Dunnes Stores v Revenue Commissioners and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 13 December 2011
• Neutral Citation: [2011] IEHC 469
• Court: High Court
• Date: 13 December 2011

[2011] IEHC 469

THE HIGH COURT

[No. 56 JR/2010]

Dunnes Stores v Revenue Commissioners & Ors

[2011] IEHC 469

BETWEEN

DUNNES STORES

APPLICANT

V.

THE REVENUE COMMISSIONERS, THE MINISTER FOR THE ENVIRONMENT HERITAGE AND LOCAL FOVERNMENT, IRELAND AND THE ATTORNEY GERNERAL

RESPONDENTS

WASTE MANAGEMENT ACT 1996 S72

WASTE MANAGEMENT(AMDT) ACT 2001 S9

WASTE MANAGEMENT ACT 1996 S72(5)(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

WASTE MANAGEMENT ACT 1996 S7(1)

WASTE MANAGEMENT ACT 1996 S29(3)

WASTE MANAGEMENT ACT 1996 S29(4)J

WASTE MANAGEMENT(AMDT) ACT 2001 S9(2)

WASTE MANAGEMENT (ENVIRONMENT) LEVY(PLASTIC BAG) REGS 2001 SI 605/2001 REG 3(1)

WASTE MANAGEMENT(ENVIRONMENT) LEVY(PLASTIC BAG)(AMDT)(NO2)REG 2007 SI 167/2007 REG 4

WASTE MANAGEMENT (ENVIRONMENT) LEVY(PLASTIC BAG) REGS 2001 SI 605/2001 ART 5

WASTE MANAGEMENT ACT 1996 S72(5)(B)

D B v MIN FOR HEALTH & CHILDREN 2003 3 IR 12

INSPECTOR OF TAXES v KIERNAN 1981 IR 117

DUNNES STORES v DIRECTOR OF CONSUMER AFFAIRS 2006 1 IR 355

RESTRICTIVE PRACTICES (GROCERIES) ORDER 1987 SI 142/1987

WASTE MANAGEMENT(AMDT) ACT 2001 S72(9)

INTERPRETATION ACT 2005

WASTE MANAGEMENT ACT 1996 S72(2)

INTERPRETATION ACT 2005 S19

WASTE MANAGEMENT(AMDT) ACT 2001 S72(1)

CORK CO COUNCIL v WHILOCK 1993 1 IR 231

DPP v CORCORAN 1995 2 IR 259

ROAD TRAFFIC (AMDT) ACT 1978 S13

TAXES CONSOLIDATION 1997

WASTE MANAGEMENT(AMDT) ACT 2001 S75(5)(B)2

WASTE MANAGEMENT (ENVIRONMENT) LEVY (PLASTIC BAG) (AMDT)(NO2) REGS 2007 SI 167/2007 3(1)

WASTE MANAGEMENT(AMDT) ACT 2001 S72(2)

WASTE MANAGEMENT(AMDT) ACT 2001 S72(1)

WASTE MANAGEMENT (ENVIRONMENT) LEVY (PLASTIC BAG)SI 605/2001 REGS 2001 SI 605/2001 REG 15

CONSTITUTION ART 15.2

CITYVIEW PRESS LTD v AN CHOMHAIRLE OILIUNA 1980 IR 381

MAHER v AG 1973 IR 140

ROAD TRAFFIC ACT 1968 S44(2)(A)

WASTE MANAGEMENT(AMDT) ACT 2001 S72(2)

WASTE MANAGEMENT(AMDT) ACT 2001 S72(6)

WASTE MANAGEMENT(AMDT) ACT 2001 S72(5)

WASTE MANAGEMENT(AMDT) ACT 2001 S9 72(5)B

TAXES CONSOLIDATION 1997 S954(5)

KEOGH v CRIMINAL ASSETS BUREAU 2004 2 IR 159

WASTE MANAGEMENT ACT 1996 S29(3)

WASTE MANAGEMENT ACT 1996 S7

WASTE MANAGEMENT (ENVIRONMENT) LEVY (PLASTIC BAG)SI 605/2001 REGS 2001 ART 5(A)

WASTE MANAGEMENT (ENVIRONMENT) LEVY (PLASTIC BAG)SI 605/2001 REGS 2001 ART 5(B)

