When is it appropriate to challenge a regulatory notice in the environmental sector by way of judicial review, rather than on a statutory appeal? Does the appeal route provide an adequate remedy, for instance when all of the alleged defects are those typically made in a public law challenge?
“Never say never” is the cautious conclusion of the Court of Appeal in Northern Ireland in respect of an abatement notice under the statutory nuisance regime, whilst at the same time dismissing the renewed application for judicial review, in Alpha Resource Management Ltd v a Decision of Belfast City Council [2022] NICA 27.
In its judgment, the Court set out all the most useful authorities derived from textbooks, academic discussions and case law, so that this is an excellent place to try and find a straw to which a claimant might cling. It is surprising how differently the principles can be summarised. However, a new analysis based on the tri-partite interests in an environmental context began to be explored by the Court: the position of the regulator (under a duty to serve a notice), of the operator (required to ameliorate any nuisance) and of the public (interested in a safe and clean environment).
The only acceptable basis for allowing a judicial review of an abatement notice, so far as the appeal judges could tell, is when no (or next to no) evidence is required and when the matter can be determined by reference to the notice itself (see the Court of Appeal in R v Falmouth and Truro PHA, ex p. SWW Ltd [2001] QB 445). Judicial review is otherwise decidedly a “last resort”.
It may well have helped in this case that the respondent spiked the claimant’s guns by accepting that the district judge was entitled to make a determination as to procedural fairness, the lack of reasons, bias, inadequate inquiry, and indeed all the other grounds relied on by the claimant in its application: “Mr McLaughlin on behalf of the proposed respondent has expressly accepted that all matters may be heard on appeal including the procedural issues. Therefore, the applicant may challenge all of the evidence and have evidence called to determine whether or not the abatement notice was justified. This leads us to a conclusion in line with that of the trial judge that the statutory appeal provided for is an effective alternative remedy.”
This is a judgment which will apply in other regulatory areas, such as environmental permitting, although in permitting cases, the lack of any interim relief has been found to tip the balance in favour of a granting a claimant’s application.