Alpha Resource Management Limited Application for Judicial Review and in the matter of a decision of Belfast City Council
| Jurisdiction | Northern Ireland |
| Judge | Keegan LCJ |
| Neutral Citation | [2022] NICA 27 |
| Date | 19 May 2022 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2022] NICA 27
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: KEE11820
ICOS No: 21/58539
Delivered: 19/05/2022
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
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 with Simon Turbitt (instructed by Carson McDowell, Solicitors) for
the Applicant
Paul McLaughlin QC with Denise Kiley (instructed by the Belfast City Council Legal
Services Department) for the Proposed Respondent
___________
Before: Keegan LCJ and Treacy LJ
___________
KEEGAN LCJ (delivering the judgment of the court)
Introduction
[1] This is a renewed application for leave following a decision of Scoffield J (“the
trial judge”) delivered on 29 December 2021 wherein he refused leave to apply for
judicial review to the applicant. The applicant is a limited company and the owner
of Mullaghglass Landfill Site. The applicant challenges a decision of Belfast City
Council (“BCC”) to serve an abatement notice upon it in respect of a statutory
nuisance at the aforementioned site.
Background
[2] The background is set out comprehensively in the judgment of the trial judge
and so we will not repeat it and gratefully adopt the narrative provided by him.
Suffice to say that the following are the material background facts as we see them for
the purposes of this application:
(i) The applicant operates the landfill site pursuant to a permit issued under the
Pollution Prevention and Council (Industrial Emissions) Regulations
2
(Northern Ireland) 2013 which is issued by the Northern Ireland Environment
Agency (“NIEA”).
(ii) As a result of the provision of the permit the applicant operates an Odour
Management Plan (“OMP”) which the applicant states has been operated in a
manner satisfactory to the NIEA.
(iii) Local residents in the BCC area along with residents in the Lisburn City
Council (“LCC”) area have complained about unpleasant odours which they
say emanate from the site and about emissions which they state are having
adverse health effects upon them for some time.
(iv) The BCC therefore decided at a council meeting to issue an abatement notice
against the applicant in relation to the site and the alleged nuisance
emanating from it.
(v) This notice is dated 27 April 2021 and is issued under section 63(1)(d) of the
Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 (the
Act”).
(vi) The applicant has a statutory right of appeal from the notice mentioned at (v)
above pursuant to section 65(8) of the Act. This appeal has been exercised to
the Magistrates’ Court but remains in abeyance pending the application for
judicial review.
The Issues
[3] This case turns on a net point of whether or not the statutory right of appeal
which is provided in the Act is an effective alternative remedy when issue is taken
with an abatement notice as in this case. The applicant contends that it is not an
effective remedy because it cannot correct the alleged illegality which is described in
the Amended Order 53 Statement filed on behalf of the applicant dated 1 April 2022.
[4] In the extensive grounds of challenge the applicant posits the following:
(i) That there has been procedural unfairness as a result of a failure to engage
with the applicant. The applicant says that with the exception of a site visit by
one of the proposed respondent’s officers on 13 January 2021, the applicant
received no communication or had any interaction with the proposed
respondent prior to the service of the abatement notice. As such the applicant
contends that it was deprived of the opportunity to inform the proposed
respondent’s consideration of the complaints received by it and how those
complaints may or may not relate to operations at Mullaghglass landfill or to
address the operations of the site at the time of the relevant motion being
1 April 2021.
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