WASTE MANAGEMENT (ENVIRONMENT) LEVY (PLASTIC BAG)SI 605/2001 REGS 2001 ART 5(C)

WASTE MANAGEMENT (ENVIRONMENT) LEVY (PLASTIC BAG)SI 605/2001 REGS 2001 ART 5(D)

WASTE MANAGEMENT (ENVIRONMENT) LEVY (PLASTIC BAG)SI 605/2001 REGS 2001 ART 5(E)

WASTE MANAGEMENT (ENVIRONMENT) LEVY (PLASTIC BAG)SI 605/2001 REGS 2001 REG(2)

CONSTITUTION ART 15.2.1

A v GOVERNOR OF ARBOUR HILL 2006 4 IR 88

MCDONALD v BORD NA GCON 1965 IR 217

CONSTITUTION ART 29.4

CONSTITUTION ART 29.4.6

WASTE MANAGEMENT ACT 1996 S2

EEC DIR 91/156 ART 4

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 6

FORTUNE v REVENUE COMMISSIONERS UNREP O'NEILL 23.1.2009 2009/22/5366 2009 IEHC 28

HOWARD v COMMISSIONERS OF PUBLIC WORKS (NO 1) 1994 1 IR 101

CRAIES ON STATUTE LAW 7ED SWEET & MAXWELL 1971 71

WASTE MANAGEMENT ACT 1996 S29(3)

J(T) v CRIMINAL ASSETS BUREAU UNREP GILLIGAN 1.5.2008 2008/30/6572 2008 IEHC 168

MENNOLLY HOMES v APPEAL COMMISSIONERS UNREP CHARLETON2 6.2.2010 2010/33/8385 2010 IEHC 49

CAHILL v SUTTON 1980 IR 269

A v GOVERNOR OF ARBOUR HILL 2006 4 IR 88

JOHN GRACE FRIED CHICKEN LTD & ORS v CATERING JOINT LABOUR COMMITTEE UNREP FEENEY 7.7.2011 2011 IEHC 277

REVENUE LAW

Statutory interpretation

Environmental levy - Plastic bag levy - Assessment - Fair procedures - Validity of legislation - Locus standi - Whether levy applied only to bags supplied at point of sale - Whether unlawful attempt to apply levy to bags supplied otherwise than at point of sale - Whether regulations invalid or unconstitutional - Whether breach of fair procedures or natural and constitutional justice - Whether ambiguity in provision - Whether impermissible delegation of legislative power - Whether breach of fair procedures by failing to provide basis of calculation of money due - Whether locus standi to challenge validity of provision - Howard v Commissioners of Public Work [1994] 1 IR 101; Fortune v Revenue Commissioners [2009] IEHC 28, (Unrep, Ó Néill J, 23/1/2009); Cahill v Sutton [1980] IR 269 and A v Governor of Arbour Hill [2006] IESC 45, [2006] 4 IR 88 followed; B(D) v Minister for Health and Children [2003] 3 IR 12; Inspector of Taxes v Kiernan [1981] IR 117; Dunnes Stores v Director of Consumer Affairs [2005] IEHC 242, [2006] 1 IR 355; Cork County Council v Whillock [1993] 1 IR 231; People (DPP) v Corcoran [1995] 2 IR 259; Cityview Press Ltd v An Chomhairle Oiliuna [1980] IR 381; Maher v Attorney General [1973] IR 140; Keogh v Criminal Assets Bureau [2004] IESC 32, [2004] 2 IR 159; McDonald v Bord nag Con [1965] IR 217; Cityview Press v Anco [1980] IR 381; J(T) v Criminal Assets Bureau [2008] IEHC 168, (Unrep, Gilligan J, 1/5/2008); Menolly Homes v Appeal Commissioners [2010] IEHC 49, (Unrep, Charleton J, 26/2/2010) and John Grace Fried Chicken Ltd v Catering Joint Labour Committee [2011] IEHC 277, (Unrep, Feeney J, 7/7/2011) considered - Waste Management Act 1996 (No 10), ss 2, 4, 7 and 72 - Waste Management (Amendment) Act 2001 (No 36), s 9 - European Convention on Human Rights Act 2003 (No 20), s 3 - Interpretation Act 2005 (No 23) - Taxes Consolidation Act 1997 (No 39), s 954(5) - Waste Management (Environmental Levy) (Plastic Bag) Regulations 2001 (SI 605/2001) - Waste Management (Environmental Levy) (Plastic Bag)(Amendment)(No 2) Regulations 2007 (SI 167/2007) - Restrictive Practices (Groceries) Order 1987 (SI 142/1987) - Constitution of Ireland, 1937, Arts 15.2 and 29.4 - European Convention on Human Rights, art 6 - Directive 91/156/EEC, art 4 - Reliefs refused (2010/56JR - Hedigan J - 13/12/2011) [2011] IEHC 469

