24
May, 2000
O
CAOIMH J
The
Applicant Deirdre de Burca is an elected member of Wicklow County Council
representing the Green Party and resides at 1 Wellington Court, Novara, Bray in
the County Wicklow.
By
Order of Mr Justice O'Neill made the 7 February 2000, the Applicant was given
leave to apply by way of an application for judicial review for the following
relief:
1.
A Declaration that the Respondent is required by article 4(2) of the European
Communities (Waste) Regulations 1979 and the
Waste Management Act 1996 to
prepare a plan pursuant to the said article as soon as possible
2.
A Declaration that the Respondent is in breach of article 4(2) of the European
Communities (Waste) Regulations 1979 and the
Waste Management Act 1996 having
failed to prepare a plan pursuant to the said article as soon as possible.
3
A Declaration that the Respondent is the competent authority with
responsibility within the given zone of functional area of the County of
Wicklow, for planning, organisation, authorisation and supervision of waste
disposal operations pursuant to Council Directive 91/156/EEC and is, as such,
required to draw up as soon as possible one or several plans relating to the
matters set out in Article 7 thereof.
4.
A Declaration that the Respondent, as the competent authority within the given
zone of functional area of the County of Wicklow, for the planning,
organisation, authorisation and supervision of waste disposal operations
pursuant to Council Directive 91/156/EEC, is obliged pursuant to Article 8 of
the said Directive to take the necessary measures to ensure that any holder of
waste has it handled by a private or public waste collector or a disposal
undertaking or disposes it himself in accordance with Article 4 of the said
Directive.
5.
An Order of mandamus requiring the Respondent to prepare a plan pursuant to
Article 4(2) of the European Communities (Waste) Regulations 1979 and the
Waste
Management Act 1996 as soon as possible.
6.
An Order of mandamus requiring the Respondent to collect, or arrange the
collection of, household waste within the functional area of the County of
Wicklow.
7.
A Declaration that the Respondent is in breach of
section 33(1)(a) of the
Waste
Management Act 1996 to collect or arrange the collection of household waste
within the functional area of the County of Wicklow.
8.
A Declaration that the Respondent is in breach of
section 33(1)(a) of the
Waste
Management Act 1996 in failing to collect or arrange the collection of
household waste within the functional area of the County of Wicklow
9.
An Order of Certiorari quashing the decision of the Respondent by County
Manager's Order Reference number. Env. 70/00 and dated the 27 January 2000 to
cease its household refuse collection service with effect from close of
business on Friday, 28th January 2000.
10.
Interim and/or interlocutory relief.
11.
Such further or other Order as to this Honourable Court doth seem fit and meet.
12.
The costs of and ancillary to these proceedings,
The
grounds upon which relief is sought or set out at paragraph E in the Statement
filed on the 8 February 2000 and are as follows:
1.
The Respondent is responsible for the planning, organisation, authorisation and
supervision of waste operations in the functional area of the County of Wicklow
pursuant to Article 4(1) of the European Communities (Waste) Regulations 1979
and the
Waste Management Act 1996. The Respondent was required by article 4(2)
of the European Communities (Waste) Regulations 1979 to prepare a plan
indicating:
(a)
the type and quantity of waste for disposal (b) general technical requirements
(c) suitable disposal sites, and (d) any special arrangements for particular
wastes.
2.
The Respondent has failed to prepare a plan as required by Article 4(2) of the
said Regulations and is in breach of the duty imposed by Article 4(2).
3.
The Respondent is the competent authority with responsibility, within the given
zone of the functional area of the County of Wick-low, for planning,
organisation, authorisation and supervision of waste disposal operations
pursuant to Council Directive 91/56/EEC. As such, it is required to draw up as
soon as possible one or several plans relating to the matters set out in
Article 7 thereof.
4.
The Respondent has failed to draw up as soon as possible one or several plans
pursuant to Article 7, and, as the Directive has direct effect on the
Respondent as an emanation of the State, the Respondent is in breach of the
provisions of said Article.
5.
The Respondent is the competent authority with responsibility within the given
zone of the functional area of the County of Wick-low, for planning,
organisation, authorisation and supervision of waste disposal operations
pursuant to Council Directive 91/56/EEC, is obliged pursuant to Article S of
the said Directive to take the necessary measures to ensure that any holder of
waste has it handled by a private or public waste collector or a disposal
undertaking or disposes it himself in accordance with Article 4 of the said
Directive.
6.
The Respondent has failed to take the necessary measures required by Article 8
of the said Directive and is in breach of the provisions of the said Article.
7.
Section 33(1) of the
Waste Management Act 1996 requires the Respondent to
collect, or arrange for the collection of, household waste within the
functional area of the County of Wicklow.
8.
By County Manager's Order Reference number Env. 70/00 and dated the 27th
January 2000 the Respondent purported to decide to cease its household refuse
collection service with effect from close of business on Friday the 28th
January 2000.
9.
The said decision of the 27th January 2000 had the effect that, since the close
of business on Friday the 28th January 2000, the Respondent has not collected
or arranged for the collection of, household waste within its functional area.
10.
The said decision amounted to an abdication of and a refusal to abide by the
duty imposed by
section 33(1)(a) of the
Waste Management Act 1996 and is breach
of the said Act.
11.
The said decision was predicated on alleged decisions of the elected members of
the Respondent County Council on the 22nd November 1999, the 13th December 1999
and the 17th January 2000 but the said alleged decisions did not or could not
authorise the breach of duty imposed by
section 33(1)(a) of the
Waste
Management Act 1996.
12.
In making the said decision, the Respondent took into account matters which
were not relevant to the duty imposed by
section 33(1)(a) and failed to have
regard to matters which were relevant and which should have been considered.
13.
Further or in the alternative, the said decision was purported to be authorised
by
section 33(2) of the
Waste Management Act 1996, which subsection provides
that
section 33(2)(a) shall not apply to the extent that any of the conditions
of
section 33(3) applies to that part or, as appropriate, to that household
waste.
