Property disputes happen all day, every day, up and down the UK. For lawyers, many of these disputes will follow a familiar pattern, often prompting a familiar approach to solving them. A recent UK Supreme Court (“UKSC”) case invites us to think about the familiar, in a fresh light!
What is a private nuisance?
The use and enjoyment of your land is protected by the law of private nuisance.[1]You can sue another for ‘nuisance’, which can be anything that substantially interferes with the ordinary use of your property, short of direct trespass. Whilst such interference is frequently caused by something tangible coming from the defendant’s property, it can be something intangible such as fumes, noise, vibration or an unpleasant smell.[2]
Where a claimant establishes such a nuisance, the normal remedy would be an injunction, in order to stop the nuisance; alternatively, the court can award damages instead of an injunction.[3] Such remedies would usually be sought against the party responsible for the nuisance, in ordinary (Part 7) civil proceedings but these can be very costly and time consuming.
What if there was a (relatively) cheaper and quicker approach to dealing with what is, essentially, a private property dispute between two neighbouring landowners? A recent ruling by the UKSC, vindicating Noeleen McAleenon’s judicial review (JR) claim, suggests that, in certain circumstances, there may well be.
Judicial Review: an alternative route?
A JR claim allows individuals to challenge the lawfulness of decisions made by a public body. It is a two-stage process: first, the court has to decide if the claim can proceed; second, if permitted, it will go to a full hearing.
Given such proceedings do not normally involve extensive court directions nor cross examination of witnesses it is a cheaper process than ordinary civil proceedings (see above). Further, though of course there would be additional costs if legally represented, the court fees are (relatively) inexpensive. It is £174.00 to commence a JR claim a further £876.00 for permission to proceed.[4]
That stated, a JR claim is a ‘remedy of last resort’ and is not usually appropriate when there is a ‘suitable alternative remedy’ available to a claimant. This is where Ms. McAleenon nearly came unstuck until the UKSC clarified the scope of a ‘suitable alternative remedy’ defence to a JR claim.
In the matter of an application by Noeleen McAleenon for Judicial Review[5]
Ms. McAleenon lived near a landfill site (“the site”), which was owned and operated by Alpha Resource Management Ltd (Alpha). She claimed that from early 2018 she and her family had been detrimentally affected by unpleasant and disturbing odours coming from the site. Other people had similarly complained about this. There were two relevant regulatory regimes which covered the operation of the site, which various public bodies were responsible for enforcing. [6]
Ms. McAleenan’s solicitors sent successive pre-action letters to the various bodies requesting each of them to exercise their respective powers to require Alpha to manage the site more effectively and to eliminate the odours and fumes which affected her property. Dissatisfied with responses received, Ms. McAleenon commenced JR proceedings against the various public bodies.[7]
Two of the defendant public bodies defended the claim based on the availability of an alternative remedy. That was dismissed at first instance but then reversed by the N.I. Court of Appeal (“the CA”). The CA considered that JR proceedings were unsuited in this case, primarily due to conflicting expert evidence and that Ms. McAleenon had suitable alternative remedies, namely private nuisance in the county or High Court, or by way of private prosecution. [8] Ms McAleenon therefore appealed to the UKSC.
The UKSC decision
The UKSC provided welcome clarity on the nature of JR proceedings and the scope of ‘suitable alternative remedies’ defence.
JR proceedings
The UKSC vindicated Ms McAleenon’s JR claim and in so doing, decided that the CA fell into error in its assessment of the position. The CA thought it needed to make definitive findings of fact about whether the offensive odours emanated from the site. That was a misconception concerning the court’s role in JR proceedings. Having investigated, the regulatory bodies decided not to take enforcement action against Alpha. The question for the court was whether they had done enough to justify that decision in the light of all the circumstances, applying the usual rationality standard.[9]
The court’s role was to evaluate the quality of the information available to the public bodies to assess if their decision was lawful. That exercise did not require oral evidence and cross-examination. Nor was the reviewing court simply obliged to dismiss the JR claim in the absence of challenge to the defendants’ expert evidence by cross-examination. The model of an ordinary civil trial was simply inappropriate in this context.[10]
Alternative Remedies
Ms. McAleenon brought a JR claim against the regulators to compel them to fulfil the public law duties to which she maintained they were subject, for which the JR procedure was well adapted and appropriate. The fact that she could have brought other proceedings of a different nature in which different issues would arise and in light of which different procedures would have been required, did not show that she had a suitable alternative remedy with regard to the claim she did wish to bring.
