McAleenon's (Noeleen) Application
| Jurisdiction | Northern Ireland |
| Judge | Horner LJ |
| Judgment Date | 27 February 2023 |
| Neutral Citation | [2023] NICA 15 |
| Date | 27 February 2023 |
| Court | Court of Appeal (Northern Ireland) |
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Neutral Citation No: [2023] NICA 15
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: HOR12012
ICOS No: 2021/41114/A01
Delivered: 27/02/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
IN THE MATTER OF AN APPLICATION BY NOELEEN McALEENON
FOR JUDICIAL REVIEW
AND IN THE MATTER OF ONGOING FAILURES OF LISBURN AND
CASTLEREAGH CITY COUNCIL AND/OR THE NORTHERN IRELAND
ENVIRONMENT AGENCY AND/OR THE MINISTER, DEPARTMENT OF
AGRICULTURE, ENVIRONMENT AND RURAL AFFAIRS TO ABATE A
NUISANCE ORDER AND POLLUTION ARISING FROM MULLAGHGLASS
LANDFILL SITE
___________
Hugh Southey KC with Sarah Minford BL (instructed by Phoenix Law, Solicitors) for the
appellant
Gordon Anthony BL (instructed by Arthur Cox, Solicitors) for Lisburn and Castlereagh
City Council
Tony McGleenan KC with Maria Mulholland BL (instructed by the Departmental
Solicitor’s Office) for the Northern Ireland Environment Agency and the Minister,
DAERA
Stewart Beattie KC with Simon Turbitt BL (instructed by Carson McDowell LLP,
Solicitors) for the notice party
___________
Before: Keegan LCJ, Treacy LJ and Horner LJ
___________
HORNER LJ (delivering the judgment of the court)
Introduction
[1] The appellant in this case, Noeleen McAleenon (“the appellant”) resides at
17a Barleywood Mill, Lisburn, which is in the Milltown area. This property falls
within the catchment area of Lisburn and Castlereagh City Council (“LCCC”). It is
also in the vicinity of Mullaghglass landfill site (“the Site”) which was opened in
November 2006. The Site is occupied and operated by Alpha Resource Management
Ltd (“Alpha”). The appellant claims that she and her family have been “plagued by
the occurrence of a nuisance odour carried by emissions emanating from the
Mullaghglass landfill Site” for the past four years, that is from in or about early 2018.
She says that the odour has a distinct smell of rotten eggs which she finds very
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disturbing. She has experienced, inter alia, painful headaches, a runny nose, eye
watering and has felt nauseous on occasions. She also attributes problems with her
stomach to the inhalation of these noxious fumes. She claims that she experiences
these physical symptoms during periods when the Site appears to be emitting these
odours.
[2] The appellant also claims that members of her family, including her
grandchildren, have experienced similar symptoms when they come to visit her.
The same problems trouble some of her neighbours apparently. She is especially
concerned that the offensive odours will cause long term damage to herself and her
grandchildren. The present consequences for the appellant include:
(a) Being unable to enjoy her garden;
(b) Being forced to remain inside with all the windows and doors firmly shut;
(c) Being worried about her mental health because she considers herself to be a
prisoner in her own home.
[3] The appellant instructed her solicitors, who have also corresponded on behalf
of other residents, to write to LCCC, Northern Ireland Environment Agency
(“NIEA”) and the Minister of the Department of Agriculture, Environment and
Rural Affair (“DAERA”) outlining her complaints in accordance with the pre-action
protocol required for a judicial review application. The appellant seeks judicial
review of the decisions, actions, and inactions of LCCC, NIEA and DAERA in
relation to the management of the Site and their obligations under various
Regulations and article 8 of the European Convention on Human Rights (“ECHR”).
The appellant has not made Alpha a respondent nor has she sought any relief
against Alpha despite her claims that it is responsible for the alleged toxic emissions.
[4] The Order 53 Statement has been the subject of much amendment, both in
respect of the grounds and relief sought. In the latest iteration the appellant seeks,
relief from the three different respondents referred to above. She seeks inter alia:
(i) An order of certiorari quashing various decisions set out by LCCC in a letter
from its solicitors, Arthur Cox, dated 29 March 2021 and, in particular, the
decisions concluding that the nuisance was not “a statutory one” and that no
abatement notice need be served.’
(ii) An order of certiorari quashing the decision of the NIEA which concluded
that the Site was operating in accordance with its permit conditions.
(iii) A declaration that LCCC had breached its statutory duty by failing to
properly investigate the odour nuisance.
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(iv) Declarations that DAERA had breached its statutory duties by failing to revise
emission limits and amend the permit and failing to give consideration to
regulation 11(2) of Part II of the Pollution Prevention and Control (Industrial
Emissions) Regulations (NI) 2013 (“the Regulations”) in determining the
relevant conditions and limitations for the permit granted to Alpha.
(v) A declaration that DAERA had breached its statutory duty to give special
consideration to Regulation 1 under Schedule 2 of the Regulations in
determining and assessing the best available techniques (“BAT”) with which
Alpha operated the Site.
(vi) An Order of Mandamus requiring LCCC to undertake appropriate
investigations, define the odour nuisance as a statutory nuisance and to serve
an abatement notice.
(vii) In addition, the appellant seeks a declaration that the appellant’s article 8
rights had been infringed contrary to section 6 of the Human Rights Act 1998
and damages for breach of rights pursuant to article 8 of the ECHR.
In addition, NIEA and DAERA cross appealed the finding that the appellant did not
have an effective remedy in the form of issuing proceedings in the Magistrates’
Court against Alpha.
[5] The application for judicial review came before the Court of Appeal in
November 2022. On 22 November 2022 the Lady Chief Justice gave a short ruling of
the court to the effect that the judicial review application of the appellant which had
been heard and determined before Humphreys J, the Learned Trial Judge (“the LTJ”)
and then appealed to this court, would be dismissed to allow the appellant to avail
of an alternative statutory remedy which remained open to her. Alternatively, the
appellant had the option of taking civil proceedings in the County Court (or High
Court) to achieve the relief she obviously desired, namely cessation of the alleged
nuisance at the Site and compensation for any personal injuries and/or
inconvenience which she and/or her family had suffered to date as a consequence of
the operation of the Site by Alpha.
[6] This court also notes that there has been an earlier application for leave to
apply for judicial review in respect of the operation of the Site which was refused by
Scoffield J. This refusal was appealed to the Court of Appeal by Alpha, who is a
notice party to the present proceedings. Alpha challenged, inter alia, the decision of
Belfast City Council (“BCC”) to serve an abatement notice upon it in respect of the
statutory nuisance arising from the operation of the Site. We understand that the
appellant, who applied unsuccessfully to become a notice party to that application,
and whose legal representation include some of those representing her in the present
application, was permitted to make submissions, and in these she supported the
action taken by BCC.
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