Section 33(2) of the said Act of 1996 therefore relieves the Respondent
of the duty imposed by
section 33(2)(a) in respect of the limited extent where
the
section 33(3) conditions apply to a specific part of the Respondent's
functional area or specific household waste within that functional area. The
Respondent erred in law by purported to abdicate its duty under section
33(1)(a) of the Act 1996 for the entirely of the functional areas of the County
Wicklow and for the entirety of the household waste within the said area.
14.
The said decision is unreasonable and offends plain reason and common sense.
15.
The said decision was made notwithstanding the fact that:
(a)
an adequate waste collection service is not available in the County of Wicklow;
(b)
the estimated cost of the collection of the waste concerned by the Respondent
was not, in the opinion of the Respondent, unreasonably high;
(c)
the Respondent was not satisfied that adequate arrangements for the disposal of
the waste concerned can reasonably by made the holder of the waste.
16.
The Respondent failed to consider whether:
(a)
an adequate waste collection service is or is not available in the functional
area of the County of Wicklow;
(b)
the estimated cost of the collection of household waste within the said
functional area by the Respondent was or was not unreasonably high;
(c)
whether adequate arrangements for the disposal of the entire household waste in
the County of Wicklow can reasonably be made by holders of any waste within
such area.
17.
By reason of the matters set forth at paragraphs 15 and/or 16 above, the
Respondent erred in law in making the said decision.
18.
The said decision of the Respondent was ultra vires for the reasons aforesaid.
19.
The said decision was fundamentally flawed because it was expressly motivated
by irrelevant reasons.
20.
The said decision was in breach of Article 4(1) of the European Communities
(Waste) Regulations 1979, being an abdication of the Respondent's
responsibility for the planning, organisation, authorisation and supervision of
waste operations in the functional area of the County of Wicklow as imposed by
Article 4(1).
21.
The said decision was in breach of Article 8 of the Council Directive
91/156/EEC, being an abdication of the Respondent's responsibility as the
competent authority within the given zone of the functional area of the County
of Wicklow for the planning, organisation, authorisation and supervisions of
waste disposal operations in that functional area.
The
Applicant's application is grounded on her affidavit filed on the 8 February
2000. She states that she is very concerned with the issue of household waste
collection, as are many of her constituents. She believes that the collection
of household waste is an important function of local authorities and that the
local authorities should as far as possible carry out the collection of
household waste so there can therefore be accountability, a democratic
dimension and a commitment to meeting the needs of the households rather than a
private commercial imperative.
The
Applicant states that the elected members of Wicklow County Council have a
pivotal role in deciding waste management strategy including the strategy for
the collection of waste within the County of Wicklow. She states that the
European Communities (Waste) Regulations, 1979 (hereinafter referred to as the
1979 regulations) imposed the duty on the Respondent to prepare a waste
management plan, which plan shall contain a strategy in which the policy
objectives of the local authority are determined. The Applicant states that she
has been concerned at the Respondent's failure to comply with its obligations
under the 1979 regulations, which require the preparation of a plan "as soon as
may be" after the 18 December 1979. She states that over twenty years later, no
waste management plan has being prepared and that draft plans have come and
gone. A draft plan was produced in 1982 but was never adopted. Similarly, a
draft plan was presented to the elected members in 1999, but again this draft
was not adopted.
The
Applicant states that the draft plan presented in 1999 was aspirational and
discursive in its nature and fell far short of the requirements of the 1979
regulations and the Directive to which those regulations purport to give
effect, being Council Directive 75/442/EEC as amended by Council Directive
91/156/EEC. The Applicant states that the draft document also fell short of the
requirements of the
Waste Management Act, 1996, as that Act requires specific
matters to be addressed and the draft plan largely presented options to the
executives. She states that it was frustrating to find that the opportunity to
provide strategic 'planning for a Waste Management Strategy with public
involvement had been squandered. She states that the Directives and 1979
Regulations together with
the Act of 1996 which purport to give effect to the
Directives are concerned with providing for a systematic and modern planned
approach to waste management at a local level. She states that without a Waste
Management Plan the relevant authority has no idea how much waste it currently
produces, from where it originates, how it should be collected and how it
should dispose of the waste. Effective waste management is crucial to
environment management and sustainable development. She states that providing
for the proper collection of waste is obviously a vital part of waste
management.
The
Applicant is disturbed by the failure of the Respondent to adequately meet its
responsibilities as imposed by law including the 1996 Act, the 1979 regulations
and the Council Directives already referred to herein. The Applicant states
that this failure to meet its statutory obligations has being amplified by the
Acting County Manager's order reference number ENV.70/00 and dated the 27
January 2000 to cease its household refuse collection service with effect from
close of business on Friday the 28 January 2000. This decision to abandon all
responsibility for household waste collection creates many concerns in regard
to the protection of the environment and any regard to public health
considerations.
The
Applicant complains that Blaise Treacy, as County Manager of the Respondent has
suggested "out of the blue" that he believed that Wicklow County Council should
not collect waste in its functional area and that the collection of waste
should be left to the private sector. The Applicant states that she was greatly
disturbed by this suggestion, as without accountability and public service
considerations provided by the Local Authority as a household waste collector,
she believed that this vital service would become expensive and many areas
would be denied a waste collection service on a commercial cost benefit
analysis. The Applicant complains that there is no commitment to recycling
amongst most of the private collectors and the Respondent has no intention to
oblige them to recycle. She states that she strongly believes that the waste
collection is too important a matter to be left to the vagaries of the
commercial market. The Applicant states that she is not only opposed to the
suggested abandonment of the public service by the Respondent on principle, but
also on detail. She states that no one knows how comprehensive or affordable a
service could be provided by private household waste collectors and no one
knows the extent to which they could be supervised in practice. She apprehends
that private collectors will attempt to maximise their profits by increasing
the charges for their services and she fears that illegal and undesirable
dumping and burning of waste by householders will increase. She states that no
research has revealed the nature and the extent of the alternative service that
could possibly be provided by private collectors, or whether any alternative
service can be provided to collection by the Respondent in many parts or indeed
all of the County of Wicklow.