In a broad sense, as the CA had noted, Ms. McAleenon’s objective was to prevent noxious gases from escaping from the site. That was her overall objective. However, there were different forms of legal proceeding available to her which might ultimately lead to that outcome, each giving rise to different issues and each with their own associated risks and costs. The question of whether a claimant has a suitable alternative remedy available to them depends on the type of claim the claimant has chosen to bring and what relief they have sought against the particular defendant.[11]
Why this case matters
The message of McAleenon, is clear:
- Just because you have a different claim, does not mean you have to pursue it nor that, if you don’t pursue it, it makes a JR claim inappropriate. Whilst a JR claim is a remedy of last resort, this is not how ‘suitable alternative remedy’ is measured
- The question of whether a claimant has a suitable alternative remedy available to the claimant depends on the type of claim the claimant has chosen to bring and what relief they have sought against the particular defendant (as stated above)
- A claim against public bodies with regulatory duties to be enforced, where their conduct in that regard is legitimately challengeable of course, is wholly appropriate for JR proceedings (in fact, it is unlikely that the same could be challenged in any other way – subject to statutory appellate or review procedures as may be applicable)
- The fact that a JR claimant has a collateral objective in seeking to enforce public law duties which ultimately may vindicate their private rights, and which could have been achieved by other means, does not mean JR proceedings are inappropriate
- JR proceedings are not primarily about fact-finding, though exceptionally cross-examination can be ordered to take place. They are about:
- Reviewing the material that was before the public body when they made their decision
- Reviewing the decision itself and
- Deciding whether the decision was legally justifiable based on the stated material
What this means for property disputes
Why is this exciting? Well because, there may be more than one way to skin a particular legal cat. As stated at the outset, JR proceedings are (relatively) inexpensive. Where available, it may legitimately provide a more cost-effective means for claimants to achieve vindication of their private rights. The fact that a claimant may have such collateral objective, does not of necessity taint the JR claim. Novel solutions is where property meets public law.
For us lawyers who love to do well by our clients and are ethically required to act in their best interests, it begs us to think more creatively about a problem. Many contentious property lawyers, understandably, having considered Ms. McAleenon’s case may have only considered pursuing Alpha in the usual way, for the usual remedies. If contested, very expensive.
Of course, not every actionable nuisance will take place within a regulated context and, in that respect, JR proceedings may not be available in every situation. Where applicable however, McAleenon begs us to consider, what else might be done here?
Conclusion
Boundary and nuisance disputes can be complex, costly, and stressful. Wright Hassall’s specialist property lawyers can guide you through all available legal routes to achieve the best possible outcome for your situation. We combine deep legal expertise with practical problem-solving to help you resolve disputes efficiently and effectively.
[1] Para 10, Fearn
[2] Paras 9, 12, 13 and 21 of Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) [2023] UKSC 4 (“Fearn”)
[3] Paras 100 and 101 of Coventry and others (Respondents) v Lawrence and another (Appellants) (No2) [2014] UKSC 46 (“Coventry”)
[4] As at date of writing. Court fees are subject to increase and court form EX50A is updated periodically accordingly. There can be other applicable court fees, depending on the circumstances
[5] [2024] UKSC 31 (“McAleenon”)
[6] Ibid. paras 4, 5 and 8
[7] Ibid. paras 9, 10 and 11
[8] Ibid. paras 18 to 29
[9] Ibid. para 44
[10] Ibid. para 44
[11] Paras 49, 53 and 55
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