Supreme Court of Ireland Decisions

1. On 31st July, 2000 the Supreme Court gave the applicant leave to apply by way of judicial review for an order of certiorari to bring up to be quashed the order of the Lord Mayor, Aldermen and Burgesses of the City of Cork (hereinafter referred to as the respondents) implementing what is described in the material before the Court as the sticker system for the collection of waste on the ground that the implementation by the respondents of that system is in breach of their mandatory duty under section 38 (later treated as s. 33) of the Waste Management Act, 1996 to provide and operate or to arrange for the provision and operation of facilities as may be necessary for the recovery and disposal of household waste arising in its functional area.

2. The application was refused by the High Court (Butler J.) on 15th September, 2000. The judgment note sets out the decision:

3. Against that refusal Con O’Connell, the applicant/appellant (hereinafter referred to as the applicant), has appealed.

4. In the application seeking judicial review the applicant described his grounds for seeking the

5. This action of the [respondents] which would mean large amounts of domestic refuse would remain uncollected, would create a hazard to the health of my wife and myself and other citizens. This measure would constitute an abrogation of the statutory obligations of the [respondents] as laid down in the Waste Management Act of 1996. In implementing this extreme measure the [respondents] who already have a remedy to pursue defaulters through the Civil Courts which they have exercised extensively, would be acting ultra vires. As explained I am not liable for the charges but the [respondents] are (sic) indeed anybody does not have the right to purposely create a health hazard to serve their own ends when a legal remedy is available to them. The measure would also interfere with the constitutional right to bodily integrity guaranteed to all citizens under Section 40 of the constitution.”

6. By affidavit sworn on 10th August, 2000 the applicant deposed:

7. While the Supreme Court order specified s. 38 of the Waste Management Act, 1996 at the High Court hearing and in this Court on appeal it was agreed that the matter would proceed as if s. 33 of the Waste Management Act, 1996 had been specified. The applicant presented oral and written submissions. The applicant submitted that the respondents have acted in breach of his constitutional right to bodily integrity, have acted unreasonably, ultra vires and abused their discretionary power, in deciding to leave refuse uncollected. He submitted that the respondents have an obligation to collect the waste, that they are not entitled to refuse to collect if there has been no sticker indicating that there has been payment. He accepted that people must pay the charges. He submitted that if they do not pay they may be sued for a debt - but that the respondents are not entitled to fail to collect the waste. The applicant further submitted that the respondents by not collecting the bins are in breach of a statutory

8. Counsel for the respondents, Mr. James Connolly, S.C., agreed that while the Supreme Court order specified s. 38 it seemed that s. 33 of the Waste Management Act, 1996 was the relevant section. Written and oral submissions were made on behalf of the respondents.

9. Counsel for the respondents submitted that the applicant did not have the requisite standing to challenge the sticker system. Counsel made submissions in relation to s. 33 of the Waste Management Act, 1996, s. 42(4) of the Local Government Act, 1994 and The Cork Corporation (Presentation of Waste in Wheel Bins) Bye-Laws, 2000. It was submitted that the applicant was incorrect in alleging that the learned trial judge misdirected himself in law in declaring that the respondents were not acting ultra vires and/or that the learned trial judge was effectively contending that the bye-laws of the local authority took precedence over an Act of the Oireachtas or a right guaranteed under the Constitution. No such contention was made. It was submitted that the applicant is incorrect in contending that the learned trial judge was mistaken in declaring that the action of the Corporation in introducing a sticker system was not causing a serious and ongoing health hazard. It was submitted that the learned trial judge found as a matter of fact that there was no evidence of a serious and ongoing health hazard. It was further submitted that in no way could the actions taken by Cork Corporation be described as unreasonable. It was submitted that the applicant’s application is misconceived.

10. Section 33 of the Waste Management Act, 1996 provides:

11. The Cork Corporation (Presentation of Waste in Wheel Bins) Bye-Laws 2000 provide:

12. There were two aspects to this appeal. The first related to the applicant’s locus standi. The High Court determined that the applicant had locus standi . This was not contested seriously by the respondents. I am satisfied that the decision of the High Court should be upheld.

13. Secondly, there was a substantive issue for decision. While the matter of a submitted health hazard was referred to by the applicant, the High Court judge found that there was no health hazard. No ground has been submitted upon which I would interfere with this determination. Reference was made also to an alleged breach of constitutional rights. The High Court held that there was no evidence upon which it could be determined that there had been a breach of a constitutional right of the applicant. It had been pleaded that there had been a breach of bodily integrity. No ground has been submitted on this appeal upon which I would interfere with the High Court’s determination on this matter.

