Mr Binman Ltd v Limerick City Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne,Mr. Justice Gilligan
• Judgment Date: 21 September 2007
• Neutral Citation: [2007] IEHC 469
• Court: High Court
• Docket Number: [Record No. 22JR/2005],[2007 No. 440 JR]
• Date: 21 September 2007

[2005] IEHC 192

THE HIGH COURT

[Record No. 22JR/2005]

MR BINMAN LTD v LIMERICK CITY COUNCIL

JUDICIAL REVIEW

BETWEEN

MR. BINMAN LIMITED

APPLICANT

AND

LIMERICK CITY COUNCIL

RESPONDENT

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001

COMPETITION ACT 2002 S4

COMPETITION ACT 2002 S5

WASTE MANAGEMENT ACT 1996 S33

WASTE MANAGEMENT ACT 1996 S33(1)(a)

WASTE MANAGEMENT ACT 1996 S33(5)

PROTECTION OF THE ENVIRONMENT ACT 2003 S52

WASTE MANAGEMENT ACT 1996 S74

WASTE MANAGEMENT ACT 1996 S75(1)

WASTE MANAGEMENT ACT 1996 S75(3)

WASTE MANAGEMENT ACT 1996 S75(4)

AMBULANZ GLOCKNER v LANDKREIS FUDWESTPSALZ 2002 4 CMLR 726

TALBOT (IRELAND) LTD v ATGWU (EX-TEMPORE) UNREP SUPREME 30.4.1981

JAMES MCMAHON LTD v DUNNE 1965 99 ILTR 45

TREATY OF ROME ART 90(1)

TREATY OF ROME ART 86

Waste management

Judicial review - Waste collection - Contracts entered into between applicant and customers for waste collection - Waiver scheme for low income households - Tender for provision of waste collection service to low income households - Whether new contract entered into by respondent on foot of tender would involve applicant's existing customers breaching their contract - Whether exclusive contract being granted for low income households was anti-competitive in nature -Whether tender process can be quashed byway of judicial review if respondent has committed the tort of inducement of breach of contract or by introducing a procedure which was anti-competitive in nature -Application refused (2005/22JR - Dunne - 15/6/2005) [2005] IEHC 192

MR BINMAN LTD v LIMERICK CITY COUNCIL

Facts: the respondent sought tenders from waste disposal companies for the collection of refuse from low income households and awarded the contract to a competitor of the applicant’s. Previously, the respondent had operated a system whereby the applicant and other such companies invoiced the respondent directly in respect of refuse collection from low income households, who had a choice as to which company were to collect their refuse, and were paid by the respondent for them. The applicant contended that the new scheme introduced by the respondent was anti-competitive and induced its existing customers to breach their contracts with the applicant. The respondent argued that there was an objective justification for introducing the new scheme, namely that the respondent was not entitled to pay a third party for a waiver scheme by virtue of section 75 of the Waste Management Act 1996.

Held by Dunne J in refusing the relief sought that the basis upon which the previous scheme operated was in breach of section 75 of the Act of 1996 and in those circumstances the respondent was obliged to introduce the new scheme complained of by the applicant and accordingly there was an objective justification for the respondent’s actions, irrespective of whether they induced breaches of contract by low income households with the applicant. That whilst there was an element of exclusivity in that one contractor only would provide the service, as long as the service was provided on behalf of the respondent in accordance with the provision of section 33 and 75 of the Act of 1996, there was no breach of sections 4 or 5 of the Competition Act 2002.

Reporter: P.C.

1 JUDGMENT delivered by Ms. Justice Dunne on the 15th day of June, 2005

2 The applicant is a limited liability company carrying on business of waste collection and is the holder of a waste collection permit (Regulations 2001). It operates in the area of the respondent among others. In these proceedings the applicant seeks judicial review in the following terms.

3 i I. Certiorari by way of an application for judicial review in respect of the decision dated 22nd December, 2004 of the respondent to seek tenders from waste collection companies, including the applicant, for the provision of a household waste collection service to low income households in the respondent's functional area.

4 ii II. If necessary certiorari by way of an application for judicial review in respect of the decision of the respondent to enter into a contract arising from the tender process commenced on 22nd December, 2004 with a company for the provision of a household waste collection service to low income households within the respondent's functional area.

