In the matter of an application by Noeleen McAleenon for Judicial Review (Northern Ireland)
[2024] UKSC 31
Suez Recycling and Recovery UK Ltd, R (on the application of) v Environment Agency
28 November 2023
[2023] EWHC 3012 (Admin)
High Court
Suez got fined for smelly rubbish. They argued they should have been able to appeal the fine directly, but the Environment Agency said they could only appeal after getting a separate official notice. The court sided with Suez, saying the initial assessment should have been appealable. The court said the Agency was wrong to not let Suez appeal, but didn’t change the original fine itself, just ordered a re-look at it.
Key Facts
- •Suez Recycling challenged two Compliance Assessment Reports (CARs) issued by the Environment Agency (EA) for odour breaches at its Byker Reclamation Plant.
- •The CARs resulted in a 50% increase in Suez's Subsistence Payment.
- •Suez challenged the CARs through a complaint process which was unsuccessful, and then via judicial review.
- •The main dispute concerned the interpretation of the Regulators' Code 2014 regarding the right of appeal against adverse CAR scores.
- •The EA argued that an appeal was only available after a mandatory obligation (like an increased fee) was imposed, while Suez argued that the CARs themselves constituted appealable 'regulatory decisions'.
Legal Principles
Interpretation of "regulatory decision" in the Regulators' Code 2014.
Regulators' Code 2014, sections 2.3-2.5; Legislative and Regulatory Reform Act 2006, section 22.
Common law procedural fairness in administrative decision-making.
R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531.
Duty of sufficient inquiry (Tameside duty).
Not explicitly stated, but implied from the discussion of the officers’ investigation.
Judicial review principles of irrationality and error of fact.
Not explicitly stated, but implicit in the court's assessment of the EA’s decisions.
Outcomes
The claim for judicial review was allowed on the issue of the right of appeal against adverse CAR scores.
The court found that the EA's interpretation of "regulatory decision" in the Regulators' Code 2014 was too narrow and that the CARs themselves constituted appealable decisions.
The Stage 2A review decision was quashed.
The case was remitted to the EA for reconsideration in light of the court's finding on the right of appeal.
The court rejected Suez's challenges to the lawfulness of the odour assessments and the EA’s decisions regarding permit breaches and CCS/CICS scores.
The court found that the officers' subjective judgments were not unreasonable or based on mistakes of fact.
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