Supreme Court of Ireland Decisions

Judgment Title: Dublin City Council -v- Williams

Neutral Citation: [2010] IESC 7

Supreme Court Record Number: 253/06

Circuit Court Record Number: Case Stated

Date of Delivery: 29/01/2010

Court: Supreme Court

Denham J.
Hardiman J.
Geoghegan J


IN THE MATTER OF SECTION 16 OF

THE COURTS OF JUSTICE ACT, 1947

AND IN THE MATTER OF THE LOCAL

GOVERNMENT ACTS 1925-2000

AND IN THE MATTER OF PROCEEDING

PURSUANT TO SECTION 6 OF THE LOCAL

GOVERNMENT (FINANCIAL PROVISIONS)

(NO. 2) ACT, 1983





BETWEEN/

DUBLIN CITY COUNCIL

JUDGMENT of Mr. Justice Geoghegan delivered the 29th day of January 2010

This is a consultative Case Stated sent forward to this court by the President of the Circuit Court, Deery J., in an appeal being heard by him in the Dublin Circuit Court from an order of the District Court (Judge Gibbons) made the 28th May, 2004. The Case Stated is quite lengthy and contains matters which go beyond the established requirements. I propose, therefore, to summarise it and where necessary to quote relevant passages. It is explained in the Case Stated that the proceedings were brought in the District Court by Civil Summons under the provisions of section 6 of the Local Government (Financial Provisions) (No. 2) Act, 1983. That is a general section in the Local Government code which entitles a local authority to make a charge for any service which it provides. In this case, it is further explained that the council as plaintiffs sought to recover from the defendant as the occupier of certain premises in Crumlin in the city of Dublin the sum of €241.26 in respect of the collection and disposal of household waste from that premises. The claim was made up of two respective sums of €120.63 for the respective years ending 31st December, 2001 and 31st December, 2002. The claim was opposed in the District Court but a full decree was granted with some costs and witnesses expenses. An appeal was then lodged to the Circuit Court. The ground of defence was that the council had a Waste Management Plan prepared pursuant to an EU Directive and that that plan posed an obligation on the Council to apply the “polluter pays principle” and it was argued that that meant an incentive based charge on a pay by weight or volume related basis or some other way relating to use in accordance with that principle.

When the case came before the Circuit Court on appeal, it was argued on behalf of the council “that a Waste Management Plan is to be interpreted in the same way as a Development Plan, that is, in its ordinary meaning as it would be understood by the ordinary man in the street and a properly interpreted paragraph 13.13 envisages future waste management costs being borne in time by waste producers and that pay-by-weight or other proportionally based charges are intended to be phased in over time and could not have been intended to come into operation overnight.” As a consequence, Mr. James Connolly, S.C. acting for the council contended that there was no connection between the obligation to adopt and implement a Waste Management Plan and the legality of charges imposed under Local Government legislation and their recoverability. According to the Case Stated, oral evidence was given by a senior executive officer in the revenue unit of the engineering department of the council and by an Assistant City Manager. The defendant himself also gave evidence. A transcript of that evidence has been sent forward to the court but in accordance with correct practice, I take the view that I should confine myself to findings by the learned President of the Circuit Court. However, it is appropriate that I take account of the actual documents annexed to the Case Stated, as it is clear from the general tenor that they were accepted as authentic by the judge.

One of those documents is the Waste Management Plan for the Dublin region adopted by Dublin City Council on the 7th December, 1998. It deals with any number of matters besides the question of charging for pollution. However, it is important to note that at the very beginning of the document and under the heading “Foreword and Acknowledgments” the following sentence is included: “The Plan is firmly grounded in the Polluter Pays Principle in terms of costs recovery”. The plan is a lengthy document but in the executive summary it is made clear that the policy is guided by a national waste policy management as dictated by the Waste Management Act, 1996 and associated regulations. It is also made clear that that legislation is in turn “firmly grounded” in EU Waste Management Policy guided by three principles, one of them being the “Polluter Pays Principle”. The latter is explained as being “the costs of waste management are borne by those who generate the waste”. It then lists the broad objectives of the plan which was in accordance with the Act and one of those principles as set out was


“to ensure in the context of Waste Disposal that regard is had to the need to give effect to the Polluter Pays Principle”.