5 iii III. If necessary, a declaration that any contract entered into by the respondent with any waste collection company for the provision of the aforementioned service is prohibited and void by virtue of the provisions of ss. 4 and/or 5 of the Competition Act, 2002.

6 iv IV. An injunction by way of an application for judicial review restraining the respondent from entering into any contract with any waste collection company for the provision of the aforementioned service pursuant to the process commenced on 22nd December, 2004.

7 v V. If necessary an injunction by way of an application for judicial review restraining the respondent, its servants or agents from contacting any of the applicant's customers who heretofore have availed of the respondent's waiver scheme in respect of waste charges with a view to inducing those customers to breach their contracts with the applicant in respect of the collection of their household waste and/or in the alternative representing to any of the applicant's customers that the respondent will only provide waivers or partial waivers if those customers avail of the waste collection service of a particular waste collection company.

8 As can be seen the decision of the respondent made on 22nd December, 2004 to seek tenders from waste collection companies, including the applicant, for the collection of household waste from low income households in the respondent's functional area is at the heart of these proceedings.

Background

9 Up to 2000, the respondent herein was responsible for the collection of household waste within its functional area. That service was privatised and since then the applicant herein has provided that service, along with other waste collection permit holders in the respondent's functional area. At the present time, the applicant has some 17,000 customers who have contracts for six or twelve month periods at a time, making the applicant the largest permit holder operating in the respondent's functional area.

10 When the new waste collection service was introduced a waiver scheme was also introduced for low income households. Certain households were entitled to a full or partial waiver in respect of the waste collection charge. It should be noted at this point that the applicant has a contract with the householder and charges the householder directly. In the case of low income households, the applicant identified those households in accordance with criteria set out by the respondent, invoiced the respondent directly for either the full or partial amount appropriate to the householder having regard to the waiver scheme and was paid accordingly by the respondent for the waste collection service.

11 A decision of 22nd December, 2004 to put out to tender a waste collection contract in respect of the low income households marks an intention to bring an end to the waiver scheme as it previously operated.

12 The respondent had been concerned by the operation of the waiver scheme for some time and in 2003, correspondence was exchanged between the applicant and the respondent in that regard. The correspondence referred to the then current practice, namely that a person qualified for a subsidy, then made a decision as to which permit holder would provide the service. In its letter of 3rd October, 2003, the respondent went on to invite submissions from the applicant and others and stated that on receipt of submissions it would then select the permit holder who would thereafter provide the service to low income householders. In other words, there would be no choice in the matter for the householder. As stated there was an exchange of correspondence resting with the letter from the applicant's solicitor dated 31st October, 2003. Thereafter nothing was heard until 25th November, 2004 when the respondent by letter of that date indicated that the respondent's waiver scheme was to be discontinued. A reference was made in that letter to the belief of the respondent that it did not have the legal authority to operate the waiver scheme.

The Law

13 It would be useful at this stage to refer to s. 33 of the Waste Management Act, 1996. Section 33(1)(a) each local authority shall collect, or arrange for the collection of, household waste within its functional area.

14 Section 33(5) a local authority may enter into arrangements with one or more other local authorities, or with one or more other persons, for the collection on its behalf by the said authority or authorities or, as the case may be, by the said person or persons of waste in its functional area or in a part or parts of that area. The Protection of the Environment Act, 2003 amended certain provisions of the Waste Management Act, 1996:-

15 Section 52. The following section is inserted after s. 74 of the Act of 1996: Section 75(1) a local authority may make a charge in respect of the provision of any waste service by, or on behalf of, that authority. Section 75(3) a local authority may, if it is satisfied that it is appropriate so to do on grounds of personal hardship, waive all or portion of a charge made by it under subs. (1). Section 75(4) where a charge (or portion thereof) is waived under subs. (3), the liability of the person to pay that charge (or portion thereof) and any obligation on the local authority by whom the waiver was made to collect the charge (or portion thereof) shall seek.

The applicant's submissions

16 There are two points made in the submissions on behalf of the applicant. The first point made is that any new contract entered...