Bradley v Meath County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Costello
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 2519
• Date: 01 January 1991
• Court: High Court
• Docket Number: JUDICIAL REVIEW NO. 5JR/1990

1990 WJSC-HC 2519

THE HIGH COURT

JUDICIAL REVIEW NO. 5JR/1990

BRADLEY v. MEATH CO COUNCIL

BETWEEN

THOMAS BRADLEY AND JOAN DUNNE

APPLICANTS

AND

MEATH COUNTY COUNCIL

RESPONDENTS

Citations:

PUBLIC HEALTH (IRL) ACT 1878 S52

PUBLIC HEALTH (IRL) ACT 1878 S54

LOUTH CO COUNCIL V MATHEWS UNREP GANNON 14.4.1989

HOUSING OF THE WORKING CLASSES ACT 1885 S7

EUROPEAN COMMUNITIES (WASTE) REGS 1979 SI 390/1979

Synopsis:

LOCAL GOVERNMENT

Sanitary services

Powers - Premises - Refuse - Removal - Failure - Judicial review - Mandamus - Statute - Interpretation - Enactment not ~in pari materia~ - Householder's application for order compelling authority to provide removal service - European Communities (Waste) Regulations, 1979 (S.I. 390), art. 4 - Public Health (Ireland) Act, 1878, ss. 52, 54 - Housing of the Working Classes Act, 1885, s. 7 (1990/5 JR - Costello J. - 19/10/90) - 1991 ILRM 179

|BRADLEY v. MEATH COUNTY COUNCIL|

1 Judgment of Mr Justice Costello delivered the 19th October 1990

2 For many years the Meath County Council provided a refuse collection service for the collection of household refuse. It was operated by its own officials and employees. In 1984 it decided to charge householders for the service (rather than pay for it out of county rates), a decision which proved to be highly unpopular and difficult to enforce. As a result over the six-year period during which the charges were in operation the losses sustained in providing the service amounted to over £2m. So the County Manager decided to recommend to the Council's elected representatives that the entire service should be discontinued and that the refuse collection in the county be "privatised". By this was meant a proposal by which the Council would issue permits to approved private contractors who would collect refuse and charge householders for the service which the contractors, in lieu of the Council, would then provide. The elected members debated the proposal at their Meeting on the 26th September 1989. It turned out to be a controversial one and it became necessary to adjourn further discussions on it. At the adjourned meeting on 6th November the proposal, by a narrow majority, was adopted and has since the beginning of the year been implemented. As a result the Council no longer supplies a refuse collection service in the county.

3 Mr. Thomas Bradley, one of the Applicants in the present proceedings, is an elected member of the Council and whilst not suffering any personal inconvenience from the discontinuance of the service has objected to the decision to privatise the service on a number of grounds, including the legal ones I will presently examine. He has been joined in these proceedings by the second Applicant, Mrs. Dunne. She has indeed suffered inconvenience. Previously she had enjoyed a collection service operated by the Council for which she was perfectly content to pay but under the new dispensation the private collector in her area has declined to collect her refuse (even though she is fully prepared to pay him) and the nearest approved dump to her is twenty five miles away. Both Applicants claim that the Council is under a statutory duty to supply a refuse collection service and ask the court to order it to fulfil that duty by means of an order of mandamus.

4 This claim involves, in the first instance, an examination of the provisions of Sections 52 and 54 of the Public Health (Ireland) Act, 1878.

The Public Health (Ireland) Act, 1878

5 Section 52 of the 1878 Act provides that:-

"Every sanitary authority may, and when required by order of the Local Government Board shall, themselves undertake or contract for -"

6 The removal of house refuse from premises; .....".

7 I have underlined the words "may" and "shall" to draw attention to what I think must be the clear meaning of this provision. Its effect is that sanitary authorities are empowered (a) to undertake themselves the removal of house refuse or (b) to contract for its removal by others. But they were not statutorily obliged to do either, unless so ordered by the Local Government Board (now the Minister for the Environment). It is manifest that a statutory duty under the section only arises after a ministerial order has been made.

8 The Applicants seek to circumvent this difficulty by the following argument. It was urged that this section should not be read in isolation and that it should be construed in conjunction with Section 54 which provides:-

"Where the sanitary authority do not themselves...