The
Applicant states that a fundamental decision as to whether or not the
Respondent should continue its household waste collection service should be
decided by the elected members as it would form an intricate part of such Waste
Management Plan that the elected members are required to make. She states that
it appears that the notion of abandoning a waste collection service at this
stage could be designed to remove the question from the elected members when
they are eventually permitted to adopt a Waste Management Plan because once the
service was abandoned many people have been obliged to enter into contractual
arrangements with commercial concerns so that resumption of a local authority
service would be less viable than heretofore.
The
Applicant states that on the 8 November 1999, at an estimates meeting of the
elected members of Wicklow County Council, it was proposed that the household
waste collection charge be increased to L200 per annum. She states that this
proposal caused significant disquiet and the meeting was adjourned to the 22
November 1999. She states that on the 22 November 1999, the motion was
reintroduced. There was a considerable degree of confusion as to the cost of
the collection service and the lack of audited accounts from 1997 to 1999 meant
that it was not possible for the elected members to make an informed decision
as to the appropriate amount to charge householders for the service. The
Applicant believed that the motion was designed to be defeated so that this
decision could be suggested to be justification for the abandonment of the
service. She states that when a majority of fourteen to nine voted against the
motion, no sum in respect of household waste collection charges was included in
the estimates for the year 2000.
The
Applicant states that she became aware of notices published in the "Bray
People" and the "Wicklow Times" on or about the 12 December 1999, headed
"Wicklow County Council, Bray UDC, Wicklow UDC, Arklow UDC." indicating that
"The
Wicklow local authorities will not be collecting household refuse after 31st
December 1999. Householders who presently avail of the Local Authorities Refuse
Collection service should make alternative arrangements with the private
operations with effect from 1st January 2000."
The
Applicant states that a circular was posted to householders across the County
of Wicklow by the Respondent, advising that the Respondent will not provide a
refuse service with effect from the 1 January 2000. This circular stated "as
from this date it is up each householder to make their own arrangements with
private collectors/operators". The Applicant states that the circular goes on
to name private operators who are represented to either provide a service or to
be interested in providing a service. The operators she states are based in
Dublin, Wexford, Kildare, Car-low as well as in County Wicklow. The circular
was enclosed with another leaflet, which stated "All householder should at this
stage make alternative arrangements with one of the many private operators
currently advertising their service in the County". The Applicant states that
it went on to ask "Was the service not partly privatised " and answered it's
own question with the word "Yes". The Applicant states that another leaflet,
distributed by Bray UDC, listed a number of waste collectors and added
"consumers may wish to consult the yellow pages for a more comprehensive list
of refuse collection operators".
The
Applicant states that at the meeting of the elected members of the Wicklow
County Council on the 17 January 2000, an opinion of Senior Counsel was
circulated. She states that the Assistant County Manager subsequently decided
by County Manager's order, dated the 27 January 2000 " I hereby order that
Wicklow County Council ceases its household refuse collection service with
effect from close of business on Friday 28th January 2000". The Applicant
states that the Respondent has acted on this order to cease providing any
household waste collection service in the County of Wicklow and says that this
has caused significant concern as persons who had previously had their
household waste collected by or on behalf of Wicklow County Council have had to
contract with private collectors who service parts of County Wicklow. She
states that she is aware of people who could not find a collector who would
resume the service provided by the Council and that bags of rubbish had begun
to accumulate on the streets. She states that there is a real danger that
illegal dumping and burning will escalate. This has already occurred in Bray
and the dumping on the streets, which took place in Bray, was exacerbated by
strike action.
The
Applicant believes that on an annual basis Wicklow County Council collects some
12,669 tons of waste from approximately 9,745 households, Bray Urban District
Council collects 9,865 tons of waste from approximately 9,000 households and
Arklow Urban District Council collects some 4,290 tons of waste from
approximately 3,300 households. The Applicant believes that the private
collectors will not be able to cope with the increased demand for their
services in the short term, which will result from the Respondent's decision.
The Applicant states that the furnishing of householders with the list of names
and addresses of collectors of waste did not constitute the arrangement of
services for the householders but is instead a complete abdication of
responsibility without any consideration given to the consequences of the
decision. The Applicant states that the Order of the 27 January 2000, refers to
the entire of the County of Wicklow but no enquiry whatsoever has been made
into whether an adequate waste collection service is available in every single
part of the County of Wicklow. She states that there are now parts of the
County in which there is no waste collection service and that this certainly
applies to many more remote rural parts. The Applicant states that the
Respondent has not decided that the costs of collecting a particular
household's waste is unreasonably high, but rather made an Order without making
any or any adequate enquiry into the cost on the basis required by
Section
33(3)(b) of the
Waste Management Act, 1996. The Applicant states that no
question can arise as to whether adequate arrangements for the disposal of a
particular household's waste can be made by that householder as no enquiry was
made and no evidence was before the Respondent as to the alternative
arrangements that could be made by each and every one of more than 10,000
households left without a waste collection service. The Applicant refers to a
press report of the 2 February 2000 in which it is reported that the acting
County Secretary stated that more than one half of the 9,000 household's in
Wicklow town is now without a refuse collection service and in such
circumstances it can hardly be claimed that an adequate waste collection
service is available in the town of Wicklow or that adequate arrangements for
the disposal of the waste of householders of Wicklow town can reasonably be
made by the householders. It appears that on the 3 February 2000, the press
reported that the Respondent had declared that the reinstatement of a waste
collection service was not possible.
In
this application, the Applicant seeks an Order requiring the Respondent to
resume the collection of household waste within the functional area of the
County of Wicklow and in the alternative the Applicant seeks an Order requiring
the Respondent to arrange for the collection of household waste within the
Respondent's functional area.
On
behalf of the Respondent, Micheal O'Leary, who is described as the Senior
Executive Engineer, has sworn an affidavit. At paragraph 3 of his affidavit, he
states that the background to the Council's decision of the 27th January 2000,
is as follows:
(i)
For a number of years, private commercial waste operators have had both the
capacity and willingness to provide a waste collection service within the
Council's functional area. In 1999, there were approximately 20,000 households
within the functional area of the Council. Of that number, approximately 9,745
were provided with a waste collection service by the Council. Approximately
9,000 were provided with a waste collection service by private commercial
operators such as Noble Waste, Arklow Waste, Andrew Phibbs and smaller private
operators such as Wheel Bin Service, Cobb and Whelan.