14. The primary matter raised on this appeal was as to the entitlement of the respondents to refuse to collect wheelie bins when a certain sticker (a receipt) was not attached. The respondents have a duty to collect household waste The word ‘shall’ in s. 33(1)(a) of the Waste Management Act, 1996 makes this clear. However, in certain circumstances this duty does not apply. The duty is not absolute. S. 33(3) of the Waste Management Act, 1996 sets out conditions whereby the local authority is not under an obligation to collect waste. These include a situation where an adequate waste collection service is available, the estimated costs of the collection of the waste by the local authority would (in the opinion of the authority) be unreasonably high, or that the local authority is satisfied that adequate arrangements for the disposal of the waste concerned can reasonably be made by the holder of the waste. S. 33(3) was not submitted as being relevant to this case. Apart from the conditions in s. 33(3) of the Waste Management Act, 1996 a local authority is under no duty to collect waste from any person if any provision of bye-laws under s. 35 regarding the presentation of waste are not complied with: s. 33(6) of the Waste Management Act, 1996.

15. A local authority, for the purpose of the proper management of waste or the prevention or control of environmental pollution, may make bye-laws requiring a holder of household waste to present waste in accordance with Part IV of the Act or in the manner specified in the bye-laws: s. 35, Waste Management Act, 1996. In addition, it is clear that the wording of

16. Consequently the Cork Corporation (Presentation of Waste in Wheel Bins) Bye-Laws, 2000, the bye-laws in issue, do not implement principles and policies laid out solely in the Waste Management Act, 1996. Other statutes lay foundations for the bye-laws. This is specifically stated in s. 35(3) of the Waste Management Act, 1996 when reference is made to s. 37(4) ofthe Local Government Act, 1994. Thus the policy underpinning the bye-laws is to be found in both such Acts.

17. The opening words of s. 37(4) of the Local Government Act, 1994:

18. Thus bye-laws under the Waste Management Act, 1996 s. 35(1) may, without prejudice to the generality of subsection 37(4) of the Local Government Act, 1994, include the matters set out in s. 35(3)(a) to (h). Those latter provisions relate to specific matters of presentation of the waste and the nature of the receptacles, etc. However, they do not prejudice the generality of s. 35(1) of the Waste Management Act, 1996 or of s. 37(4) of the Local Government Act, 1994. Thus the bye-laws can and do reflect specific matters relating to presentation etc. as specifically empowered by s. 35(3) of the Waste Management Act, 1996, but also matters such as a charge as specifically empowered by s. 37(4)(h) of the Local Government Act, 1994. In addition, as is empowered by the generality of s. 35(1) of the Waste Management Act, 1996 and s. 37(4) of the Local Government Act, 1994, the local authority has the power to make bye-laws including such provisions as the local authority considers appropriate for its effective application, operation and generally to achieve the purposes for which it is made - the policy of the Acts.

19. The local authority has a duty to collect the household waste. However, the local authority has no duty to collect if any provisions of bye-laws under s. 35 regarding the presentation of the waste are not complied with. While s. 35 provides for the making of bye-laws as to the presentation of waste, a bye-law under s. 35(1) shall be made in accordance with and construed as if it was made under Part VII of the Local Government Act, 1994. Further the bye-laws under s. 35(1) of the Waste Management Act, 1996 may without prejudice to the generality of that section or s. 37(4) of the Local Government Act, 1994 include specific matters relating to receptacles etc. set out in s. 35(3)(a) to (h). The generality of the right to make bye-laws in light of the duty as to waste management is broad as is reflected in the words of s. 35(3)(h) being “any matters consequential on, or incidental to, the foregoing”.

20. The matter of a charge is specifically referred to in s. 37(4)(h) of the Local Government Act, 1994 and consequently a bye-law may be made implementing a charge. Non-payment is a matter within the generality of the powers given to the respondents. The duty to collect of the respondents may be set aside if there are minor infringements of presentation by the householders, wheelie bins may not be collected by the respondents for the very simple reasons set out in s. 35(3)(a) to (h) e.g. the colour, construction or maintenance of the waste receptacle. Equally, it is clearly within the effective operation of the policies that a charge being provided for there may be operational consequences if it is not paid.

21. The Acts clearly state the policy for the collection of waste from house holders. The respondents had a statutory authority to make bye-laws in relation to the operation and management of the service, the collection of household waste, which they have done. They relate to the express matters stated in the two Acts referred to and to the proper management of waste and to its“. . . effective . . . operation and enforcement . . .” (s.37(4) of the Local Government Act, 1994) to achieve the purpose of the legislation.