The words “regard is had to” are important in this context because it indicates that there is no hard and fast rule set down either in the domestic legislation or in the Directive as to how precisely the polluter pays principle is to be applied. Furthermore the method of application might be changed from time to time and it might be reasonable to suppose, as indeed it was strongly argued by the council that the full implementation would take time. These factors are highly relevant to this Case Stated as I will be explaining later.

I think it appropriate now to cite in full paragraphs 8 to 12 inclusive of the Case Stated. These paragraphs read as follows:


“8. The facts as found by me on this appeal are:
(a) On the 12th January 2001 Dublin City Council by Resolution made a charge for the collection and disposal of household waste under the provisions of section 2 of the Local Government (Financial Provisions) (No. 2) Act, 1983 as amended by the Local Government (Financial Provisions) Act, 2000 as follows: A charge of £95.00 (being €120.63) per annum in respect of domestic premises to which a 240 litre wheeled bin is being provided and a charge in the sum of £65.00 (being €82.63) was made in respect of domestic premises to which the provision of such wheeled bin is impracticable.

The Resolution provides that the charge for the period to the 31st December 2001 is to be in two equal instalments payable on the 30th June 2001 and on the 30th December 2001 and thereafter the charge is payable on an annual basis in 2 equal instalments on the 31st March and 31st July.

(b) Dublin City Council provides a waste collection and disposal service to domestic premises within its administrative area. Grey wheeled bin deliveries were commenced in the Crumlin area in or about the 12th March 2001.

(c) The defendant is the owner and occupier of the domestic premises at 13, Rutland Grove, Crumlin, Dublin 12. The said premises is situate within the administrative area of Dublin City Council.

(d) Dublin City Council provided a wheeled bin to the Defendant’s premises at 13 Rutland Grove, Crumlin, Dublin 12 in or about the 12th March 2001. The Defendant presented his wheeled bin for collection by Dublin City Council every two to three weeks in the period following delivery of the wheeled bin up to the 31st December 2001 and in the period between 1st January 2002 and the 31st December 2002.

(e) Dublin City Council issued Demands to the Defendant in respect of the charges and letters from the Law Agent.

(f) The Defendant failed to pay the charge of €120.63 or any part thereof for the period up to the 31st December 2001 and also failed to pay the charge of €120.63 or any part thereof for the period from the 1st January 2002 to the 31st December 2003.

(g) The charge levied by the Plaintiff for the collection of household waste in respect of the periods 12th January – 31st December 2001 and 1st January – 31st December 2002 was a fixed charge, which did not vary depending on the volume of waste produced or the frequency with which the householder required collection.

9. At the conclusion of the evidence, legal argument was made by Mr. O’Higgins that the charge made by the Plaintiff was made without regard to the Waste Management Plan which by virtue of section 22(6) of the Waste Management Act, 1996 must contain an objective to ensure in the context of waste disposal that regard is had to give effect to the ‘polluter pays principle’. The “polluter pays principle” is referred to in various parts of the Plan and in particular, under the heading ‘Paying for Waste Management’ on page 11 of the Plan it is stated:

“It is a policy objective of this plan that charges shall be levied on waste producers which include both household and industrial and commercial enterprises. Such charges may be related to the waste volumes or weights produced which would provide incentives for minimalisation and recycling.”

The Plan states in paragraph 13.13:

“Under present conditions, the industrial and commercial sectors contribute to the cost of waste management through gate fees at local authority landfills in the region. However, the implementation of new waste management objectives as outlined in this plan will place an increased cost burden on the local authorities. The costs of future waste management in the Dublin Region shall be borne by the waste producers by the introduction of use related charges on a consistent basis across the Region on industry, commercial organizations and on households.”
Mr. O’Higgins contends that having set out the policy objective, the Plaintiff was statutorily obliged to specify the measures or arrangements to be taken with a view to securing the objective. In support of his argument Mr. O’Higgins submits that the Plaintiff is not empowered to provide a service under the Waste Management Act 1996 other than a service in accordance with its Waste Management Plan and that the power under the Local Government (Financial Provisions (No. 2) Act 1983 enabling a local authority to make a charge for the provision of a service can only be exercised in respect of the provision of a service which the local authority is empowered to provide. In these circumstances, the Defendant argues that the Wright decision has no bearing on the issue arising in this case as it is contended by the Defendant that the charge is invalid as it is a measure adopted without regard to the ‘polluter pays principle’ and which does not conform with the provisions of the Waste Management Plan or the Waste Management Act 1996. In these circumstances, the Defendant argues that the Wright decision has no bearing on the issue as the case heard by Mr. Justice Quirke involved a District Court decision where there had been no evidence as to the contents of the Waste Management Plan. It is contended that the charge is invalid as it is a measure adopted without regard to the ‘polluter pays principle’ as defined in Irish law and because it does not conform with the provisions of the Waste Management Plan or the Waste Management Act 1996.