(ii)
Therefore, as of 1999, approximately 500/o of the households within the
functional area of the Council were provided with a waste collection service by
private commercial operators;
(iii)
In the course of preparing the Council's estimates for the year 1999, the
County Manager proposed an increase in the annual household refuse charge from
L65 to L206. Even with this level of charge, the Council was still providing a
subvention of approximately L300,000 towards the estimated costs of the
collection of the waste concerned. Following a lengthy debate, the Council
eventually adopted a charge of L95 per household in 1999;
(iv)
Recognising that the continued subvention of waste collection was unsuitable in
the long term (and contrary to "the polluter pays" principle), the Council set
about considering whether adequate arrangements for the management of waste
within its functional area could be made, including, inter alia, arrangements
with private commercial operatOthers In May of 1999, the Council placed an
advertisement inviting submission. In all, some 13 submissions were received
from private commercial operators and it was clear from the submissions
received and subsequent discussions with operators who made submissions that an
adequate waste collection service was available throughout the Council's
functional area from those commercial private operators and adequate
arrangements could be made for the disposal of the waste concerned between the
householders and the private commercial operators at a cost significantly less
than that provided by the Council;
(v)
In 1999, the Council lost approximately 2,000 householders to the private
sector;
(vi)
In due course, the Council subsequently prepared its draft estimates for the
year 2000. These estimates provided for a refuse service charge of L200 per
household (i.e. those households using the Council's waste collection service),
a charge, which was in accordance with Government and EU policy reflecting the
real costs of the service provided. The charge of L200 (contained in the
estimates) compared with charges by private commercial operators in the range
of L90 to L156 (which includes the provision of a wheeled bin) per household.
In addition the private commercial operators were also offering a bag
collection service at a cost of L1.50 per bag. At present there are
approximately ten commercial operators competing for the service;
(vii)
The privatisation of the household waste collection service will not affect the
employment of the Council's refuse crews because alternative employment is to
be provided or, alternatively, a compensation package offered.
(viii)
On the 22 November 1999, the elected members of the Council adopted estimates
without providing for a household waste collection charge to be imposed for the
service.
(ix)
On at least two occasions since the adoption of those estimates, the issue was
revisited by the elected members of the Council, but no proposals were passed
by way of resolution by the elected members of the Council altering the
adoption of the estimates on the 22nd November, 1999.
(x)
Mr O'Leary claims that the Applicant took a full part in the
deliberations/submissions of the elected members of the Council on the 22nd
November, 1999 and that she was fully aware of the implications of the decision
of the elected members of the Council to adopt the estimates without a service
charge. He says that she has known since at least the 22 November, 1999 that
the effect of the decision of the elected members of the Council was the
cessation of the Council's household refuse collection service, with effect
from close of business on Friday 28th January 2000. He complains that the
Applicant has delayed in seeking the relief herein and has acquiesced in the
steps taken by the Council's executive in the implementation of the
privatisation of a waste collection service since that date.
Mr
O'Leary then states at paragraph 4 of his Affidavit as follows:
"Having
regard to, inter alia, the adequacies of the waste collection services
available within the Council's functional area, by private commercial operators
(who in 1999 had already provided 50% of households with that service), the
estimated cost of collection of household waste by the Council, the fact that
adequate arrangement for the disposal of waste could be made and the adoption
of estimates without providing for a service charge, the County Manager made
his Order on the 27 January 2000, the decision in principle having being made
as of the 22 November 1999."
Mr
O'Leary states that the existing service was continued until the end of January
2000 to assist in the transitional period and to allow the householders to make
adequate arrangements for the collection and disposal of waste within their
area.
Mr
O'Leary states that the decision to privatise the waste collection service for
householders within the functional area of the Council was arrived at on or
about the 22nd November, 1999 as a result of the process commenced in or about
May of 1999.
It
is submitted that the Respondent is not obliged to collect or arrange for the
collection of household waste within its functional area because one or more of
the conditions contained in
Section 33(3) of the
Waste Management Act, 1996
applies to the entire of the Council's functional area and to the household
waste therein.
Mr
O'Leary states that it is incorrect to say that, by virtue of the Council's
Order of the 27th January, 2000, it has abandoned all responsibility for
household waste collection and he states that there is no evidence to
substantiate the averment that there has been any danger to the environment or
to public health in the manner suggested by the Applicant. Mr O'Leary claims
that the collection of waste by private commercial operators is not a matter
that was suggested "out of the blue" and he says that the Applicant fails to
take into account the fact that in 1999 at least approximately 50% of
households within the functional area of the Council were provided with a waste
collection service by private commercial operators. Mr O'Leary asserts that is
clear that the continuation of the Council's service in the year 2000 would
have been more financially onerous on householders within the functional area.
With reference to "recycling" Mr O'Leary claims that the Respondent fully
encourages recycling and, under regulations to be introduced in the coming
months, will be in a position to require recycling as part of the waste regime
under those Regulations. Mr O'Leary further asserts that it is clear that the
provision of a waste collection service by the Council for the year 2000 would
have been more expensive for existing customers within the functional area and
there is no evidence before the Council of any increase in illegal or
undesirable dumping or burning of waste by householders and no evidence has
been adduced in support of such a contention.
Mr
O'Leary concedes that no Regulations relating to the issue of "waste collection
permits" have been introduced under the
Waste Management Act but states that he
is informed by the Department of the Environment that regulations pursuant to
section 34 of the
Waste Management, Act are to be introduced in the coming
months.
Mr
O'Leary denies that the Council has in any way abdicated its responsibilities
under the
Waste Management Act or that, in exercising its statutory
obligations, the Council is obliging householders to commit a criminal offence.
