discretion by a court which is invited by a claimant to conduct a judicial review of decision-making by a regulator in relation to a regulated activity, where the regulator alleges that the claimant has an adequate alternative remedy such that judicial review should be refused. In this case, the regulated activity is the maintenance of a waste disposal site.
2. The appellant (Ms McAleenon) seeks to bring judicial review proceedings against public bodies which have regulatory functions in relation to that activity, claiming that they have not taken appropriate action to prevent harmful chemical gases and noxious smells escaping from the site. But the public bodies maintain that judicial review should be refused because Ms McAleenon has adequate alternative remedies, in that she could herself launch a private prosecution against the owner of the site or could bring a nuisance claim against them in private law. That defence was rejected by the High Court ([2022] NIQB 39), but on the regulators' appeal was accepted by the Court of Appeal ([2023] NICA 15). The Court of Appeal also referred to the fact that Ms McAleenon was able to complain to the Northern Ireland Public Services Ombudsman ("the Ombudsman"). Ms McAleenon appeals to this court.

Factual background

3. At the material time Ms McAleenon resided at 17a Barleywood Mill, Lisburn. This property is within the area of Lisburn and Castlereagh City Council ("the LCCC") and is in the vicinity of Mullaghglass Landfill Site ("the Site").
4. The Site opened in 2006. It is occupied and operated by Alpha Resource Management Ltd ("Alpha").
5. Ms McAleenon claims that from early 2018 she and her family have been affected by unpleasant and disturbing odours coming from the Site. She says that she has experienced unpleasant physical symptoms which are attributable to inhalation of the noxious fumes from the Site, including headaches, nausea and stomach problems. She also says that members of her family visiting her, including her grandchildren, experienced similar symptoms as a result of the fumes. The consequences of this situation for Ms McAleenon include being unable to enjoy her garden, being forced to remain inside with all the windows and doors firmly shut, and concerns about her mental health since she feels like a prisoner in her own house.   
6. Other people who live close to the Site have complained about odours and fumes coming from it. One resident complained to her local authority, Belfast City Council ("BCC"), and to the Northern Ireland Environment Agency ("the NIEA") about the odours and the risk to her children's health. As a result, on 27 April 2021 BCC served an…