22. The respondents have power to introduce charges. This was not disputed by the applicant. It was within the proper management of the service, the effective operation and enforcement of the legislation, to establish a sticker system such as described herein. Consequently the implementation by the respondents of a sticker system (as at issue in this case on these facts) is not in breach of the respondents’ duty under s. 33 the Waste Management Act, 1996. The respondents were not acting ultra vires the Waste Management Act, 1996 and the Local Government Act, 1994. The bye-laws in relation to presentation, charges and the consequences of non-collection for non-payment are intra vires the policies of the Acts. The respondents were not in breach of their statutory duty nor did they use discretionary power for an improper purpose. Nor did they act unreasonably, in bad faith or beyond their powers.

23. This analysis of the system is consistent with the policy and the law on waste management which is largely sourced in the European Union and developed therefrom in Irish Legislation. It is the proper management of waste, where the polluter pays. Council Directive of 15 July, 1975 on waste (75/442/EEC) and Council Directive 91/156/EEC of 18 March, 1991 taken together form the Waste Framework Directive. This directive taken with Council Resolution of May 7, 1990 [1990] O.J. C122/2 were the basis for development of waste law in Ireland, more particularly the Waste Management Act, 1996 and Statutory Instruments relating thereto.

24. The person presenting the waste must do so in accordance with the bye-laws. The bye-laws require a ‘receipt’ on the wheel bin. If a person does not pay or has no waiver they have no receipt. In such a situation under the bye-laws the waste need not be collected. Such bye-laws are not ultra vires the powers of the local authority, the respondents. Nor is it a failure or refusal of the respondents to discharge their statutory duty. The respondents have not contravened the Waste Management Act, 1996, rather they are operating it, in accordance with law which includes the Local Government Act, 1994. The respondents’ decisions have been intra vires the Acts and bye-laws.

25. The applicant has standing to bring this application for judicial review.

26. For the reasons stated I am of the opinion that the respondents are entitled to make bye-laws in accordance with the principles and policies set out in the Waste Management Act, 1996 and the Local Government Act, 1994. These include the right of the respondents to make bye-laws implementing charges and consequential effects if charges are not paid.

27. For the reasons stated I am satisfied that the respondents were not acting ultra vires by refusing to collect wheelie bins upon which there was no payment receipt or waiver. Such a bye-law is in accordance with the principles and policies of the relevant statues. I would not grant an order of judicial review by way of certiorari to quash the order of the respondents implementing the sticker system for the collection of waste. The implementation by the respondents of that system is not in breach of their duty under s. 33 of the Waste Management Act, 1996 to provide and operate or to arrange for the provisions and operation of facilities as may be necessary for the recovery and disposal of household waste arising in its functional area, when read, as it must, with the powers of the local authorities under s. 37 of the Local Government Act, 1994. The Respondents have a statutory duty to provide a service - the collection of household waste. However, the duty is not absolute. The duty is governed by the statutes, and the bye-laws made within the principles and policies of the statutes. It is within the principles and policies to require payment for the service and to withdraw the service if payment is not made. The fact that other actions or proceedings may be taken by the respondents does not exclude the remedy of withdrawing the service as permitted under the bye-laws.

28. I would dismiss the appeal.

29. The applicant is an alderman in Cork Corporation and he campaigned against the introduction of charges for refuse collection in Cork City. The corporation, however, voted to introduce such charges and the appellant fully accepts that position. However, with a view to recovery of the charges, Cork Corporation introduced in the appellant's own area a tagging system for " wheelie bins " which would, effectively, record whether charges had been paid or not and there would be no refuse collection from householders who had not paid. There are criteria for exempting a householder from having to pay the charges and the appellant himself has been exempted. Nevertheless, he sought in these proceedings to have the decision to adopt the tagging system judicially reviewed on the grounds that in introducing such a system Cork Corporation was acting ultra vires the Waste Management Act, 1996 and additionally or alternatively was interfering with the applicant's constitutional right to bodily integrity by reason of the nuisance and health hazard which uncollected refuse would cause.

30. The appellant was originally refused leave for judicial review by the High Court but on appeal to this court (Keane C.J., Murphy J. and

31. McGuinness J.) such leave was granted but confined to seeking an order of certiorari " bringing up to be quashed the order of the respondents implementing what is described in the material before the court as the sticker system for the collection of waste on the ground that the implementation by the respondents of that system is in breach of their mandatory duty under section 38 of the Waste Management Act, 1996 to provide and operate or arrange for the provision and operation of such facilities as may be necessary for the recovery and disposal of household waste arising within its functional area."

