Dublin City Council v Williams

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 29 January 2010
• Neutral Citation: [2010] IESC 7
• Court: Supreme Court
• Docket Number: [S.C. No. 253
• Date: 29 January 2010

Dublin City Council v Williams

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

AND IN THE MATTER OF THE LOCAL GOVERNMENT ACTS 1925 - 2000

AND IN THE MATTER OF PROCEEDING PURSUANT TO SECTION 6 OF THE LOCAL GOVERNMENT (FINANCIAL PROVISIONS) (NO. 2) ACT, 1983

BETWEEN/

DUBLIN CITY COUNCIL

Plaintiff/Respondent

and

GEORGE WILLIAMS

Defendant/Appellant

[2010] IESC 7

Denham J.

Hardiman J.

Geoghegan J

Record No. 253/06

THE SUPREME COURT

PLANNING AND ENVIRONMENTAL LAW

Waste management

Polluter pays principle - Waste charges - Waste management plan - Charges for waste disposal - Jurisdiction of District Court - Appropriate forum of litigation - Whether legality of local authority resolution to impose household waste charges can be considered by District Court in action for non-payment of such charges - Whether District Court appropriate forum to examine manner or proportionality of implementation of policy - Fettering of local authority discretion - Discretion of local authority to act unilaterally subject to legitimate expectation - Dublin City Council v Wright [2004] IEHC 62, [2004] 1 IR 53 considered; O'Reilly v Mackman [1983] 2 AC 237 not followed; O'Donnell v Corporation of Dun Laoghaire [1991] ILRM 301 and Rosborough v Cork City Council [2008] IEHC 94, [2008] 4 IR 572 approved; Athlone Urban District Council v Gavin [1985] I.R. 434 and Futura Immobiliare Srl Hotel Futura v Comune di Casoria (Case C-254/08), (Unrep, ECJ, 16/7/2009) distinguished; Rosborough v Cork City Council [2008] IEHC 94, [2008] 4 IR 572 approved - Local Government (Financial Provisions) (No 2) Act 1983 (No 21), ss 2 and 6 - Waste Management Act 1996 (No 10), ss 5, 22, and 33 - Council Directive 91/156/EEC - Council Recommendation 75/436/Euratom, ECSC, EEC - Question answered (253/2006 - SC - 29/1/2010) [2010] IESC 7

Dublin City Council v Williams

Facts: On a consultative case stated from the Circuit Court in an appeal from the District Court, the proceedings related to a charge levied by a local authority for services. The plaintiffs sought to recover from the defendant as occupier of certain premises a sum for the collection and disposal of household waste. The claim was opposed in the District Court and a full decree was granted. An appeal was lodged to the Circuit Court. The case was appealed to the Circuit Court where it was contended that the plaintiff council had prepared a waste management place pursuant to an EU directive and that the council was obliged to apply the "polluter pays" principle. It was contended by the council that there was no connection between the obligation to adopt and implement a waste management pan and the legality of charges imposed under legislation. The opinion of the Supreme Court was sought as to inter alia whether the Court below had jurisdiction to consider a challenge to the legality of a resolution made fixing charges for the collection and disposal of household waste under the provisions of s. 2 Local Government (Financial Provisions) (No. 2) Act 1983.

Held by the Supreme Court per Geoghegan J. that the parameters of the issues raised were not suited to their litigation in the District Court by way of defence to a simple claim for charges. The District Court and on appeal the Circuit Court would decline to accept such a defence as there were other more appropriate forums to litigate. The first question would be answered in the negative and it was inappropriate to attempt an answer to any of the other questions.

Reporter: E.F.

LOCAL GOVT (FINANCIAL PROVISIONS)(NO.2) ACT 1983 S6

LOCAL GOVT (FINANCIAL PROVISIONS)(NO.2) ACT 1983 S2

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 2000

WASTE MANAGEMENT ACT 1996 S22(6)

WASTE MANAGEMENT ACT 1996 S33

WASTE MANAGEMENT ACT 1996 S23(3)

WASTE MANAGEMENT ACT 1996 S5

O'REILLY v MACKMAN 1983 2 AC 327

O'DONNELL v CORPORATION OF DUNLAOGHAIRE 1991 ILRM 302

ROSBOROUGH v CORK CITY COUNCIL 2008 4 IR 572

FINGAL CO COUNCIL v LYNCH 1997 2 IR 569

ATHLONE URBAN DISTRICT COUNCIL v GAVIN 1985 1 IR 434

LOCAL GOVT (FINANCIAL PROVISIONS)(NO.2) ACT 1983 S2(1)

