Public law landfill claims and human rights

9 October 2025 by David Hart KC

David Hart K.C. 

McAleenon, Application for judicial review [2025] NICA 44

Summary

This decision by the Northern Ireland Court of Appeal (NICA) on 16 September 2025 is the latest stage of long-running litigation concerning odour from the Mullaghglass landfill, in Lisburn, Northern Ireland. It is an object lesson in the various pitfalls which may stand in the way of a successful judicial review of public authorities’ response to environmental problems.

First, the parties. Ms McAleenon lived just over a mile from the landfill site and had been affected by odours from about 2018 onwards, caused by hydrogen sulphide generated by the waste. She sued Lisburn Council (LCCC) who were under a duty to investigate potential statutory nuisances in their area. She also added as defendants the NI Environment Agency (NIEA), which ran the environmental permitting system for the landfill, and the Department of Agriculture, Environment and Rural Affairs (DAERA, the Northern Irish equivalent of DEFRA) who oversaw NIEA. She filed medical evidence from a Dr Sinha supporting a linkage between hydrogen sulphide and lung damage.

In May 2022, Ms McAleenon failed before Humphreys J against all defendants. She appealed to the Court of Appeal ([2023] NICA 15), who did not engage with the merits but determined that Ms McAleenon had alternative remedies which she should have pursued – her own statutory nuisance prosecution or a civil claim for private nuisance. Part of their reasoning was that it was unjust that the claim should be determined without cross-examination of the relevant expert witnesses.

This decision was reversed by the Supreme Court in 2024. The SC said that it is a matter for a claimant to decide which sorts of claims were better calculated to request environmental regulators to comply with their public law duties: [4] of the latest NICA decision. 

The SC referred the case back to NICA, and hence this decision of 16 September 2025.

But this choice of remedy for Ms McAlennon came at a cost. She chose the public law route and she had therefore to abide by the public law rules about deference to the specialist regulators’ opinions when concerned with hazardous activities. Ultimately it was these principles which led to the NICA to dismiss her claim. But, for her status as victim under the Convention, it probably did not matter that Ms McAleenon had moved out of the immediate vicinity of the landfill, nor did it matter that the landfill had closed in November 2022.

The detail

This case is a bit deja vu for me. The arguments and evidence in McAleenon tracked another case ([2021] EWHC 2501 (Admin), heard in August 2021) where the claimant was Mathew Richards, an asthmatic child who was suing the English Environment Agency (EA) about hydrogen sulphide from another landfill, Walleys. I was in this case, for the interested party landfill operator. 

Fordham J had found for Mathew, after very unusually hearing from rival expert medical witnesses including Dr Sinha. The witnesses were in effect, “hot-tubbed”, with them both in witness boxes at the same time, and with all questioning coming from the judge. The EA had not done enough in respect of the problem, the judge decided, and he gave a declaration (not damages) to that effect.

In January 2022, the English CA [2022] EWCA Civ 26 reversed Fordham’s decision in Richards. It decided that the judge had wrongly prescribed levels of hydrogen as determined by Public Health England, as an enforceable standard. He had acted in a way which was not required of him by the Human Rights Act.

1st instance

Ms McAleenon started her proceedings in May 2021, and her arguments tracked those in the Richards case – and hence these had to be adjusted shortly before the hearing before Humphreys J in 2022, in the light of the CA’s recent reversal of the judgment by Fordham J.

Humphreys J rejected a broad set of arguments concerning the LCCC’s duties under the statutory nuisance jurisdiction; it had been entitled to refer the matter to the NIEA, and the NIEA and DAERA were not obliged to set some guidance or standard for lifetime exposure to hydrogen sulphide. Their decisions were not Wednesbury unreasonable; under human rights caselaw, including Fadeyeva [2007] 45 EHRR 10 (concerning regulation of a polluting steelworks), it was not the court’s role to substitute its view for that of the public authorities. 

In doing so, Humphreys J commented on the limited extent to which expert evidence which had not been put before the decision-maker could be relied upon, although it was admissible to prove victim status under the HRA, due diligence, and possibly irrationality.

NI Court of Appeal (1)

We have seen above that the decision of the NICA that Ms McAleenon had alternative remedies was determinative of her appeal. In doing so it was sceptical of the extent to which untested expert evidence was admissible in public law proceedings. This provided further grist to the mill that statutory nuisance proceedings or private nuisance claims were the more suitable venue; in each, expert evidence could be called and tested in cross-examination. It concluded that the application was unsuited to the judicial review procedure: see [74]. It was also pointed out that Ms McAleenon could have complained to the NI Public Service Ombudsman.

Supreme Court

Rosalind English has already covered the Supreme Court decision [2024] UKSC in her post of 3 November 2024. In short, Lords Sales and Stephens, for the Court, summarised public law remedies:

1. Judicial review is directed to examination of whether a public authority has acted lawfully or not.
2. JR proceedings do not generally turn on disputes of fact. Rather than resolving disputes of fact, the court hearing a judicial review application must decide the legal consequences in the light of undisputed facts about what information the public authority had and the reasons it had for acting.

