De Burca v Wicklow County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: MR. JUSTICE AINDRIAS Ó CAOIMH
• Judgment Date: 24 May 2000
• Neutral Citation: [2000] IEHC 182
• Date: 24 May 2000
• Docket Number: No.42JR/2000

[2000] IEHC 182

THE HIGH COURT

No.42JR/2000

DE BURCA v. WICKLOW CO COUNCIL

(JUDICIAL REVIEW

BETWEEN

DÉIRDRE DE B ÚRCA

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

RESPONDENT.

Citations:

EUROPEAN COMMUNITIES (WASTE) REGS 1979 SI 390/1979 ART 4(2)

WASTE MANAGEMENT ACT 1996 S33(1)(a)

EEC DIR 91/156 ART 7

EEC DIR 91/156 ART 8

EUROPEAN COMMUNITIES (WASTE) REGS 1979 SI 390/1979 ART 4(1)

WASTE MANAGEMENT ACT 1996 S33(2)

WASTE MANAGEMENT ACT 1996 S33(2)(a)

WASTE MANAGEMENT ACT 1996 S33(3)

EEC DIR 75/442

WASTE MANAGEMENT ACT 1996 S33(3)(b)

WASTE MANAGEMENT ACT 1996 S34

ENVIRONMENTAL PROTECTION AGENCY ACT 1992

WASTE MANAGEMENT ACT 1996 S5

WASTE MANAGEMENT ACT 1996 S34(1)

WASTE MANAGEMENT ACT 1996 S34(11)(a)

WASTE MANAGEMENT ACT 1996 S32(1)

WASTE MANAGEMENT ACT 1996 S32(2)

EEC DIR 91/156 ANNEX IIA

EEC DIR 91/156 ANNEX IIB

FISHENDEN V HIGGS & HILL LTD 1935 153 LT 128

BULA LTD V TARA MINES LTD (NO 2) 1987 IR 95

REDLAND BRICKS LTD V MORRIS 1970 AC 652

CAMPUS OIL LTD V MIN FOR INDUSTRY (NO 2) 1983 IR 88

KEANE EQUITY & THE LAW OF TRUSTS

ICC BANK PLC V VERLING 1995 1 ILRM 123

SHEPARD HOMES LTD V SANDHAM 1971 CH 340

WASTE MANAGEMENT ACT 1996 S6(2)

WASTE MANAGEMENT ACT 1996 S1(2)

EUROPEAN COMMUNITIES (WASTE) REGS 1979 SI 390/1979 ART 3

EUROPEAN COMMUNITIES (WASTE) REGS 1979 SI 390/1979 ART 5

WASTE MANAGEMENT ACT 1996 S32(4)

WASTE MANAGEMENT ACT 1996 S32(5)

WASTE MANAGEMENT ACT 1996 S5(1)

WASTE MANAGEMENT ACT 1996 S32(6)

EEC DIR 91/156 ART 12

WASTE MANAGEMENT ACT 1996 S33(1)

WASTE MANAGEMENT ACT 1996 S33(9)

WASTE MANAGEMENT ACT 1996 S33(1)(B)

WASTE MANAGEMENT ACT 1996 S33(3)(a)

WASTE MANAGEMENT ACT 1996 S33(3)(b)

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

WASTE MANAGEMENT ACT 1996 S33(3)

WASTE MANAGEMENT ACT 1996 S33(3)(c)

AMERICAN CYANAMID V ETHICON LTD 1975 AC 296

Synopsis

Environmental Law

Environmental; waste disposal; judicial review; mandamus; respondent ceased collection of household refuse within its functional area; applicant seeking interlocutory order to compel respondent to resume collection; whether applicant raised fair issue to be tried that respondent in breach of its obligations under s.33, Waste Management Act, 1996; whether balance of convenience in favour of applicant.

Held: As applicant failed to demonstrate that she personally has been deprived of a waste collection service, balance of convenience favours respondent; interlocutory relief refused.

De Búrca v. Wicklow County Council - High Court: Ó'Caoimh J. - 24/05/2000

The applicant had challenged the decision by the respondent terminating its collection of household waste. The applicant brought proceedings seeking, inter alia, to compel the respondent to resume the collection of waste and to adopt a waste management plan for the county area. The applicant claimed that the respondent by its activities was failing to comply with both the Waste Management Act, 1996 and European legislation. The respondent contended that alternative satisfactory waste collection arrangements had been put in place. Ó Caoimh J held that the applicant had failed to demonstrate that she personally had been deprived of a waste collection service. The balance of convenience favoured the refusal of the relief sought.

24 thDAY OF MAY, 2000 BYMR. JUSTICE AINDRIAS Ó CAOIMH

MR. JUSTICE AINDRIAS Ó CAOIMH

The Applicant Déirdre de Búrca is an elected member of Wicklow County Council representing the Green Party and resides at 1 Wellington Court, Novara, Bray in the County Wicklow.