RSC O.84

FUTURA v IMMOBILIARE SR L HOTEL FUTURA & ORS v COMUNE DI CASORIA 2009 3CMLR 1519 C-254/08

DUBLIN CITY COUNCIL v WRIGHT 2004 1 IR 53 2004 2 ILRM 310 2004 13 3025

1 Mr. Justice Geoghegan delivered the 29th day of January 2010

2 Geoghegan J. [nem diss]

3 This is a consultative Case Stated sent forward to this court by the President of the Circuit Court, Deery J., in an appeal being heard by him in the Dublin Circuit Court from an order of the District Court (Judge Gibbons) made the 28 ^th May, 2004. The Case Stated is quite lengthy and contains matters which go beyond the established requirements. I propose, therefore, to summarise it and where necessary to quote relevant passages. It is explained in the Case Stated that the proceedings were brought in the District Court by Civil Summons under the provisions of section 6 of the Local Government (Financial Provisions) (No. 2) Act, 1983. That is a general section in the Local Government code which entitles a local authority to make a charge for any service which it provides. In this case, it is further explained that the council as plaintiffs sought to recover from the defendant as the occupier of certain premises in Crumlin in the city of Dublin the sum of €241.26 in respect of the collection and disposal of household waste from that premises. The claim was made up of two respective sums of €120.63 for the respective years ending 31 ^st December, 2001 and 31 ^st December, 2002. The claim was opposed in the District Court but a full decree was granted with some costs and witnesses expenses. An appeal was then lodged to the Circuit Court. The ground of defence was that the council had a Waste Management Plan prepared pursuant to an EU Directive and that that plan posed an obligation on the Council to apply the "polluter pays principle" and it was argued that that meant an incentive based charge on a pay by weight or volume related basis or some other way relating to use in accordance with that principle.

4 When the case came before the Circuit Court on appeal, it was argued on behalf of the council "that a Waste Management Plan is to be interpreted in the same way as a Development Plan, that is, in its ordinary meaning as it would be understood by the ordinary man in the street and a properly interpreted paragraph 13.13 envisages future waste management costs being borne in time by waste producers and that pay-by-weight or other proportionally based charges are intended to be phased in over time and could not have been intended to come into operation overnight." As a consequence, Mr. James Connolly, S.C. acting for the council contended that there was no connection between the obligation to adopt and implement a Waste Management Plan and the legality of charges imposed under Local Government legislation and their recoverability. According to the Case Stated, oral evidence was given by a senior executive officer in the revenue unit of the engineering department of the council and by an Assistant City Manager. The defendant himself also gave evidence. A transcript of that evidence has been sent forward to the court but in accordance with correct practice, I take the view that I should confine myself to findings by the learned President of the Circuit Court. However, it is appropriate that I take account of the actual documents annexed to the Case Stated, as it is clear from the general tenor that they were accepted as authentic by the judge.

5 One of those documents is the Waste Management Plan for the Dublin region adopted by Dublin City Council on the 7 ^th December, 1998. It deals with any number of matters besides the question of charging for pollution. However, it is important to note that at the very beginning of the document and under the heading "Foreword and Acknowledgments" the following sentence is included: "The Plan is firmly grounded in the Polluter Pays Principle in terms of costs recovery". The plan is a lengthy document but in the executive summary it is made clear that the policy is guided by a national waste policy management as dictated by the Waste Management Act, 1996 and associated regulations. It is also made clear that that legislation is in turn "firmly grounded" in EU Waste Management Policy guided by three principles, one of them being the "Polluter Pays Principle". The latter is explained as being "the costs of waste management are borne by those who generate the waste". It then lists the broad objectives of the plan which was in accordance with the Act and one of those principles as set out was

"to ensure in the context of Waste Disposal that regard is had to the need to give effect to the Polluter Pays Principle".

6 The words "regard is had to" are important in this context because it indicates that there is no hard and fast rule set down either in the domestic legislation or in the Directive as to how precisely the polluter pays principle is to be applied. Furthermore the method of application might be changed from time to time and it might be reasonable to suppose, as indeed it was strongly argued by the council that the full implementation would take time. These factors are highly relevant to this Case Stated as I will be explaining later.

7 I think it appropriate now to cite in full paragraphs 8 to 12 inclusive of the Case Stated. These paragraphs read as follows:

8 2 "8. The facts as found by me on this appeal are:

9 (a) On the 12 ^th January 2001 Dublin City Council by Resolution made a charge for the collection and disposal of household waste under the provisions of section 2 of the Local Government (Financial Provisions) (No. 2) Act, 1983 as amended by the Local Government (Financial...