And hence the NICA was wrong to conclude that it had to make definitive findings of fact. 

“The model which the Court of Appeal thought was relevant, of a civil trial in which the court itself would have to determine the facts on the basis of the balance of probabilities, the onus of proof on particular issues, and cross-examination of witnesses, was simply inappropriate in this context.”: [44](ii).

Because the NICA had undertaken an incorrect approach, the Supreme Court referred the case back for determination by NICA on the merits

NI Court of Appeal (2)

So finally to NICA’s determination of the merits. In the light of the Supreme Court’s views, NICA was not asked to consider the competing expert medical and pollution control evidence. It summarised the remaining issues at [7] 

(i) Did the LCCC breach its statutory duty to investigate complaints about statutory nuisances?

(ii) Did the NIEA and DAERA breach their statutory duties and/or act unlawfully by failing to identify a level of lifetime exposure to hydrogen sulphide that posed a risk?

(iii) Did all three respondents breach the appellant’s rights under article 8 of the ECHR?

It answered all these questions in the negative. The LCCC had a discretion as to how to discharge its statutory nuisance duty, and it discharged its obligation by a combination of its own investigations and working with NIEA, and Public Health Agency officials: [57]-[59].

The case against NIEA and DAERA was that they had a duty under the 2013 (permitting) Regulations to engage with standards and guidance adopted in England about lifetime exposure to hydrogen sulphide. NICA agreed with NIEA and DAERA that this contention boiled down to a claim that there is a legal obligation on the relevant public authorities to produce more specific guidance on the relevant values of H₂S emissions. “We agree that this is now the primary question at issue in this appeal.” [61].

Reading over from Supreme Court statements about asylum policies, NICA decided that

it appears that there is no obligation on public authorities to produce more specific guidance about H₂S levels. …..The issue in this case, however, is whether duties to regulate mean that there is a need for a clear understanding as to whether there is an unsafe level of lifetime exposure to H₂S.

NICA considered evidence concerning this landfill and Walley’s quarry, and it noted that there was no hydrogen sulphide limit in the Walleys’ permit. 

At [82], it drew matters together:

“the evidence in this case clearly demonstrates thorough engagement with the approach adopted by the UKHSA in England in respect of Walley’s Quarry and a fulfilment by NIEA of its statutory duties under the 2013 Regulations. This court cannot go further into a specialist area and substitute its own view when specialist agencies including the PHA have addressed the issue. The case law clearly states it is not within the court’s powers to direct a public authority to publish specific guidance or prescribe specific details for guidance.”

It proceeded to draw comfort not only from the evidence deriving from England and Walleys’ Quarry but also from the legal guidance given by the Court of Appeal in Richards.

Ms McAleenon also sought to rely on more recent guidance from the Grand Chamber of the ECtHR Verein KlimaSeniorinnen Schweiz v Switzerland , in which Switzerland was found to have breached the article 8 rights of a group of older women by failing to implement adequate climate change mitigation policy. 

She argued that this case highlights the obligation on authorities to identify and evaluate circumstances in which there may be harm to the environment in the future. In the present case, this translated to a duty to assess the circumstances in which gases such as hydrogen sulphide cause harm. 

As for article 8, it was said that NIEA and DAERA failed to investigate the nuisance complaint with due diligence and with proper consideration of competing interests, in accordance with the Fadeyeva and Richards cases. The NIEA and DAERA failed to take account of the UKHSA’s guidance values for H₂S, failed to assess lifetime exposure risks, and failed to demonstrate how they are aiming to achieve exposure less than that level. 

NICA rejected these arguments at [101] The first instance judge applied the correct tests which had emerged from the Richards and Fadeyeva cases. He concluded that the appropriate level of due diligence was applied. There was extensive evidence on behalf of the NIEA, which illustrate the reasons why it did not implement an emission limit or guidance value for long-term or lifetime exposure to hydrogen sulphide. That decision was rational, proportionate and lawfully made. 

Finally a few words on victim status. Ms McAleenon had moved away from the site sometime before the final hearing, though still visits relatives in the area regularly. That, combined with the closure of the landfill, meant that she did not meet the threshold for lifetime exposure to hydrogen sulphide. NICA found that there was “some strength” in these arguments, but proceeded on the basis of the judge’s finding that article 8 was engaged in her case. 

The Court also distinguished the Swiss climate change case 

“as it concerned the duty of states to urgently protect against the global climate change emergency and the importance of setting national goals in accordance with international treaties like the Paris Agreement. It has not been suggested that there is a global emergency or international treaty in respect of long-term exposure to hydrogen sulphide which places NIEA/DAERA under an analogous obligation.”

Conclusion

Where the regulators have asked themselves the right substantive and procedural questions, environmental judicial reviews are not easy. Claims run up against the principle to be found in Fadayeva (ECtHR) and Richards (CA) that the courts should not intervene by substituting their judgments for the decisions of specialist regulators. Where regulators have carried out apparently diligent investigations, either on their own or, as in the present context with the other relevant authorities, it is difficult for a claimant to make good an argument that they should have done more.