Dublin City Council v Wright

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 21 January 2004
• Neutral Citation: [2004] IEHC 7
• Docket Number: [2003 No. 364 SS],364 2003
• Court: High Court
• Date: 21 January 2004

[2004] IEHC 7

THE HIGH COURT

364 2003

DUBLIN CITY COUNCIL v. WRIGHT

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 AND IN THE MATTER OF PROCEEDINGS BEFORE THE DUBLIN METROPOLITAN DISTRICT COURT

BETWEEN/

DUBLIN CITY COUNCIL

PLAINTIFF

AND

SAMUEL WRIGHT

DEFENDANT

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

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

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S3

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S5

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

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 2000 S2

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 2000 S3

WASTE MANAGEMENT ACT 1996 S33(1)(A)

WASTE MANAGEMENT ACT 1996 S2

EEC DIR 91/156 ART 15

WASTE MANAGEMENT ACT 1996 S5(1)

CO RECOMMENDATION 75/436/EURATOM PAR 4

CO RECOMMENDATION 75/436/EURATOM PAR 4(B)

CO RECOMMENDATION 75/436/EURATOM RECITAL

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

WASTE MANAGEMENT ACT 1996 S33(1)

WASTE MANAGEMENT ACT 1996 S22(6)(D)

WASTE MANAGEMENT ACT 1996 S5

Synopsis:

CASE STATED

Refuse collection

Recovery of sum due and owing - Sanitary Authority - Polluter pays principle - Whether the sanitary authority is entitled to impose a fixed charge for the provision of refuse collection service Waste Management Act, 1996 - Council Directive 91/156/EEC - Local Government (Financial Provisions) No. 2 Act, 1983 - Courts (Supplemental Provisions) Act, 1961 (2003/36SS - Quirke J - 21/1/2004) Dublin City Council v Wright - [2004] 1 IR 53 - [2004] 2 ILRM 310

Facts: A charge for the collection and disposal of household waste was made by the plaintiff on 12th January, 2001 by Resolution. The defendant was the occupier of a premises within the plaintiff's administrative area and accordingly received a wheeled bin from the plaintiff on a date not later than 18th May, 2001, which was the date upon which the first bills were issued by the plaintiff seeking payment in respect of the provision of a refuse collection service to the occupiers of the domestic premises within its administrative area. The charge for this service was a fixed charge and was unrelated to the weight or quantity of the waste. Furthermore the charge remained a fixed charge regardless of the quantity of waste placed in the bin by householders and regardless of whether or not the householders required collection on a regular weekly basis or only on an occasional infrequent basis. The defendant failed to pay for the provision of these domestic services despite numerous reminders sent to him by the plaintiff. Accordingly the plaintiff instituted proceedings against the defendant for the recovery of a sum, which it claimed was due and owing to it as sanitary authority for the area in which the defendant resided in respect of the collection and disposal of household waste arising from the defendant's premises. The defendant submitted that the sum claimed by the plaintiff represented a charge that was imposed by the plaintiff without regard to the "polluter pays" principle and was accordingly contrary to the provisions of the law of the European union and domestic law in this jurisdiction and was therefore invalid. Furthermore the defendant argued that the plaintiff had not adduced any evidence that a wheeled bin had been provided in respect of his premises and accordingly submitted that the charge did not apply to his premises and was not recoverable.

The learned District Judge held that prima facie the charge imposed by the plaintiff for the collection and disposal of household waste was lawful and enforceable, having regard to the provisions of the Local Government Financial Provisions (No. 2) Act, 1983 as amended. He found as a fact that the plaintiff had provided a service to the defendant pursuant to the provisions of Section 33(1) of the Waste Management Act, 1996 and prima facie, the plaintiff was entitled to impose a charge in respect of the provision of that service. This matter was referred to this court from the District Court by way of case stated pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961. In the case stated the learned District Judge asked the opinion of this court on two questions of law, namely: (1) Whether the Resolution made by the plaintiff on 12th January, 2001, imposing a fixed amount for the collection and disposal of household waste for the period to 31st December, 2001 offended the "polluter pays" principle so as to render it invalid under national or E.U. law? and (2) If the answer to question (1) was no, whether the defendant's said premises was a domestic premises to which the charge as actually imposed by the plaintiff for the period 31st December, 2001 applied?