32. Pursuant to such leave the application was then heard by the High Court (Butler J.). In its statement of opposition the respondent raised, as a preliminary objection, the appellant's locus standi to challenge the "sticker system" , having regard in particular to the waiver in his favour of refuse charges and also having regard to his membership of the corporation thereby entitling him to participate in the making of bye-laws on foot of which the " sticker system" was introduced. There were fourteen other substantive grounds of opposition, but it is not necessary to detail them here. Essentially, the respondent was disputing that it was in any way in breach of the Waste Management Act, 1996 by operating the sticker or tagging system. It was further disputing that the sticker system did or could create a health hazard and it denied any interference with the constitutional right to bodily integrity.

33. When the application came to be heard by Butler J. it clearly emerged in the course of argument that although the Supreme Court order had referred to section 38 of the Waste Management Act, 1996 that section was, for the most part, relevant only to waste management, and that the section most relevant to household waste collection was section 33. It was agreed that no point would be taken on this and the High Court, primarily, based its decision on the terms of section 33 of the 1996 Act.

34. The learned High Court judge decided the case against the appellant on substantive grounds indicating that for the purposes of his judgment he was treating the appellant as having locus standi .

35. There does not appear to have been any cross-appeal in relation to the locus standi issue though admittedly, one could argue that there was technically no decision on it by the learned High Court judge. At any rate, I would be quite satisfied that the appellant, at all material times, had locus standi . In the first place he was an Alderman of Cork Corporation with a public interest in ensuring that the corporation was not acting unlawfully. But quite apart from his membership of the corporation he lived in the area in which this system of collection was operated and, therefore, any potential nuisance or health hazard arising from uncollected refuse as a consequence of non-payment by neighbours would have affected him. In my view, therefore, on both of those grounds he had locus standi.

36. I would not be satisfied that an interference with the constitutional right to bodily integrity has been established but this was not a ground for judicial review permitted by the order of this court. The Court is, therefore, only concerned with the question of whether the " sticker system" is intra vires , or in other words whether the respondent is exempt from collecting or arranging for collection of household waste in the absence of the appropriate sticker.

37. The relevant bye-law in this connection is bye-law number 21 of the Cork Corporation ( Presentation of Waste in Wheelie Bins) Bye-Law 2000 and reads as follows:-

38. In paragraph 21 of the affidavit of Jeremiah T. Moynihan, acting Assistant City Manager of Cork Corporation, sworn the 30th of August, 2000, the deponent swears as follows:-

39. Bye-law 22 contains the general obligation to pay for the refuse collection and bye-law 23 purports to provide that the obligation of Cork Corporation to collect and dispose of any waste permitted to be presented for collection and disposal under the bye-laws from any person is conditional upon inter alia compliance by that person with the provisions of the bye-laws.

40. The respondent's case is that those bye-laws are made under section 35 and that they provide for the sticker system. This argument can only be well founded if the bye-law providing for the sticker system can be considered as a bye-law " regarding the presentation of the waste for collection" . In a strictly literal sense it undoubtedly is because unless the appropriate tag indicating payment is attached to the wheelie bin when it is presented, the bye-law is breached whereupon as the argument runs, the obligation to collect such household waste no longer exists. But in my view, this is clearly to distort the intended meaning of the expression " regarding the presentation of the waste for collection" . In modern times waste collection, even from households, has become in many parts of the world and in many parts of Ireland highly sophisticated. It is no longer necessarily a case of putting out the waste in any kind of container and in any kind of manner. A particular type of wheelie bin may be required and there may also be requirements for separating particular types of waste, perhaps by the use of different coloured containers. This is what is clearly envisaged by the expression " the presentation of the waste" . I am borne out in this view by the provisions of section 35(3) of the 1996 Act. That subsection provides for the making of bye-laws which could include a number of specified provisions. While admittedly the last of these reads " any matters consequential on, or incidental to the foregoing" , it is clear that that must be interpreted in an eiusdem generis sense. The specified matters read as follows:-

41. It is obvious that each of these requirements relates to presentation and, in my view, that was what was clearly contemplated by the use of the word " presentation" in section 33. It was never intended that the power to make bye-laws, the breach of which would exempt the corporation could include a so-called presentation type bye-law the substantive purpose of which was to facilitate the collection of charges. Failure to comply with the sticker system therefore does not exempt the corporation from its general obligation under section 33(1)(a). This does not mean, of course, that the householder is not obliged to make the required payment. But if he defaults, the ordinary debt collection remedies are available to the defendant.

42. I would allow the appeal, and I would substitute for the order of the High Court an order granting, by way of judicial review, an order of certiorari bringing up to be quashed the decision and order of the respondents implementing what is described in the material before this court as the " sticker system" for the collection of waste.