10. In reply, Mr. Murray observed that the Defendant was seeking to mount a judicial review type challenge to the validity of the imposition of the charge in a debt collection case. He pointed to what he described as two critical flaws in the Defendant’s argument in relation to the operation of the waste management plan and the implication of the ‘polluter pays principle’. He submits firstly that there is no basis for making the power to charge as provided for in Section 2 of the 1983 Act for services provided under Section 33 of the Waste Management Act 1996 in any way contingent on what is said or not said in the Waste Management Plan. He contends that Section 2 of the 1983 Act is a self-contained provision insofar as it provides a power to charge for the provision of a service and that Section 33 of the 1996 Act is also self-contained in that it empowers the local authority to provide a waste collection service. He argues that the Defendant is seeking to deduce from the provisions of the Waste Management Plan a condition on the Plaintiff’s powers to charge, which could have been provided by the Oireachtas but was not.

Secondly, he argues that a waste management plan is not a legal document but rather a document containing a set of principles and as such is not an appropriate mechanism by which to impose the type of condition contended for by the Defendant on the power to charge. The passage at page 11 of the Waste Management Plan is permissive in its terms and, though paragraph 13.13 is framed in mandatory terms, it is directed to the future without identifying any particular date that charges will be calibrated in any particular way. The legal arguments are fully set out in the Transcript in Appendix 5.


11. Having considered the submissions of Counsel for both parties and the significance of the issues raised, I accepted the Plaintiff’s request that a case be stated to the Supreme Court for its determination on terms that the Defendant’s costs of such case stated and the District Court appeal be born by the Plaintiff with a certificate for 2 Senior Counsel on the case stated and I reserve my decision on the proceedings herein pending the determination of the Case Stated.

12. The opinion of the Supreme Court is sought on the following questions of law:

(1) Whether I have jurisdiction to consider the Defendant’s challenge to the legality of the Resolution made by the Plaintiff on the 12th January 2001 fixing charges for the collection and disposal of household waste under the provisions of Section 2 of the Local Government (Financial Provisions) (No. 2) Act, 1983 as amended in the defence of these proceedings?

(2) Whether the power to make a charge for the collection and disposal of household waste in accordance with provisions of the Local Government (Financial Provisions) (No. 2) Act 1983 as amended by the Local Government (Financial Provisions) Act 2000 is subject to an contingent upon the provisions of the Waste Management Plan for the Dublin Region, adopted pursuant to the provisions of Section 22 of the Waste Management Act, 1996?

(3) Whether on the 12th January 2001 the provisions of the Waste Management Plan for the Dublin Region made under Section 22(3) of the Waste Management Act, 1996 in respect of waste management charges imposed an immediate and imperative obligation on the Plaintiff to make a ‘pay by weight’ or volume related charge for the collection and disposal of household waste within its administrative area?

(4) Whether during the period between 1st January 2001 – 31st December 2002 the Plaintiff Council was obliged in relation to any charge imposed by it, for the provisions of household waste collection services under s. 33 of the Waste Management Act, 1996, to comply with the objectives set in the Waste Management Plan for the Dublin Region made under section 22(3) of the 1996 Act in relation to the polluter pays principle, by establishing a ‘pay by weight’ or volume or other use related charge for the collection and disposal of household waste within its administrative area?

(5) Whether the charge made by the Plaintiff on the 12th January 2001 imposing a fixed amount for the collection and disposal of household waste offends the ‘polluter pays principle’ as defined in Section 5 of the Waste Management Act 1996 so as to render it unlawful?

(6) Whether in the context of the Waste Management Plan for the Dublin Region the charge made by the Plaintiff on the 12th January 2001 imposing a fixed charge for the collection and disposal of household waste was invalid as it was a fixed charge without variation by weight, volume or other use related system and so offends the ‘polluter pays principle’ as defined in section 5 of the Waste Management Act, 1996 so as to render it unlawful?”