Mr
O'Leary asserts that no imperative exists for the Council to resume its waste
collection service nor is there any necessity so to do and that any decision in
relation to the collection of waste pursuant to
Section 33 of the
Waste
Management Act, 1996 is not a "reserved function" but, on the contrary, is an
executive function of the Council. It is submitted that the obligation of the
elected members of the Council to prepare a Waste Management Plan is separate
and distinct in law from the Council's obligation in relation to the collection
of waste under
Section 33 of the
Waste Management Act, 1996.
Mr
O'Leary asserts that the Council is unaware that any of its existing customers
within its functional area have not been in a position to be provided with a
waste collection service. He believes that private commercial operators are now
offering a more comprehensive service than that provided by the Council and
that it has no evidence of any increase in illegal dumping or burning or of any
accumulation of rubbish on streets in the manner alleged. It is submitted that
Bray Urban District Council is a separate functional area to that of the
Respondent and that since the 27th January 2000, the private commercial
operators are dealing with the increased demand for their service and the
Council has no evidence to suggest otherwise.
It
is submitted that the Council has at all material times complied with the
provisions of
Section 33 of the
Waste Management Act, 1996 and that there is
now in place a comprehensive waste collection service throughout the Council's
functional area for its householders and that adequate arrangements for the
disposal of household waste can be made by the householders given the
comprehensive service being offered by private commercial operatOthers Mr
O'Leary says that the Council has no evidence of an insufficient waste
collection service within its functional area.
It
is submitted by the Respondent that the Applicant's application for
interlocutory relief in these proceedings (by way of mandatory injunction) is,
in effect, inviting the Court to make a final determination of the issues
raised in these proceedings at the interlocutory stage and that it is
inappropriate for the Court to grant such mandatory orders and that the balance
of convenience is against such Orders being made.
The
Applicant swore a supplemental affidavit on the 13 February 2000, in reply to
Mr O'Leary's Affidavit of the 17 February 2000. In her affidavit, the Applicant
states that whether or not some private waste collectors wish to operate a
service in the County of Wicklow, it is an indisputable fact that the private
waste collectors have not the capacity to take over the collection of household
waste abandoned by the Respondent. She states that even if the private waste
collectors operating in Wicklow were to increase their capacity, this does not
mean that there is an adequate waste collection service available in every
single part of the County of Wicklow. The Applicant claims that no waste
collector operating in the County is authorised under and in accordance with
the
Waste Management Act 1996 and further states that no household waste
collector operating in the County has received a permit issued by the
Respondent authorising it to dispose of waste pursuant to the 1979 regulations.
The Applicant states that only one single waste collector operating in the
County of Wicklow is authorised under and in accordance with the
Environmental
Protection Agency Act 1992. This collector currently collects from
approximately 7,400 houses, in circumstance where the three Local Authorities
collected from approximately 22,000 houses. The Applicant states that this
collector Noble Waste has not the capacity to increase its services by 200
overnight.
The
Applicant claims that a number of private operators have attempted to step into
the breach and take over household waste collection services from Wicklow
County Council in the more commercially viable areas. She states that the
Respondent has recommended some of these collectors to the people of Wicklow.
The Applicant claims that other collectors have mushroomed into existence
having never being heard of before. She claims that these collectors are not
supervised, regulated or inspected by the Respondent despite its duties under
both the
Waste Management Act 1996 and the 1991 Directive. The Applicant then
states that it seems that the Respondent seeks to rely on the services provided
by those collectors. The Applicant believes that these collectors have no
authorisation at law and she believes and apprehends that it is an offence for
householders to transfer the control of their waste to any of these collectors.
The Applicant states that it is not true to say that private commercial
operators provided 50% of the households within the functional area of the
Council with a waste collection service prior to the Respondent's decision to
cease collection. She claims that only 27% of the household's in the 1996
census in Wicklow were served by private commercial operators. The Applicant
contends that the arguments advanced on behalf of the Respondent as to the cost
of collection are mistaken. She contends that if the Respondent made proper
attempts to collect the annual household refuse charges due to it, that it is
likely that the charge could be significantly reduced. She states that instead
the Respondent permits people to simply not pay the charge where no social
requirement exists in the particular case. She claims that this is in complete
dereliction of the pollution rationale underpinning the Waste Directive and the
Irish legislation implementing that Directive.
The
Application points out that the passing of estimates for a Council is a
reserved function of the elected members, and the executive is under a duty to
advise and assist the elected members in carrying out this function. She states
that the elected members could not have decided to privatise the waste
collection services as this decision could only be made by them in the context
of making, reviewing, replacing or varying a Waste Management Plan. She states
that the elected members decided not to levy a service charge in relation to
waste collection and that such a decision can be justified as pending an
adoption of a Waste Management Plan and that financing of the existing waste
collection service can be met by the collection of L900,000 outstanding in
respect of service charges to Wicklow County Council. The Applicant points out
that rates and similar charges are collected on a 98% collection basis but
waste collection charges are only collected in recent years on a 68% basis.
The
Applicant claims that the decision of the Respondent has in effect usurped the
function of the elected members in making a Waste Management Plan as the
collection of waste would be a vital aspect of such a plan. She states that the
executive of the Respondent has evinced a desire to abandon the collection of
waste prior to the adoption of the Waste Management Plan by the elected
members. This is why this decision was rushed through without heed to the
consequences, legal or practical, in the manner shown. The Applicant contends
that the Respondent cannot fulfil its obligations by simply withdrawing its
service for the entire of its functional area and that it is untrue that she
was aware that the service would be withdrawn by the 27 November last. She
points out that the decision of the Manager was not made until the 27 January
of this year and no question of delay or acquiescence can arise in this case.
While
Mr O'Leary has referred to a decision in principal having being made by the
County Manager on the 22 November 1999 to abandon the household waste
collection service in County Wicklow, the Applicant indicates that no decision
in principal was communicated to her and she doesn't understand the nature and
status of such a decision. She says that she is equally mystified by the
reference to a process commenced in or about May of 1999 to privatise the waste
collection service in Wicklow. She says that the word privatise is a misnomer
in this context. She contends that what the Respondent has done is simply to
abandon the public service formerly provided, without any or any adequate
service being in place to meet the requirements of the householders of the
County.