By Order of Mr. Justice O'Neill made the 7th day of February 2000, the Applicant was given leave to apply by way of an application for judicial review for the following relief;

1 A Declaration that the Respondent is required by article 4(2) of the European Communities (Waste) Regulations 1979 and the Waste Management Act 1996to prepare a plan pursuant to the said article as soon as possible

2 A Declaration that the Respondent is in breach of article 4(2) of the European Communities (Waste) Regulations 1979 and the Waste Management Act 1996having failed to prepare a plan pursuant to the said article as soon as possible.

3 A Declaration that the Respondent is the competent authority with responsibility within the given zone of functional area of the County of Wicklow, for planning, organisation, authorization and supervision of waste disposal operation pursuant to Counsel Directive 91/156/EEC and is, as such, required to draw up as soon as possible one or several plans relating to the matters set out in Article 7 thereof.

4 A Declaration that the Respondent, as the competent authority within the given zone of functional area of the County of Wicklow, for the planning, organisation, authorisation and supervision of waste disposal operations pursuant to Counsel Directive 91/156/EEC, is obliged pursuant to Article 8 of the said Directive to take the necessary measures to ensure that any holder of the waste has it handled by a private or public waste collector or a disposal undertaking or disposes it himself in accordance with Article 4 of the said Directive.

5 An Order of mandamus requiring the Respondent to prepare a plan pursuant to Article 4(2) of the European Communities (Waste) Regulations 1979 and the Waste Management Act 1996as soon as possible.

12 An Order of mandamus requiring the Respondent to collect, or arrange the collection of, household waste within the functional area of the County of Wicklow.

7 A Declaration that the Respondent is in breach of section 33(1)(a) of the Waste Management Act 1996to collect or arrange the collection of household waste within the functional area of the County of Wicklow.

8 A Declaration that the Respondent is in breach of section 33(1)(a) of the Waste Management Act 1996in failing to collect or arrange the collection of household waste within the functional area of the County of Wicklow.

9 An Order of Certiorari quashing the decision of the Respondent by County Manager's Order Reference number. Env. ⁷⁰/₀₀ and dated the 27th day of January 2000 to cease its household refuse collection service with effect from close of business on Friday, 28th January 2000.

10 Interim and/or interlocutory relief.

11 Such further or other Order as to this Honourable Court doth seem fit and meet.

12 The costs of and ancillary to these proceedings,

The grounds upon which relief is sought or set out at paragraph E in the Statement filed on the 8th of February 2000 and are as follows:

1 The Respondent is responsible for the planning, organisation, authorisation and supervision of waste operations in the functional area of the County of Wicklow pursuant to Article 4(1) of the European Communities (Waste) Regulations 1979 and the Waste Management Act 1996. The Respondent was required by article 4(2) of the European Communities (Waste) Regulations 1979 to prepare a plan indicating:-

(a) the type and quantity of waste for disposal

(b) general technical requirements

(c) suitable disposal sites, and

(d) any special arrangements for particular wastes.

2 The Respondent has failed to prepare a plan as required by Article 4(2) of the said Regulations and is in breach of the duty imposed by Article 4(2).

3 The Respondent is the competent authority with responsibility, within the given zone of the functional area of the County of Wicklow, for planning, organisation, authorisation and supervision of waste disposal operations pursuant to Council Directive 91/56/EEC. As such, it is required to draw up as soon as possible one or several plans relating to the matters set out in Article 7 thereof.

4 The Respondent has failed to draw up as soon as possible one or several plans pursuant to Article 7, and, as the Directive has direct effect on the Respondent as an emanation of the State, the Respondent is in breach of the provisions of said Article.

5 The Respondent is the competent authority with responsibility within the given zone of the functional area of the County of Wicklow, for planning, organisation, authorisation and supervision of the waste disposal operations pursuant to Council Directive 91/56/EEC, is obliged pursuant to Article 8 of the said Directive to take the necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or a disposal undertaking or disposes it himself in accordance with Article 4 of the said Directive.

6 The Respondent has failed to take the necessary measures required by Article 8 of the said Directive and is in breach of the provisions of the said Article.

7 Section 33(1) of the Waste Management Act 1996requires the Respondent to collect, or arrange for the collection of, household waste within the functional area of the County of Wicklow.

8 By County Manager's Order Reference number Env. ⁷⁰/₀₀ and dated the 27th January 2000 the Respondent purported to decide to cease its household refuse collection service with effect from close of business on Friday the 28th January 2000.

9 The said decision of the 27th January 2000 had the effect that, since the close of business on Friday the 28th January 2000, the Respondent has not collected or arranged for the collection of, household waste within its functional area.

10 The said decision amounted to an abdication of and a refusal to abide by the duty imposed by section 33(1)(a) of the Waste Management Act 1996and is breach of the said Act.

11 The said decision was predicated on alleged decisions of the elected members of the Respondent County Council on the 22nd November 1999, the 13th December 1999 and the 17th January 2000 but the said alleged decisions did not or could not authorise the breach of duty imposed by section 33(1)(a) of the Waste Management Act 1996.

12 In making the said decision, the Respondent took into account matters which were not relevant to the duty imposed by section 33(1)(a) and failed to have regard to...