Held by Quirke J in answering the first question in the negative and the second question in the affirmative:

1. That the imposition of the charge imposed by the plaintiff upon the defendant could not be deemed to have been made in breach of the express terms of Council Directive 91/156/EEC which simply provided that the cost of disposing of waste must be borne by particular holders and producers of waste. This Directive could not be construed as directly imposing upon local authorities such as the plaintiff an obligation to impose charges upon polluters which reflected the weight of the waste which was collected. Accordingly the charge imposed by the plaintiff upon the defendant in these proceedings was not a charge imposed unlawfully, having regard to the provisions of Council Directive 91/156/EEC.

2. That the provisions of the Local Government (Financial Provisions) (No. 2) Act, 1983 as amended enjoyed the presumption of constitutionality and were prima facie lawful and enforceable by and on behalf of the plaintiff. Those provisions, therefore, prima facie, empowered the plaintiff to impose a charge upon the defendant in respect of the services provided by the plaintiff under Section 33(1) of the 1996 Act.

3. That Section 22(6)(d) of the 1996 Act which required the plaintiff to make a waste management plan did not impose upon the plaintiff an obligation to calculate and impose charges which reflected the weight or quantity of waste collected (or the frequency of collection), in respect of services provided pursuant to the provisions of Section 33(1) of the 1996 Act.

4. That it was not necessary for the plaintiff, as a necessary proof in order to recover charges for waste disposal, to prove compliance with every statutory provision which regulated its activities. The resolution made by the plaintiff imposing a fixed amount for the collection and disposal of household waste was not invalid and did not offend either national or EU law.

That the fact that the defendant's premises was a domestic premises was not disputed. The District Judge found as a fact that a wheeled bin was delivered to the defendant's premises and the service was provided by the plaintiff for the benefit of the defendant. Accordingly, the charge as actually imposed by the plaintiff applied to the defendant's premises.

Reporter: L. O'S

1 Judgment of Mr. Justice Quirke delivered the 21st day of January, 2004 .

2 This is a case stated pursuant to s. 52 of the Courts (Supplemental Provisions) Act, 1961, submitted by District Judge William Early, upon two questions of law which have arisen in the course of proceedings before him at a sitting of the District Court at Court 53, Richmond Hospital, North Brunswick Street, Dublin 7.

3 The plaintiff, Dublin City Council, has instituted proceedings against the defendant for the recovery of the sum of €120.63 which it claims is due and owing in respect of the collection and disposal of household waste arising from the defendant's premises situate at 36 Dunsink Road, Finglas in the City of Dublin 11. The plaintiff claims the amount as the sanitary authority for the area in which the defendant resides.

4 In the case stated the learned District Judge asks the opinion of this Court on the two questions submitted, namely:

5 (1) Whether the Resolution made by the plaintiff on the 12 ^th January, 2001, imposing a fixed amount for the collection and disposal of household waste for the period to the 31 ^st December, 2001 offends the "polluter pays" principle so as to render it invalid under national or E.U. law? and

6 (2) If the answer to question (1) above is no, whether the defendant's said premises is a domestic premises to which the charge as actually imposed by the plaintiff for the period to the 31 ^stDecember, 2001 applies?

RELEVANT FACTS

7 1. A charge for the collection and disposal of household waste was made by the plaintiff on the 12 ^th January, 2001 by Resolution in the following terms:

"It is hereby resolved in accordance with sections 2, 3, 5 and 6 of the Local Government (Financial Provisions) No. 2 Act, 1983, section 2 and 3 of the Local Government (Financial Provisions) Act, 2000and the Dublin City Management (Reserved Functions) Order, 1986 and every other power us enabling we hereby determine and resolve:

1. that a charge for the collection and disposal of household waste within the Corporation's administrative area shall be made by Dublin City Council as follows:

For the period to the 31 ^st December, 2001 a charge of IR£95 in the case of domestic premises to which a wheeled bin is being provided and a charge of IR£65 in the case of domestic premises to which the provision of wheeled bins up to a capacity of 240 litres is, in the opinion of the Corporation, not practicable and thereafter, a charge of IR£95 per annum in the case of domestic premises to which a wheeled bin is provided and a charge of IR£65 per annum in the case of domestic premises to which the provision of wheeled bins up to a capacity of 240 litres is, in the opinion of the Corporation, not practicable.

The charges for the period to the 31 ^st December, 2001 shall...