Further exposure for Waste Operators? The unintended consequences of Judicial Review

Can a Claimant bring a Judicial Review Claim instead of a direct Claim against a Waste Operator?

In the latest of our series of Judicial Review articles, we look at the significance of a recent case from Northern Ireland which is bound to provide resonance for England & Wales.

The decision from the Supreme Court serves as a serious concern for waste operators – potentially increasing their exposure to challenges from local residents.

The case summary

The case concerns a claim brought by a local resident (Noeleen McAleenon) who lived in close proximity to the Mullaghglass landfill site in Lisburn, Northern Ireland.

The Claimant alleged that she had suffered numerous physical and psychological symptoms (including a deterioration in her mental health) as a result of a foul odour emanating from the landfill site over a 5–6-year period.

The Claimant brought a variety of complaints to the Local Authority and various Government Agencies.

Significantly, the Claimant did not seek to bring action directly against the Site Operator. Instead, she escalated claims of breach and failure by Lisburn & Castlereagh City Council (LCCC), the Northern Ireland Environment Agency (NIEA) and the Department of Agriculture, Environment & Rural Affairs (DAERA).

More specifically, the Claimant advanced the following, by way of a Judicial Review Claim to the High Court:

  1. LCCC had breached its statutory duties by failing to conduct proper investigations into the complaints of odour nuisance.
  2. NIEA and DAERA had failed in their duty to properly assess and manage the emission criteria within the site permit.
  3. A claim under Article 8 ECHR for violation of family and private life.

The Court’s ruling  

In the first instance (in the High Court), the Claim was dismissed on the basis that the public agencies had properly exercised their wide statutory discretion.

Curiously, the High Court ruled that the Claimant has no alternative remedy (ie. No private claim against the Operator).

On Appeal to the NI Court of Appeal, the Claim was again dismissed but for entirely different reasoning – being that the Claimant had a direct and alternative claim/remedy against the Operator (being a remedy in the Magistrates’ Court or County Court).

The statement from the Court of Appeal is strong and instructive: “…[The Judicial review Claim has been] used as the excuse to commence more complex judicial review proceedings against the regulators rather than proceeding directly against the alleged tortfeasor…”.

It is perhaps surprising, in our view, that the Supreme Court unanimously upheld the Claimant’s position and remitted the case back to the Court of Appeal to deal with the claim on its merits.

Effectively, the Supreme Court stated that the presence of an alternative claim/remedy is not a bar to bringing Judicial Review proceedings. Claimants therefore have a choice when it comes to bringing their claim.

More particularly, the Supreme Court offered the following points:

  • Judicial Review is a comparatively speedy and simple process.
  • Judicial Review claims involve significantly less time and cost than a private prosecution or standard civil claim (in nuisance).
  • Claimants should not be expected to suffer the additional burden of a private claim in circumstances where a claim against the Regulator is less expensive.

The Decision from the Supreme Court is perhaps surprising and possibly carries unintended consequences across the full regulatory and public law spectrum – and not just confined to waste cases.

Arguably, the door is now open for Claimants to rely on public agencies to force a remedy despite alternative remedies or claims being available.

Of course, the remedies and powers available to public agencies are often more immediate, more direct and more serious. It is a less expensive and much less risky proposition for Claimants.

Will this ruling result in Judicial Review claims becoming the first port of call for would-be Claimants?

Operators have long been aware of the prospect of direct nuisance claims brought by local residents.

So too, Operators will be mindful of pressures and influence from public agencies – who have statutory powers and regulatory opportunities.

Operators might now face the prospect of claims in Judicial Review (compelling public authorities to take action).

We believe that the Decision represents a further detriment for Operators. It potentially confers a greater degree of exposure – to an armoury of regulatory powers and remedies.

In practice, we prospectively see private Claimants stepping into the shoes of a public agency when seeking remedial action.

Alex Sandland and Patrik Jones-Wright are on hand to support operators with any proceedings including High Court, Appeals, and Judicial Reviews.