Alpha Resource Management Limited's Application (Leave Stage) and in the matter of a decision of Belfast City Council
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 29 December 2021 |
| Neutral Citation | [2021] NIQB 122 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 29 December 2021 |
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Neutral Citation No: [2021] NIQB 122
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11720
ICOS No: 21/058539/1
Delivered: 29/12/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY ALPHA RESOURCE
MANAGEMENT LIMITED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF
BELFAST CITY COUNCIL
___________
Stewart Beattie QC and Simon Turbitt (instructed by Carson McDowell, solicitors) for the
applicant
Paul McLaughlin QC and Denise Kiley (instructed by the Belfast City Council Legal
Services Department) for the proposed respondent
Hugh Southey QC and Sarah Minford (instructed by Phoenix Law, solicitors) for the
interested parties, Nora McCarthy and Noeleen McAleenon
Gordon Anthony (instructed by Arthur Cox, solicitors) for the interested party, Lisburn
and Castlereagh City Council
Tony McGleenan QC and Maria Mulholland (instructed by the Departmental Solicitor’s
Office) for the interested parties, the Northern Ireland Environment Agency and the
Department for Agriculture, the Environment and Rural Affairs
___________
SCOFFIELD J
Introduction
[1] This is an application for leave to apply for judicial review in which the
applicant, Alpha Resource Management Limited (“Alpha”), a limited company
which is the owner and operator of Mullaghglass Landfill (“the Landfill Site”)
situated at 26 Mullaghglass Road, Lisburn, challenges a decision of Belfast City
Council (BCC) (“the Council”) to serve an abatement notice upon it in respect of a
statutory nuisance at the Landfill Site.
[2] The applicant relies on a variety of grounds of challenge, includin g
procedural unfairness (failure to properly engage with the applicant in advance of
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the issue of the notice); failure to provide reasons; inadequate inquiry; failure to take
material considerations into account; breach of statutory duty (in the form of failure
to undertake an adequate investigation); breach of Convention rights (in particular,
Article 1 of the First Protocol ECHR); failure to comply with the Council’s own
‘Regulation and Enforcement Policy’; lack of vires (including by imposing
requirements in relation to a landfill site not within the applicant’s control and by
interfering with or usurping the role of the Northern Ireland Environment Agency
(NIEA) as the regulator of the landfill); and irrationality.
[3] For present purposes, I assume that at least some of the grounds of challenge
are arguable and would warrant the grant of leave on the merits. However, a short
leave hearing was convened in this case to consider the question of alternative
remedy. That is because the applicant has an extant appeal against the abatement
notice which is the subject-matter of these proceedings. The impugned notice was
issued pursuant to section 63(1) of the Clean Neighbourhoods and Environment Act
(Northern Ireland) 2011 (“the 2011 Act”). The applicant has appealed against the
notice to the magistrates’ court in accordance with its rights under section 65(8) of
the 2011 Act and the Statutory Nuisance (Appeals) Regulations (Northern Ireland)
2012 (“the 2012 Regulations”). However, for a variety of reasons discussed below, it
wishes to – and contends that it should be permitted to – challenge the notice by way
of judicial review without first having to exhaust the statutory appeal available to it.
[4] Mr Beattie QC appeared with Mr Turbitt for Alpha, seeking leave to apply for
judicial review. Mr McLaughlin QC appeared with Ms Kiley for the Council,
inviting the court to refuse leave to apply for judicial review on the ground of
alternative remedy. That position was supported by two interested parties who are
residents who have complained about the Landfill Site and each of whom has issued
proceedings in relation to this (described further below), who are represented by
Mr Southey QC and Ms Minford. Another district council, Lisburn and Castlereagh
City Council (LCCC) also has an interest in the Landfill Site and in these
proceedings. It was represented by Mr Anthony. Finally, Mr McGleenan QC and
Ms Mulholland appeared as interested parties for the NIEA and the Department of
Agriculture, the Environment and Rural Affairs (DAERA), which are respondents to
the proceedings brought by the interested parties represented by Mr Southey. I am
grateful to all counsel for their written and oral submissions on the discrete but
important issue considered at the leave hearing.
Factual Background
[5] It is unnecessary for the purpose of this leave ruling to set out in any great
detail the factual background to the proceedings. A short summary will hopefully
suffice.
[6] The background to the application has been comprehensively set out in the
grounding affidavit of Mr Aidan Mullan, a Director of Alpha. He describes the
Landfill Site, which is a non-hazardous landfill site which was formerly a quarry. It
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