Greenstar Ltd v Dublin City Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 21 December 2009
• Neutral Citation: [2009] IEHC 589
• Court: High Court
• Docket Number: [2008 No. 460 JR]
• Date: 21 December 2009

Greenstar Ltd v Dublin City Council & Ors

JUDICIAL REVIEW

Between:

GREENSTAR LIMITED

Applicant

-and-

DUBLIN CITY COUNCIL, DUN LAOGHAIRE/RATHDOWN COUNTY COUNCIL, FINAL COUNTY COUNCIL, AND SOUTH DUBLIN COUNTY COUNCIL

Respondents

[2009] IEHC 589

Rec. No.: 460 JR/2008

THE HIGH COURT

JUDICIAL REVIEW

Fair procedures

Oral hearing - Discretionary power- Statutory obligation to have consultation and written submissions - Whether oral hearing required - Duty to give reasons - Bias - Structural bias - Dual role as operator and regulator - Whether objective bias - Waste management Act 1996 (No 10), ss 22 & 23 - European Convention on Human Rights, art 6 - Certiorari granted (2008/460JR - McKechnie J - 21/12/2009) [2009] IEHC 589

Greenstar Ltd v Dublin City Council

Facts: The applicant was a company involved in waste management and was granted a waste collection permit by the respondent. The respondent authorities joined in making a Waste Management Plan (WMP) for the Dublin Region 2005-2011 pursuant to its statutory obligations under the Waste Management Acts 1996-2007. The issue arose as to the validity of the process proposed to make a Variation to the WMP. The proceedings were heard immediately after the conclusion of the hearing in Nurendale Ltd. t/a Panda Waste v. Dublin City Council (21 December, 2009). The material conclusions as to fact and law in that case were to apply to the present proceedings and the judgment related to three matters only arising. Greenstar sought to have the Court determine whether the failure of the respondent to hold an oral hearing breached fair procedures, whether the failure of the respondents to provide a report and legal and economic advice from a law firm breached fair procedures by not giving all of the reasons for the making of a variation and whether the respondents were both operators and regulators of a market giving rise to structural bias.

Held by McKechnie J. that in light of the judgment of the Court in Nurendale, the Court would hold that the failure to provide an oral hearing during the consultation process breached the constitutional rights of the applicant and breached their right to fair procedures. The respondents were not in breach of fair procedures by failing to provide the RPS report of the letter/ report of a law firm. It was clear what grounds the respondents were seeking to rely upon in varying the WMP. The fact that the respondents were both operators and regulators in the market for household waste coupled with the statutory requirements with regards to consultation in the variation process did not lead to a finding of objective bias. The conclusions were in addition to and without prejudice to the earlier findings of the Court in Nurendale which applied mutatis mutandis to the applicant here.

Reporter: E.F

NURENDALE LTD (T/A PANDA WASTE SERVICES) v DUBLIN CITY COUNCIL & ORS UNREP MCKECHNIE 21.12.2009 2009 IEHC 588

COMPETITION ACT 2002 S4

COMPETITION ACT 2002 S5

COMPETITION ACT 2002 S4(5)

TREATY OF ROME ART 10

TREATY OF ROME ART 81

TREATY OF ROME ART 82

TREATY OF ROME ART 86

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

WASTE MANAGEMENT ACT 1996 S34(1)(A)

WASTE MANAGEMENT (COLLECTION PERMIT) REGS 2001 SI 402/2001

WASTE MANAGEMENT (COLLECTION PERMIT) (AMDT) REGS 2001 SI 540/2001

WASTE MANAGEMENT (COLLECTION PERMIT) REGS 2007 SI 820/2007

WASTE MANAGEMENT ACT 1996 S22(5)

WASTE MANAGEMENT ACT 1996 S23

WASTE MANAGEMENT ACT 1996 S22

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

PRENDIVILLE & MURPHY v MEDICAL COUNCIL & ORS 2008 3 IR 122 2007/51/10911 2007 IEHC 427

J & E DAVY (T/A DAVY) v FINANCIAL SERVICES OMBUDSMAN & ORS 2008 2 ILRM 507 2008/30/6639 2008 IEHC 256

NORTH WALL PROPERTY HOLDING CO LTD & DUNNE v DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY UNREP FINLAY-GEOGHEGAN 9.10.2008 2008/46/10025 2008 IEHC 305

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

R (KATHRO & ORS) v RHONDDA CYNON TAFF COUNTY BOROUGH COUNCIL 2001 EWHC ADMIN 527 2002 ENV LR 15

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 873-887

CONNORS v UNITED KINGDOM 2005 40 EHRR 9 16 BHRC 639

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

TSFAYO v UNITED KINGDOM 2009 48 EHRR 18 2007 HLR 19

ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION 2007 4 IR 70 2006/3/487 2006 IEHC 201