The
Applicant states that her experience as an elected member of Wicklow County
Council, is that a large number of households are currently without any
service. Many householders refuse to engage the private collectors. She states
that at a Council meeting on the 7 February 2000, reference was made to a
householder who had no service in her area and was fined following her attempt
to transfer her waste to the Council tip in Rathdrum. She states that she can
name a number of people who cannot afford or cannot obtain a private waste
collection service. She states that the collection service in Bray is on a
trial basis. Private collectors have refused to collect in certain areas of
that town. The Applicant states that large amounts of waste accumulated in Bray
initially, but due to private collectors collecting abandoned waste in the
initial period, this accumulation is now restricted to pockets of waste in
specific locations. The Applicant claims that a consequence of the withdrawal
of the service by the Respondent is the burning, dumping and storing of waste.
She says that this should be a cause of great concern to the Respondent and
that she finds it extremely alarming to note that Mr O'Leary does not accept
that there has been adverse environmental and public health developments since
the 27 January 2000 or any dumping or burning. The Applicant states that she
had witnessed dumping and burning of household waste since that date. She
states "nearly everybody in Wick-low must have." The Applicant has expressed
the fear that dumping and burning will steadily increase unless or until the
Council resumes it's service. She states that the Council has been aware of the
situation and it is untrue to say that there is no evidence before the Council
of these activities. With regard to Mr O'Leary's assertion that private
commercial operators are now offering a more comprehensive service than that
provided by the Council, the Applicant has rejected this assertion and points
out that services provided by the collectors servicing Wicklow are not complete
and she has been informed by her constituents that many areas and households
have not been able to obtain a service.
On
behalf of the Applicant it is submitted the failure of the Council to adopt an
estimate to include provision for the collection of refuse does not absolve the
Respondent of its requirement to collect waste. It is submitted that the status
quo at the time of the application to the Court was the collection of waste and
that the order, which is sought, is an order requiring that to continue. While
the application seeks in effect mandatory relief, it is submitted that this
will not determine the action but is of its nature there to maintain the status
quo. It is submitted that the relief being sought is simply for a short period
of time pending the hearing of this action. The Applicant relies upon the
provisions of Article 8 of Council Directive 91/156/EEC, which provides as
follows:
"Members
states shall take the necessary measures to ensure that any holder of waste has
it handled by a private or public waste collector or by an undertaking which
carries out the operations listed in Annex II A or B or recovers or disposes of
it himself in accordance with the provisions of this Directive."
It
is submitted on behalf of the Applicant that the actions of the County Council
in this case amounts to a failure on the part of Ireland as a member state to
take the necessary measures to ensure compliance with the provisions of Article
8 quoted above. In this regard it is submitted that there has been a failure to
ensure that the holders of waste, namely the householders in the County of
Wicklow have their waste handled and recovered in compliance with the terms of
the Directive.
On
behalf of the Respondent, it is submitted that the three steps must be
satisfied before an injunction is granted by the Court being the necessity to
show 1. That there is a fair issue to be tried. 2. That damages are an
inadequate remedy. 3. That the balance of convenience favours the granting of
an injunction.
It
is submitted that when examined in the light of the instant case, these
considerations fail. It is submitted, first of all, that there is no issue to
be tried, secondly, that there is no issue of damages being granted to the
Applicant herself, and thirdly, that the balance of convenience favours the
Local Authority. It is submitted that the Court is being asked to grant a
mandatory injunction involving the provisions of personal services subject to
the supervision of the Court. It is submitted further that the provision of
equipment and the procedures relating to household waste disposal and removal
have all been stood down by the Local Authority and in these circumstances it
would be extremely difficult to provide the services afresh. It is submitted
further that the Applicant had made out no illegality. It is submitted that
there is no obligation on a householder to pass on waste to a Local Authority
or licensed holder. It is pointed out by the Respondent that obligations under
the Act relating to persons collecting waste have not yet been put in place as
the necessary regulations have not been made. The term "waste collection
permit" is interpreted in
Section 5 of
the Act to have the meaning assigned to
it by
Section 34.
Section 34,
Subsection 1 of the 1996 Act provides as follows:
(1)
(a) Subject to paragraph (b), a person other than a local authority shall not,
for the purpose of reward, with a view to profit or otherwise in the course of
business, collect waste, on or after such date as may be prescribed, save under
and in accordance with a permit (in
this act referred to as a "waste collection
permit") granted by the local authority in whose functional area the waste is
collected.
(b)
The Minister may make regulations providing that paragraph (a) shall not apply
in respect of the collection of any class or classes of waste where such
collection is carried out in compliance with such requirements (which may
include a requirement as to the entry of specified particulars concerning the
person carrying out the collection in the register maintained by the local
authority concerned under
section 19) as are specified in the regulations.
(c)
a person who contravenes paragraph (a) or any requirement of regulations under
paragraph (b) shall be guilty of an offence.
It
is submitted on behalf of the Respondent, that no date has been prescribed by
regulation made by the Minister under
Section 34 (11) (a) for the purposes of
Section 34 of
the Act and consequently the provision precluding the collection
of waste save under and in accordance with a permit does not yet apply in law.
Section
32,
subsection 1, provides that a person should not hold, transport, recover or
dispose of waste in a manner that causes or is likely to cause environmental
pollution.
Section 32 (2) provides that a person should not, save in such
circumstances as may be specified under
Subsection 4, transfer the control of
waste to any person other than an 'appropriate person'. This subsection has not
yet been brought into force under the terms of any commencement order in the
Act.
At
the heart of this case are the provisions of
Section 33 of
the Act, which
provide, inter alia, as follows:
33
(1) (a) Each local authority shall collect, or arrange for the collection of,
household waste within its functional area.
(b)
The corporation of a borough (other than a county borough) or the council of an
urban district may collect, or arrange for the collection of, household waste.
(2)
Subsection (1) (a) shall not apply to household waste in any part of a local
authority's functional area to the extent that any of the conditions mentioned
in subsection (3) applies to that part or, as appropriate, to that household
waste.
