East Wicklow Conservation Community v Wicklow County Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [1994 No. 343 J.R.; S.C. No. 93 of 1995]
• Court: Supreme Court

High Court

Supreme Court

[1994 No. 343 J.R.; S.C. No. 93 of 1995]

East Wicklow Conservation Community v. Wicklow County Council

The East Wicklow Conservation Community Limited, Applicant

and

Wicklow County Council and Blaise Treacy

Respondents

Cases mentioned in this report:—

Bloomer v. Incorporated Law Society of Ireland [1995] 3 I.R. 14.

Bradley v. Meath County Council [1991] I.L.R.M. 179.

State (McLoughlin) v. Eastern Health Board [1986] I.R. 416.

Local government - Sanitary authority - Relationship between elected representatives and county manager - New landfill waste disposal site required as a matter of urgency - County manager selecting location for landfill site - Elected members passing resolution directing county manager to investigate other locations - Whether resolution relating to works which sanitary authority had statutory duty to carry out - Whether resolution ultra vires - Public Health (Ireland) Act, 1878 (41 & 42 Vict., c. 52), ss. 52 and 55 - City and County Management (Amendment) Act, 1955 (No. 12), ss. 2 & 3 - European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349) - Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86).

Judicial review - Decision - Whether conditional decision susceptible to judicial review.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Costello J., infra.

On the 29th August, 1994, the High Court (Barr J.) gave leave to the applicant to apply for certiorari by way of judicial review in respect of the refusal by the second respondent to comply with the resolution of the elected members of the first respondent made on the 18th July, 1994, in connection with a proposal to locate and provide a waste disposal site at Ballynagran in County Wicklow on the grounds that the second respondent's refusal and decision was made in excess of his jurisdiction and powers and constituted a breach of the City and County Management (Amendment) Act, 1955.

Notice of opposition and a replying affidavit were filed on behalf of both respondents on the 15th November, 1994.

The application was heard by the High Court (Costello J.) on the 18th November, 1994.

The applicant appealed the judgment and order of the High Court by notice of appeal dated the 27th February, 1995. Written submissions were filed on behalf of the applicant on the 10th July, 1996. Written submissions were filed on behalf of the respondents on the 22nd July, 1996.

The appeal was heard by the Supreme Court (Hamilton C.J., Blayney and Murphy JJ.) on the 22nd October, 1996.

By s. 2, sub-s. 7 of the City and County Management (Amendment) Act, 1955,"shall" inform the members of a local authority before any works (other than works of maintenance or repair) of the local authority are undertaken, or before committing the local authority to any expenditure in connection with proposed works (other than works of maintenance and repair).

Section 3 provides that, save where the local authority is required to carry out works under statute or by order of a court, it may by resolution direct the county manager not to proceed with works of which it has been informed under section 2.

Section 53 of the Public Health (Ireland) Act, 1878, empowers local authoritiesinter alia, to collect domestic waste.

Section 55 of the Public Health (Ireland) Act, 1878, provides that the local authority, once it has removed such waste, is obliged to provide suitable sites for the deposit and storage of such waste.

In September, 1992, the respondents engaged a firm of consulting engineers to prepare an environmental impact statement and preliminary report for a proposed waste disposal facility to service the north east Wicklow area. Having considered a number of sites, the consultants concluded that, subject to a process of public consultation, the preparation of an environmental impact statement and ministerial approval for the project, the site should be located in an area of north Wicklow known as Ballynagran.

A meeting of the elected members of the first respondent held on the 18th July, 1994, passed a resolution rejecting the consultants' proposals and directing that other areas be investigated as suitable locations for the proposed site. The second respondent, the County Manager, indicated that the decision whether or not to proceed with the proposed landfill site at the proposed or any other location was solely a matter for him in the exercise of his executive functions and that he considered the resolution of the 18th July to be ultra vires the Council and of no legal effect.

Local residents who were concerned at the proposed development formed a limited liability company, the East Wicklow Conservation Community Ltd. (the applicant in the proceedings), and instituted judicial review proceedings to quash what was claimed to be the "decision" of the second respondent to ignore the resolution of the elected members of the Council.

It was argued on behalf of both respondents that:—

• (a) The carrying out of a survey of possible sites for the proposed development and the preparation of an environmental impact statement in anticipation thereof could not constitute "works" within the meaning of s. 2, sub-s. 7 of the City and County Management (Amendment) Act, 1955. Accordingly, the second respondent was not obliged to inform the elected members of the Council in respect of these matters and therefore s. 3 of the Act could have no application to the situation.

• (b) There was no obligation on the respondents to give any information pursuant to s. 2, sub-s. 7 regarding the works carried out on the site in question because the works in question were not works which could yet properly be carried out by the respondents. Before they could properly undertake works as envisaged by the subsection it would be necessary to prepare an environmental impact statement and obtain the approval of the Minister for the Environment. Accordingly, it was submitted, any information given by the respondents in relation to the project was not given pursuant to s. 2, sub-s. 7 and therefore the provisions of s. 3 could have no application to the circumstances of the instant case.

• (c) The respondents were under a statutory duty to provide suitable sites for the deposit and storage of waste and accordingly, a direction under s. 3 could not be given in respect of such works.

• (d) The respondents had not actually made any final decision to carry out works at the site in question and thus the court was being asked to quash a non-existent decision.

The applicant contended that while the Council might have a statutory duty to provide a fit place for the disposal of waste material, it was under no statutory duty to provide it at the site proposed.

At the hearing of the action, Costello J. refused, as too late, an application by the respondents to amend their grounds of opposition to include an argument that the resolution of the 18th July, 1994, should be treated as a nullity on grounds of unreasonableness.

Held by Costello J. in refusing the relief sought, 1, that the second respondent in accepting and proceeding to act upon the consultants' report had made a decision - albeit a conditional one - which was capable of being reviewed by the courts.

2. That the proposed development of the site constituted "works" within the meaning of the subsection.

3. That the communication to the first respondent of the proposal to undertake these works if certain conditions were complied with amounted to "information" given in pursuance of s. 2, sub-s. 7. Accordingly, s. 3 of the Act, which allows the first respondent to pass a resolution giving directions, would apply unless the second respondent could bring himself within the exempting provisions of that section.

4. That in the light of these conclusions it was unnecessary to decide whether or not the initial survey of sites, or the preparation of an environmental impact statement constituted "works" within the meaning of the subsection.

5. That although the Council did not have a statutory duty to remove house refuse, it did have a statutory duty (pursuant to s. 55 of the Act of 1878) to provide a fit place to deposit any refuse which it had collected. The proposal for Ballynagran involved the provision of a fit place, pursuant to the Council's statutory duty, and accordingly any resolution of the elected members directing the County Manager not to proceed with the works was ultra vires and need not be complied with.

Bradley v. Meath County Council [1991] I.L.R.M. 179 applied.

Held by the Supreme Court (Hamilton C.J., Blayney and Murphy JJ.) in dismissing the applicant's appeal, 1, that as found by the High Court, there was an urgent need for a new landfill site. Under s. 55 of the Act of 1878, the Council had a duty to provide a fit place for this purpose. Fulfilment of this duty required firstly, a decision on a place suitable for the purposes of a landfill waste disposal site, and secondly, the carrying out of works necessary to make the site in question a fit place for such purpose.

2. That while s. 55 did not expressly require that the Council provide a landfill site at the proposed site, it necessarily required the Council to choose where it would put the landfill site. The choice of the proposed site was made with the authority of section 55. Once that choice had been made, the works had to be done, notwithstanding that the obligation to provide a fit place for the disposal of waste material could be...