It is not in controversy that a wheeled bin service was provided, that a charge was made albeit a fixed charge in relation to a particular type of collection that in that connection an estimate was made as to the average number of bags per bin. I am mentioning this, not in the context of the merits of the case which can only be properly considered by this court if the court answers the first question in the Case Stated in the affirmative, but in the context of the issues and arguments relevant to that first question. They indicate the parameters of the case being made by the defendant and, in my view, clearly demonstrate that the issues in controversy are wholly inappropriate to be dealt with in the District Court by way of defence to a simple claim for the charges. In expressing this view, I am not in any way suggesting that these matters cannot be litigated in some other forum nor am I suggesting that they could only be litigated by way of judicial review. I accept that the exclusivity principle lay down by the House of Lords in O’Reilly v. Mackman 2 AC 237 does not apply in this jurisdiction. This is quite clear from the well respected judgment of Costello J. in the High Court in O’Donnell v. Corporation of Dún Laoghaire [1991] ILRM 302. I fully accept that a person with locus standi might be entitled to litigate the issue of whether “the polluter pays principle” is not being lawfully implemented, by a declaratory action just as much as by a judicial review. I do not accept, however, that such an issue may properly be raised in the District Court by way of defence to a claim for a civil debt of a public nature albeit recoverable as a simply contract debt.

The court has been referred to Rosborough v. Cork City Council [2008] 4 IR 572. That was a case relating to waste management but the issues were different. The first question that arose in that case was whether the action for the charges was an action in contract. The waste collection arrangements had been changed and the plaintiff claimed that this was in breach of contract. His argument was based on the provision that the charges are recoverable as a simple contract debt and was rejected by Clarke J. in that case. The judge pointed out that the mere fact that a sum of money is recoverable by statute as a simple contract debt does not mean the liability is a contractual liability or in other words that there was a contract with the public body. His views are neatly encapsulated in paragraph 29 of the judgment at page 582. It reads as follows:

“On the other hand, statutory bodies charged with carrying out statutory functions (including those for such bodies are entitled to charge for services provided) will normally be required to keep the manner in which those functions are carried out under review and are precluded, as a matter of public law, from fettering their discretion as to how they might exercise any genuine statutory discretion as to how they might carry out their functions in the future. That is not to say that there may not be circumstances where, at least within certain limits, a statutory body may be precluded from altering its policy or, perhaps, so doing without notice. It is at least possible that a statutory body may, for example, so conduct itself as to give rise to a legitimate expectation that a particular practice will not alter without reasonable notice (see for example Glenkerrin Homes v. Dún Laoghaire Rathdown County Council [2007] IEHC 298 (unreported High Court, Clarke J. 26th April 2007). However the benchmark by reference to which the actions of a public authority in such circumstances is to be judged is that of public law involving principles such as those embodied in the doctrine of legitimate expectation. Such public bodies can change policy and, subject to any legitimate expectations which may have been created, can ordinarily do so unilaterally.”
Clarke J. goes on to review the case law supporting this point of view including indeed a decision of my own in the High Court in Fingal County Council v. Lynch [1997] 2 IR 569. I entirely agree with the analysis of Clarke J. The consequence of that is that I am of the view that the first question in the Case Stated must be answered in the negative. That being so the other questions cannot properly arise for determination by this court.

Since there is no clear legally defined process by which the “polluter pays principle” is to be implemented there is no defence to the action to recover the charges for the service once those charges were in fact the charges fixed by the County Manager under the general Local Government code. I do not go so far as to suggest that the County Manager’s order could never be relevant by way of defence to claims for charges of this kind. If, for instance, the claim was for a sum that did not comply with the order, that would be an obvious example. But even if the County Manager’s order was patently ultra vires a relevant statute in some instances that might also be a proper defence though it is not necessary to decide the issue. That might also be the position if there was a clear error on the face of the manager’s order. Finally, I would accept on the authority of cases that have been put before this court and indeed on general principles that the position could be quite different in a criminal prosecution. In that instance there is no alternative procedure available to the accused and justice may dictate that he can raise a defence that would not be open to him if he was faced merely with a civil claim.