(3)
The conditions referred to in subsection (2) are
(a)
an adequate waste collection service is available in the part concerned of the
local authority's functional area,
(b)
the estimated costs of the collection of the waste concerned by the local
authority would, in the opinion of the authority, be unreasonably high,
(c)
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.
(4)
A local authority may collect, or arrange for the collection of waste, other
than household waste.
(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.
It
is submitted on behalf of the Respondent that the conditions referred to in
Subsection 3 have been satisfied in this case, such that the provisions of
Subsection 1 (a) do not apply and as a result that the Respondent local
authority is not under any obligation to arrange for the collection of
household waste within it's functional area. In this regard it is submitted
firstly, that an adequate waste collection service is available in the
Respondent's functional area, secondly, that where it may not be available that
the estimated cost of the collection for the waste concerned by the Local
Authority would in it's opinion be unreasonably high and, thirdly, that the
Respondent is satisfied that adequate arrangements for the disposal of the
waste concerned can reasonably be made by the householder of the waste. In this
regard, reliance is placed upon the affidavit of Mr O'Leary. It is submitted
that no lasting requirement exists for collection of the waste - the household
waste in this case- under the terms of Article 8 of the Directive or otherwise
even if conceding that the activities under Annex II A or B may require a
permit. In this regard, it is submitted that the requirement to hold a waste
licence only applies to the disposal and recovery of waste at a facility.
Accordingly, it is submitted that there is no breach of statute in making
available to householders the collection service carried out by a third party
or any activity of these collectors of waste, and based upon this, it is
submitted that there is no illegality pertaining to their activity.
With
regard to the issue of damages, the question posed on behalf of the Respondent
is: Has the Applicant herself suffered any damage It is submitted that she has
shown no evidence of individual damage and that she can avail of a house
collection service by paying the appropriate person.
It
is submitted further, insofar as the relief being sought is the grant of a
mandatory injunction, that to succeed in obtaining a mandatory order from the
Court, it must be possible to specify with a sufficient degree of particularity
precisely what action is required to comply with it's terms and it must be
clear "what the person against whom the injunction or Order is made, is
required to do or to refrain from doing". Counsel referred to portion of the
Judgment of Lord Justice Maugham in the case of Fishenden -v- Higgs and Hill
Limited [1935] 153 LT 128 at 142 where it was stated: "I think a mandatory
injunction, except in very exceptional circumstances, ought to be granted in
such terms that the person against whom it is granted ought to know exactly
what he has to do."
Counsel
has informed the Court that this statement was quoted with approval by Murphy J
in Bula Limited -v- Tara Mines Limited (No2) [1987] IR 95, at 104, in which he
refused to grant mandatory interlocutory injunctions, inter alia, because, in
his opinion, if granted in the terms sought, the orders would not be certain
enough in their terms to enable it to be ascertained whether the Defendants
were complying with the injunctions granted by the Court.
Counsel
further refers the Court to the decision of the House of Lords in Redland
Bricks Limited -v- Morris [1970] AC 652, in support of the proposition that a
strong case must be made out by the Plaintiff or Applicant in these proceedings
before mandatory relief will be granted at an interlocutory stage of the
proceedings. It was submitted that at the very least a Plaintiff must show a
strong evidence of continuing or imminent prejudice before Court will make an
Order of this nature. Counsel further referred the Court to the decision of the
Supreme Court in Campus Oil Limited -v- Minister for Industry and Energy (No 2)
[1983] IR 88, in which O'Higgins C J made it clear that the lack of its success
at trial should not be a factor in granting of interlocutory relief generally,
although he did go on to say that such relief would issue in mandatory form in
exceptional cases such as that then before the Court. Counsel submitted that
mandatory interlocutory injunctions will only issue in very limited
circumstances. Counsel referred also to passages in Keane "Equity and the Law
of Trusts in the Republic of Ireland" to similar effect. Counsel referred to a
passage in the Judgment of Lynch J in the case of ICC Bank Plc -v- Richard
Verling and Others [1995] 1 ILRM 123 at page 130, where he stated as follows:
"Where,
however, the interlocutory relief sought takes the form of a mandatory
injunction, and where, as in this case, a mandatory injunction will effectively
conclude the matter as against the second and third Defendants and thus alter
rather than maintain the status quo as far as they are concerned, I think that
in the exercise of my discretion to grant or refuse interlocutory relief, I
shall look for something more from the Plaintiff's than a mere arguable case."
In
that case Lynch J, held that the Plaintiffs had made out a strong prima facie
case.
Counsel
referred the Court to the decision of Murphy J in Bula Limited -v- Tara Mines
Limited (No2), referred to above, where at page 103 of the report, having
referred to the following portion of the judgment of Megarry J in Shenard Homes
Limited -v- Sandham [1971] Ch. 340,
"At
the trial of the Action, the Court will, of course, grant such injunctions as
the justice of the case requires; but at the interlocutory stage, when the
final result of the case cannot be known and the Court has to do the best it
can, I think the case has to be unusually strong and clear before a mandatory
injunction will be granted, even if it is sought in order to enforce a
contractual obligation."
Murphy
J stated as follows:
"Whilst
I would respectfully agree with much of what the learned Judge said in the
Shenard Homes Case about the important differences between prohibitory and
mandatory injunctions, I would be reluctant to accept the position, if that is
what it is, that the granting or withholding of a mandatory injunction on an
interlocutory application should be related to or depend upon the strength of
the applicant's case. As has being pointed out in a number of cases in recent
years, there are grave difficulties in evaluating the strength of an
applicant's case on fact or even in law at any time before a full hearing has
taken place."
In
the same case Murphy J referred to the Redland Brick Case and noted that it
concerned a mandatory Order granted after a preliminary hearing. However, he
went on to state that it seemed to him that the same principle is at least
equally applicable to the granting of a mandatory order at the interlocutory
stage.
In
reply to the arguments presented on behalf of the Respondent, Mr Bland of
Counsel for the Applicant referred afresh to the legislation and pointed to the
failure on the Minister's part to make regulations governing
the Act of 1996.
