A claim for judicial review will generally fail if the court considers that there is a suitable alternative remedy available. This might, for example, be a statutory right of appeal, bearing in mind that the judicial review process does not amount to an appeal nor does it involve a re-examination of the facts. If a suitable alternative remedy is available, the court can refuse to hear the claim or refuse to grant a remedy. It has been held that for an alternative remedy to be “suitable” it must be a remedy that is “equally effective and convenient”.
In R (on the application of European Recycling Limited) v The Environment Agency [2012] EWHC 2361 (Admin); [2012] the claimant sought to quash by means of judicial review proceedings a notice served on it by the Environment Agency (“EA”) under Regulation 37 of the Environmental Permitting (England & Wales) Regulations 2010. This suspended its environmental permit and required steps to be taken to remove a risk of noise pollution at its metal waste and reclamation yard. Having issued the proceedings, the claimant obtained an interim injunction restraining the EA from giving effect to the notice. Finally, the claimant also exercised its statutory right of appeal against the notice.
The court concluded that the claimant should succeed on one of its grounds of challenge, holding that the notice failed to comply with the mandatory requirements of Regulation 37 in that it did not adequately specify the steps that were to be taken to remove the risk. Accordingly, the claimant was entitled to a quashing order, subject only to the argument maintained by the EA that the claimant had a suitable alternative remedy available to it, namely the statutory right of appeal.
The court held that, in this case, the statutory right of appeal did not amount to a suitable alternative remedy. The effect of the notice was to suspend all regulated activity on the site, and the appeal was likely to take months rather than weeks to be determined. There was no stay of the notice pending that. The resulting loss to the claimant would be substantial and the effect on its employee even more serious. Furthermore, there had been a fundamental issue of law that required to be resolved, and the statutory right of appeal was not the most appropriate method. For these reasons it could not therefore be regarded as “equally effective and convenient”.
John Martin