Dunnes Stores v Revenue Commissioners

Facts: The applicant sought to challenge the validity of the so-called plastic bag levy. The applicant sought inter alia an order of certiorari quashing an assessment made by the first respondent of the environmental levy due under the Waste Management (Environmental Levy) (Plastic Bag) Regulations 2001 made pursuant to s. 72 Waste Management Act 1996. The applicant further sought a declaration that the levy could only apply to plastic bags suitable for use at points of sale and not for other forms of plastic bags used for hygiene or wrapping purposes. The applicant submitted that there had been an unlawful attempt to extend the plastic bag levy to bags which it was never intended to apply to and thereby collecting unlawful revenue from the applicant, amounting to a breach of fair procedures.

Held by Hedigan J. that the case of the applicant had taken no account of the detailed provisions of what was defined to be a bag exempted from the levy. There could be no benefit to have the Minister go through a formulaic process of nominating each class of outlet separately. The legal basis for the regulations was wider than that argued by the applicant. The question of what constituted fairness in the instant case had to take into account that the applicant was a large well-resourced and professionally advised body. There was nothing unfair about the procedures adopted. The reliefs sought would be refused.

Reporter: E.F.

1 Judgment of Mr. Justice Hedigan delivered the 13th of December 2011.

2 1. The applicant is an unlimited company carrying on business as a retailer of food, textiles and home wares. Its address is 46-50 South George's Street, Dublin 2. The first named respondent is a body charged with the collection of taxes and duties and its address is Dublin Castle, Dublin 2. The second named respondent is a Minister of the Government and has his address at Customs House, Dublin 1. The third named respondent is the Irish State. The fourth named respondent is sued as legal representative of the first and second named respondents and has her address at Government Buildings, Upper Merrion Street, Dublin 2.

3 2. The applicant seeks the following relief's:-

4 (1) An order of certiorari quashing (i) the assessment made by the first respondent of the environmental levy due by the applicant under the Waste Management (Environmental Levy) (Plastic Bag) Regulations, 2001 in respect of the accounting period from 1 ^st July 2004 to 30 ^th June 2005 as notified by a Notice of Assessment dated 12 ^th November 2009; (ii) the assessment made by the first respondent of the environmental levy due by the applicant under the Waste Management (Environmental Levy) (Plastic Bag) Regulations, 2001 in respect of the accounting period from 1 ^st July 2005 to 30 ^th June, 2006 as notified by a Notice of Assessment dated 12 ^th November 2009; (iii) the assessment made by the first respondent of the environmental levy due by the applicant under the Waste Management (Environmental Levy) (Plastic Bag) Regulations, 2001 in respect of the accounting period from 1 ^st July 2006 to 30 ^th June, 2007 as notified by a Notice of Assessment dated 12 ^th November 2009; (iv) the assessment made by the first respondent of the environmental levy due by the applicant under the Waste Management (Environmental Levy) (Plastic Bag) Regulations, 2001 in respect of the accounting period from 1 ^st July 2007 to 30 ^th June, 2008 as notified by a Notice of Assessment dated 12 ^th November 2009; (the "assessments")

5 (2) A declaration, by way of application for judicial review, that any levy which may lawfully be imposed pursuant to section 72 of the Waste Management Act 1996 (as inserted by section 9 of the Waste Management (Amendment) Act 2001) can apply only to plastic bags which are suitable for use by customers at the point of sale and which are supplied at the point of sale for the purposes of carrying ordinary groceries and...