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1998

Z (V) v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215 2003/49/12190

MOONEY v AN POST 1998 4 IR 288 1997/10/3360

GALVIN v CHIEF APPEALS OFFICER & MIN FOR SOCIAL WELFARE 1997 3 IR 240 1998/7/1929

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

BRYAN v UNITED KINGDOM 1996 21 EHRR 342

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

R (ALCONBURY DEVELOPMENTS LTD & ORS) v SECRETARY OF STATE FOR THE ENVIRONMENT 2001 UKHL 23 2003 2 AC 295 2001 2 WLR 1389 2001 2 AER 929

BEGUM v TOWER HAMLETS LONDON BOROUGH COUNCIL 2003 UKHL 5 2003 2 AC 430 2003 2 WLR 388 2003 1 AER 731

SWEENEY, STATE v MIN FOR ENVIRONMENT & LIMERICK CO COUNCIL 1979 ILRM 35 1979/2A/498

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE 1989 IR 149 1988/8/2385

P (F) & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

SPIN COMMUNICATIONS LTD v INDEPENDENT RADIO & TELEVISION CMSN 2001 4 IR 411 2002 1 ILRM 98 2001/23/6256

STEEPLES v DERBYSHIRE CO COUNCIL 1985 1 WLR 256 1984 3 AER 468

R (LEWIS) v REDCAR & CLEVELAND BOROUGH COUNCIL 2009 1 WLR 83 2008 EWCA CIV 746

WOOLF & ORS DE SMITHS JUDICIAL REVIEW 6ED 2007 530

1 Mr. Justice William M. McKechnie delivered on the 21st day of December 2009

2 1. This case, which was heard immediately after the conclusion of the hearing in Nurendale Ltd t/a Panda Waste v. Dublin City Council & ors. (Record No.: 2008/420 JR) (Judgment delivered on 21 ^st December 2009), is concerned with the same overall factual and legal situation as in that case. Accordingly I am satisfied that the material conclusions as to fact and law reached in Nurendale are equally applicable in this case and apply mutatis mutandis. Therefore the within judgment relates only to three matters not contended for in the related case.

3 2. For the sake of clarity I herewith confirm the following conclusions which apply equally to this case:

4 i) The respondents are undertakings for the purposes of the Competition Act 2002 ("CA 2002");

5 ii) Both ss. 4 and 5 CA 2002 are applicable to the actions of the respondents;

6 iii) The Variation is an agreement between undertakings or concerted practice within the meaning of s. 4 CA 2002;

7 iv) There is no objective justification which would save the Variation under s. 4(5) CA 2002;

8 v) The respondents have therefore breached s. 4 CA 2002;

9 vi) The respondents are dominant in each of their respective areas and collectively dominant in the greater Dublin area in the market for the collection of household waste;

10 vii) They have abused that position of dominance because the Variation:

11 a a. is an agreement or concerted practice in breach of s. 4 CA 2002, or

12 b b. would substantially influence the structure of the market to the detriment of competition, or

13 c c. would significantly strengthen the position of the respondents on the market.

14 viii) The Variation is not saved by virtue of any consideration of efficiencies or objective justification under s. 5 CA 2002;

15 ix) The Variation would not have an appreciable effect on inter State trade, thus Arts. 10, 81, 82, 86 of the EC Treaty are not applicable;

16 x) The Variation is ultra vires the powers granted under the Waste Management Act 1996 since it clearly goes beyond what could have been contemplated by the Oireachtas in seeking to re-monopolise the market for household waste collection;

17 xi) The Variation is vitiated by bias and prejudgment because of the statements of Mr. Twomey, and the partial nature of the reports relied upon to ground it;

18 xii) The Variation cannot be said to be unreasonable or irrational by the Keegan or O'Keefe standards;

19 xiii) The actions of the respondents gave rise to no legitimate expectation on the part of the applicant;

20 xiv) The Variation does not disproportionately interfere with the applicant's property rights or right to earn a livelihood.

21 3. The three issues which Greenstar seeks to have determined by this Court in addition to the above are:

22 i) Whether the failure of the respondents to hold an oral hearing breached fair procedures;

23 ii) Whether the failure of the respondents to provide the February 2008 RPS report and the legal and economic and competition advice from Phillip Lee and Company, breached fair procedures by in effect not giving all of the reasons for the making of the Variation in question; and,

24 iii) Whether the fact that the respondents were both operators and regulators of a market gives rise to structural bias.

Background

25 4. Before addressing these specific issues it is worthwhile setting out some of the background specific to this action. Greenstar, the applicant, is a company which is involved in all aspects of the waste management industry, including the collection, disposal, recovery and recycling of waste, both public and private, and commercial and residential. It was granted a Waste Collection Permit ("WCP") by the first-named respondent on 4 ^th November 2005. In or around October 2006, it began to formulate a strategic plan for its entry into the market for the collection of household waste from single dwelling households in the Dublin region. It commenced to implement this plan in August 2007, when it began advertising its entry...