High Court of Ireland Decisions

Dublin City Council v. Wright [2004] IEHC 7 (21 January 2004)

 


2003 364 $$

THE HIGH COURT 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

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

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.

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.

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

(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

(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^st December, 2001 applies?

RELEVANT FACTS

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, sections 2 and 3 of the Local Government (Financial Provisions) Act, 2000 and 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 be payable in two equal instalments on the 30^th day of June, 2001 and 30^th day of September, 2001 and thereafter the charges shall be payable on an annual basis in respect of the period January to December in any one year and shall be payable in two instalments on the 31^st day of March and 31^st day of July, provided that the charge for the provision of such service shall not be waived in accordance with the provisions of the Waiver of Charges Resolution provided that the City Council has not amended the charge by further resolution."

2. A total of 290,000 bins were delivered by the plaintiff to domestic premises within its administrative area and the plaintiff provides a refuse collection service to 160,000 domestic premises. The defendant is the occupier of a premises within the plaintiff's administrative area and has received a wheeled bin from the plaintiff on a date not later than the 18^th 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.

3. A bill in the amount of €120.63 was issued in respect of the defendant and delivered to him on the 18^th May, 2001 for the provision of domestic services up to the 31^st December, 2001 and thereafter a reminder was sent to him on the 31^st August, 2001, a demand on the 9^th November, 2001 and subsequently letters demanding payment were issued from the Law Agent of the defendant in February, 2002 and July, 2002 as the defendant had failed to pay the charge. The plaintiff then issued proceedings against the defendant in the District Court for the recovery of the sum due and owing.

4. At the hearing of the proceedings in the District Court, Mr. Jim Dowling, who is a Senior Executive Officer in the revenue unit of the plaintiff's engineering department, agreed in evidence that the charge for which payment was sought is a fixed charge and is unrelated to the weight or quantity of the waste. He agreed also that 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.

5. At the conclusion of evidence in the District Court, counsel on behalf of the defendant applied to the learned District Judge to dismiss the claim on the grounds that:

(1) the sum claimed by the plaintiff represented a charge which 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.

(2) that the plaintiff had not adduced evidence that a wheeled bin had been provided in respect of the defendant's premises on the 1st January, 2001 and accordingly the charge imposed for the year 2001 did not apply to the defendant's premises and was therefore not recoverable on behalf of the plaintiff.

6. The learned District Judge found the following to be facts adduced in evidence:

(a) that a wheeled bin was delivered to the defendant's premises within the period between October, 2000 and the 18^th May, 2001,

(b) that a charge was made by the plaintiff in the terms of the Resolution outlined above and was implemented in terms of appropriate delegation orders and

(c) that the defendant had not paid any charge in respect of the service provided.

THE LAW

Section 33 (1)(a) of the Waste Management Act, 1996 provides as follows:

"Each local authority shall collect, or arrange for the collection of, household waste within its functional area."

It is acknowledged between the parties that the plaintiff is the local authority for the purposes of this section which, accordingly, imposes upon the plaintiff a statutory obligation to collect waste or to arrange for its collection.

It is also acknowledged and agreed between the parties that this obligation is imposed upon the plaintiff in respect of the collection of waste from the defendant's premises.

Section 2 of the Waste Management Act, 1996 provides that:

"The purposes for which the provisions of this Act are enacted include the purposes of giving effect to the Community acts specified in the Table to this section."

The Table includes the following:

"Council Directive 91/156/EEC of 18 March, 1991 amending Directive 75/442/E.E.C. on waste."

Article 15 of Council Directive 91/156/EEC provides as follows:

"In accordance with the 'polluter pays' principle, the cost of disposing of waste must be borne by:

the holder who has waste handled by a waste collector or by an undertaking as referred to in Article 9, and/or

the previous holders or the producer of the product from which the waste came."

Section 5(1) of the Waste Management Act, 1996 defines the "polluter pays" principle in the following terms:

" 'the polluter pays principle' means the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March, 1975 regarding cost allocation and action by public authorities on environmental matters;"

Council Recommendation 75/436/Euratom recommends inter alia that Member States within the (then) European Community should apply the "polluter pays" principle defining a "polluter" as "someone who directly or indirectly damages the environment or who creates conditions leading to such damage".

At paragraph 4 thereof provides as follows:

"Under the 'polluter pays' principle, standards and charges, or a possible combination of the two, are the major instruments of action available to public authorities for the avoidance of pollution."

Paragraph 4(b) of the recommendation provides inter alia as follows:

"The purpose of charges shall be to encourage the polluter to take the necessary measures to reduce the pollution he is causing as cheaply as possible (incentive function) and/or to make him pay his share of the costs of collective measures, for example purification costs ( redistribution function). The charges should be applied, according to the extent of pollution emitted, on the basis of an appropriate administrative procedure.

Charges should be fixed so that primarily they fulfil their incentive function."