In opposition to the view which I am expressing, Mr. Hogan, S.C. acting for the defendant and appellant in the District Court appeal, relies primarily on two cases. One is Athlone Urban District Council v. Gavin [1985] 1 I.R. 434. That was a case in which the relevant County Manager purported to make an order that a charge of £60.00 be levied on every domestic dwelling in the Athlone Urban District for water, sewerage and refuse services for the year 1983. There was no breakdown of the figure to indicate how much of the charge was for each of the three services. Because of this, the defendant refused to pay the charge and proceedings were instituted against him in the District Court where a decree for the amount was made against him. He appealed to the Circuit Court and the Circuit Court judge stated a case for the determination of this court as to (a) whether the order was invalid because it failed to fix separate amounts in respect of each service and (b) whether the order was invalid by reason of the fact that it purported to fix a charge for the calendar year 1983 although the Act had not come into force until the 12th July, 1983. It was held by the Supreme Court (Finlay C.J., Henchy, Griffin, Hederman and McCarthy JJ.), in deciding that the order of the County Manager was invalid by reason of its failure to specify the amount assessed in respect of each service

(1) that the power of a local authority conferred by section 2(1) of the Act of 1983 to make a charge for a service did not apply to the making of a charge for the provision of water, since that service was one for which, apart from that section, the authority could make a charge without statutory limit,

(2) that section 2(1) of the 1983 Act conferred a power to make a charge for a single service and could not be interpreted as allowing a local authority to fix a single charge for a number of services,

(3) that the power to make a charge for the provision of water is a separate and distinct statutory power and could not be lawfully exercised by the making of a charge of an aggregate amount for the number of services, including water,

(4) that the court would not go behind the written order of the County Manager and would not supply any want of deficiency in it by having regard to evidence of the process of discussion or agreement between officers of the authority which led to the making of the order,

(5) that the order of the County Manager was invalid by reason of its failure to specify a separate charge for each of the services provided and accordingly, that the defendant was entitled to a dismiss of the entire of the plaintiff’s claim.

Mr. Hogan fairly concedes that no argument was made to the court, as is made in this case, to the effect that this was not a defence which could properly be raised in a claim for the charge in the District Court and also that the case precedes the judicial review proceedings regulated by Order 84 of the Rules of the Superior Court with its attendant safeguards. In my view, independently of these concessions, the case is wholly different from this case. Indeed, I see no reason why, if that case had been brought now. the Supreme Court could not have made the decision which it did make. There was no power under statute to make the composite charge and sue for it. That was a clear error on the face of the proceedings which in my view it would be open to a defendant to raise. To put it another way, there was no uncertainty as to its illegality. In my opinion, it is not an authority which can be relied on by the defendant in this case.

The second case relied on was a decision of the European Court of Justice, namely Futura Immobiliare sr L Hotel Futura and Others v. Comune di Casoria ECJ case C-254/08. In order to demonstrate the irrelevance of that case, I find it necessary only to quote the final ruling of the Second Chamber. It reads as follows:


“Article 15(a) of Directive 2006/12/EC of the European Parliament and of the Council of 5th April 2006 on waste must, as Community Law currently stands, be interpreted as not including national legislation which, for the purposes of financing an urban waste management and disposal service, provides for a tax or charge calculated on the basis of an estimate of the volume of waste generated by users of that service and not on the basis of the quantity of waste which they had actually produced and presented for collection.

It is, however, incumbent upon the national court to review, on the basis of the matters of fact and law place before it, whether the tax for the disposal of private solid urban waste has issued in the main proceedings results in the allocation to certain ‘holders’ in the case in point hotel establishments, of costs which are manifestly disproportionate to the volumes or nature of the waste that they are liable to produce.”


This case has no connection with the issues considered in that case. Indeed the reference to estimates indicates the flexible view which the court took. Interestingly, estimates were not suggested as permissible by the defendant in the Circuit Court. The reference seems to have been to actual weight and volume.

Stripped to its essentials the defendant’s case has been interpreted as the right by way of defence in the District Court to have carried out by that court an elaborate investigation of the proportionality applied by the Council in achieving a polluter pays principle in their waste collection policy. Bearing in mind particularly that the claim for the charges arises under the general Local Government code and not under any special provisions relating to waste management, it is obvious in my view that these matters could not possibly be raised by way of defence in the civil claim.

At any rate, how matters are litigated in the national courts is a matter for the national legislation. The District Court and therefore on appeal the Circuit Court should decline to accept such a defence given that there are other forums and other more appropriate forms of proceedings which such litigation can be conducted.

I would, therefore, answer the first question in the negative and that being so, I consider it inappropriate to attempt an answer to any of the other questions. I would just add this however. The status of the judgment of Quirke J. in Dublin City Council v. Wright [2004] I. I.R. 53 and indeed the two Circuit Court judgments which did not follow it on the basis of an alleged proviso in that judgment retain their status and may well have a relevance in any future form of litigation in which the issues in this case are considered.