The Recital to the Recommendation referring to the "polluter pays" principle provides as follows:

"Whereas in order to facilitate application of the said principle, the European Communities and the Member States must define it more clearly by laying down procedures for its application, and by making provision for certain exceptions to be made to it such as may be made on grounds of difficulties encountered in its application and because of the interplay between other policies and the environmental protection policy;"

It is not in dispute that the plaintiff has been empowered pursuant to the provisions of s. 2(1) of the Local Government (Financial Provision) No. 2 Act, 1983 to charge for services of the kind contemplated by s. 33(1) of the Waste Management Act, 1996.

What is contended on behalf of the defendant is that the charge imposed upon the defendant by the plaintiff is ultra vires the plaintiff because it does not comply with the provisions of the Waste Management Act, 1996 and the provisions of Council Directive 91/156/EEC.

DECISION

Prima facie the charge imposed by the plaintiff for the collection and disposal of household waste is lawful and enforceable, having regard to the provisions of the Local Government Financial Provisions (No. 2) Act, 1983 as amended.

It has been found as a fact by the learned District Judge that the plaintiff has provided a service to the defendant pursuant to the provisions of s. 33(1) of the Waste Management Act, 1996 and, prima facie, the plaintiff is entitled to impose a charge in respect of the provision of that service.

QUESTION (1)

The defendant seeks to impugn the charge on the basis that the service provided by the plaintiff was a service which was provided in contravention of the provisions and principles of Community law and in particular Council Directive 91/156/EEC.

The defendant also argues that the charge has not been lawfully imposed because it has been imposed in respect of a service provided by the plaintiff which conflicts with the provisions of domestic law within this jurisdiction and, in particular, with the provisions of the Waste Management Act, 1996, which the defendant claims is domestic legislation which was intended to give effect to and implement particular provisions and principles of Community law.

(1) Council Directive 91/156/EEC.

The sole reference to the "polluter pays" principle within Directive 91/156/EEC is the passage cited above.

The Directive does not define what is meant by the principle and makes no reference to Council Recommendation 75/436/Euratom.

Insofar as the provisions of Directive 91/156/EEC may be directly applicable within this jurisdiction (and I express no particular view in respect of the direct applicability of any of the provisions thereof) the imposition of the charge imposed by the plaintiff upon the defendant cannot be deemed to have been made in breach of the express terms of the Directive which simply provide that the cost of disposing of waste must be borne by particular holders and producers of waste.

The Directive certainly cannot be construed as directly imposing upon local authorities such as the plaintiff an obligation to impose charges upon polluters which reflect the weight of the waste which is collected.

The Directive makes no mention of Recommendation 75/436/Euratom and does not expressly require incentive measures designed to encourage householders to reduce domestic waste.

In the circumstances I am satisfied that 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) Waste Management Act, 1996.

The defendant claims that the charge imposed by the plaintiff is unlawful and invalid because it is a charge imposed in respect of services rendered by the plaintiff to the defendant on foot of legislation which offends the provisions of Community law and its own stated objective.

It is important to note, at this point, that the provisions of the Local Government (Financial Provision) (No. 2) Act, 1983 as amended enjoying, as they do, the presumption of constitutionality, are, prima facie lawful and enforceable by and on behalf of the plaintiff. These provisions, therefore, prima facie empower the plaintiff to impose a charge upon the defendant in respect of the services provided by the plaintiff under s. 33(1) of the 1996 Act,.

The defendant claims that s. 33(1) of the 1996 Act must be construed as imposing upon the plaintiff an obligation to provide a service for which charges will be imposed on the basis of the "polluter pays" principle.

It is argued that:

(a) since s. 2 of the 1996 Act provides that the purposes for which the provisions of the Act were enacted include the purpose of giving effect to Directive 91/156/EEC and

(b) since s. 22(6)(d) of the 1996 Act requires the plaintiff to make a waste management plan containing ". . . such objectives as seem to the local authority or local authorities concerned to be reasonable and necessary . . . to ensure in the context of waste disposal that regard is had to the need to give effect to the polluter pays principle" and

(c) since s. 5 of the 1996 Act defines "the polluter pays principle" as ". . . the principle set out in Council Recommendation 75/436/Euratom . . ." and

(d) since Recommendation 75/436/Euratom provides at para. 4 that:

"Under the polluter pays principle, standards and charges or a possible combination of the two, are the major instruments of action available to public authorities for the avoidance of pollution . . .

(b) the purpose of charges shall be to encourage the polluter to take the necessary measures to reduce the pollution he is causing as cheaply as possible (incentive function) and/or to make him pay his share of the costs of collective measures, for example purification of costs (redistribution function). The charges should be applied, according the extent of pollution emitted, on the basis of an appropriate administrative procedure.

Charges should be fixed so that primarily they fulfil their incentive function." and

(e) since the charge imposed by the plaintiff on the defendant (i), is a fixed charge which is (ii) unrelated to the weight and quantity of the waste placed in the bins by householders and (iii) unrelated to the frequency of collection, the plaintiff is in breach of the obligation imposed upon it by s. 22 (6)(d) of the 1996 Act to make a plan containing objectives to ensure in the context of waste disposal, that regard is had to the need to give effect to the "polluter pays" principle. It is therefore contended that the charge imposed by the plaintiff for the provision of the service provided on foot of that plan is invalid and unlawful and may not be recovered from the defendant.

The duty imposed upon the plaintiff by s 22(6)(d) of the 1996 Act is to make a waste management plan containing "such objectives as seem to the local authority . . . concerned to be reasonable and necessary . . . to ensure in the context of waste disposal that regard is had to the need to give effect to the polluter pays principle".

It is clear from a perusal thereof that the section imposes an obligation upon local authorities to take various steps and follow various procedures (including the publication of a notice of intention to make a plan and an invitation to parties within functional areas to make written representations in relation to the plan within a specified period) and to include within the plan ". . . such objectives as seem to the local authority . . . to be reasonable and necessary . . . to ensure in the context of waste disposal that regard is had to the need to give effect to the polluter pays principle".

The Case stated in these proceedings indicates that evidence was adduced in the District Court detailing how, (i) pursuant to the provisions of s. 33(1) of the 1996 Act, domestic refuse was collected throughout the plaintiff's functional area during the year 2001 and (ii) charges for that service were imposed and collected.

The obligation which was imposed upon the plaintiff by s. 22(6)(d) of the 1996 Act was to make a waste management plan which contained such objectives as would seem to the plaintiff to be reasonable and necessary in order to have regard to the need to give effect to the appropriate principle.

The section does not impose upon the plaintiff an obligation to take specific measures of the kind contended for on behalf of the defendant. It does not impose upon the plaintiff an obligation to calculate and impose charges which reflect the weight or quantity of waste collected (or the frequency of collection), in respect of services provided pursuant to the provisions of s 33 (1) of the 1996 Act.

No evidence was adduced as to the contents of the plaintiff's waste management plan and as to any objectives contained therein.

No evidence has been adduced in this case indicating any failure on the part of the plaintiff to comply with the provisions of s. 22(6)(d) or any other provision within the 1996 Act.

It is 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 regulates its activities.

There is no evidence before this Court which would justify a finding that the plaintiff failed to make a waste management plan containing the objective envisaged by s. 22(6)(d) of the 1996 Act and this Court makes no such finding.

Since, as I have already indicated, the plaintiff was statutorily empowered to impose the charge which it has imposed upon the defendant in respect of the services provided by the plaintiff to the defendant pursuant to s. 33(1) of the 1996 Act, and since I have found no evidence of any breach by the plaintiff of Directive 91/156/EEC or of any of the provisions of the 1996 Act, it follows that 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, upon the defendant, is not invalid and does not offend either national or EU law in the manner contended for on behalf of the defendant.

It follows further that, in my opinion, the answer to Question (1) posed by the learned District Judge must be "No".

QUESTION (2)

It has been contended on behalf of the defendant that the plaintiff did not prove by way of evidence that a wheeled bin had been provided by the plaintiff to the defendant's premises on or before the 1^st January 2001 and that accordingly the charge which was imposed by the plaintiff in respect of the service provided up to the period ending 31^st December 2001 did not and does not apply.

The charge made for the collection and disposal of household waste from the defendant's premises was made pursuant to the provisions of the resolution made by the plaintiff on the 12^th January 2001 which inter alia provided as follows:

"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 … thereafter the charges shall be payable on an annual basis in respect of the period January to December in any one year …"

The charge of €120.63 represents the charge of IR£95 which was imposed pursuant to the provisions of that resolution and, as I have already indicated, the plaintiff was, and remains, empowered by the Local Government (Financial Provisions) (No 2) Act 1983 as amended to impose that charge in respect of the service which has been provided by the plaintiff for the benefit of the defendant.

The resolution which was lawfully passed by the plaintiff empowered the plaintiff to impose the charge "... for the period to the 31^st December 2001 …" and it provided further that "… thereafter the charges shall be payable on an annual basis in respect of the period January to December in any one year …"

The learned District Judge has found as a fact that the charge was made by the plaintiff in the terms of the resolution and was implemented in terms of appropriate delegation orders. The charge therefore was lawfully imposed in the terms of a lawful resolution which empowered the plaintiff to impose the charge

"… for the period to the 31^st December 2001".

The terms of the resolution clearly empowered the plaintiff to impose the charge provided that a wheeled bin was delivered to the defendant's domestic premises and the service provided "… for the period to the 31^st December 2001".

The fact that the defendant's premises is a domestic premises is not disputed. Furthermore, (a) the learned District Judge has found that a wheeled bin was in fact delivered by the plaintiff to those domestic premises between October 2000 and the 18^th May 2001. and (b) it is not disputed that the service was provided by the plaintiff for the benefit of the defendant for the period from the date of delivery up to and including the 31^st December 2001.

I am accordingly satisfied that the charge as actually imposed by the plaintiff for the period to the 31^st December 2001 applies to the defendant's premises and it follows that in my opinion the answer to Question No 2 posed by the learned District Judge must be "Yes".