Counsel referred to the fact that
Section 32 (2) of the
Waste Management Act of
1996, was one of the sections which was not brought into force when the
Minister for the Environment made a commencement Order relating to that Act on
the 24 June 1996. Counsel referred to the fact that no regulations had been
made under the terms of the 1996 Act and that in the context of
Section 32,
subsection 2, only one operator had obtained a licence under the
Environmental
Protection Agency Act.
Counsel
relied squarely on the provisions of
Section 32 and the prohibition contained
in that Section. Counsel stated that until 1996 under the terms of the 1979
regulations which were then in force, it was a criminal offence to transfer
waste to anyone other than an authorised collector.
The
1979 Regulations were revoked by the provisions of
Section 6 Subsection 2 of
the
Waste Management Act, 1996. This Section itself came into operation on the
20th of May 1998 by reference to the provisions of
Section 1 (2) of
the Act of
1996. Under the terms of the 1979 regulations, it was provided at Regulation 3
thereof that a holder of waste, if he does not himself dispose of the waste,
shall not permit disposal of the waste by any person other than a public waste
collector or a person holding an appropriate permit under Article 5 of these
Regulations. As the regulations have now been revoked, it is to be noted that
they have not been replaced by any fresh regulations made by the Minister under
the Act of 1996.
Subsection 2 of
Section 32, of
the Act of 1996, provides that
a person shall not, save in circumstances as may be specified under
Subsection
4, transfer the control of waste to any person other than an appropriate person.
The
term "an appropriate person" is defined in
section 32 (5) to mean a local
authority, the corporation of a borough that is not a county borough, the
council of an urban district, or a person otherwise authorised under and in
accordance with
this Act or
the Act of 1992 to undertake the collection,
recovery or the disposal of the class of waste in question. The Act of 1992
means the
Environmental Protection Agency Act, 1992 (See Section 5 (1) of the
Act 1996.) It is provided in Subsection 6 of Section 32 that a person who
contravenes subsection 1, 2 or 3 or a provision of regulations under subsection
4 shall be guilty of an offence.
Based
upon this legislative picture, the case made on behalf of the Applicant is that
anyone who transfers the control of waste to any person other than a Local
Authority or a person authorised under the terms of the 1992 Act is guilty of
an offence.
The
Applicant's case is that as no regulations have been made under the provisions
of Section 32 Subsection 4, the transfer of the control of waste to any person
other than the sole holder of an EPA licence is illegal. It is submitted that
none of the other persons identified by the Local Authority to collect
household waste is a person who is authorised by law to take the control of
such waste having regard to the provisions of Section 32 subsection 2.
Counsel
has submitted that the Respondent constitutes an emanation of the State and
that the terms of the 1991 Directive, (i.e. Council Directive 91/156/EEC of the
18 March, 1991), requires Members States to take the necessary measures to
ensure that any holder of waste has it handled by a private or public waste
collector or by an undertaking which carries on the operations listed in Annex
II A or B, or recovers or disposes of it himself in accordance with the
provisions of this Directive. The activities referred to Annex II A and Annex
II B are disposal operations or operations which may lead to recovery of waste
without endangering human health. It is submitted on behalf of the Applicant
that the term "holder" applies to any holder in the State and, furthermore,
that any holder of waste can rely upon the terms of the Directive on the basis
that the same has direct effect, insofar as Wicklow County Council constitutes
an emanation of the State.
It
is further submitted on behalf of the Applicant that if, contrary to the
earlier submissions to the effect that the 1979 regulations no longer are
applicable, the Court holds that the same do apply, nevertheless the activities
in the instant case amount to a contravention of Regulation 3 thereof as the
collectors identified by the Respondent are not holders of any permit under
Article 5 of those regulations. The Applicant complains that the action of the
Respondent is that of handing out lists of unauthorised persons to collect
waste. It is further submitted on behalf of the Applicant that the longer time
elapses from the 27 January last that the more people will enter into
arrangements with unauthorised waste collectOthers
The
Applicant contends that, if Section 32 (2) has the effect contended for, the
result is that approximately 20,000 people who had the benefit of public
collections will be engaged in criminal activity, unless Noble Waste collects
their refuse and clearly that is not a company that would be in a position to
collect the waste from 20,000 people. In light of this submission, the
contention on behalf of the Applicant is that the situation is such that the
Respondent County Council must collect the waste in question or itself arrange
for the collection of the waste. It is conceded on behalf of the Applicant that
if the County Council sees fit to remove itself from the actual collection of
waste that it can satisfy its statutory duty by making public arrangements for
the collection of this waste. It is submitted that this could be done by an
appropriate tendering out to persons with licences or persons otherwise
regulated under Article 12 of the 1991 Directive. It is emphasised that the
fact that the Minister failed to make regulations under the 1996 Act does not
prevent the provisions of Section 32 Subsection 2 having the force of law.
Based upon the contention of the Applicant that the activity being put in place
since the 27 January last amounts to an illegal activity, criminalising up to
23,000 people, it is submitted that this renders the balance of convenience to
lie with the Applicant in the instant case.
Collection
of Waste
Section
33 of the Act of 1996 provides for the collection of waste and imposes in
subsection 1 thereof, an obligation on each local authority to collect or
arrange for the collection of household waste within its functional area. By
reference to the provisions of subsection 9 of section 33, it will be seen that
the definition of local authority appearing in section 33, subsection 1,
excludes an Urban District Council or a borough corporation or council. This
means that the Respondent in these proceedings has responsibility under the
provisions of Section 33 (1) of the Act in relation to the entire of the County
of Wicklow. However it is to be noted that Section 33 (1)(B) provides that the
corporation of a borough other than a county borough or a council of a urban
district may collect or arrange for the collection of household waste, This
provision is permissive in its nature.
It
is submitted on behalf of the Applicant that no evidence exists of an opinion
having been formed by any of the Urban District Councils within the County of
Wicklow to the effect that the estimate of cost of collection of the waste
concerned by the local authorities would in the opinion of the authority, be
unreasonably high, having regard to the provisions of Section 33(3)(b) of the
Act. It is further submitted that the provision referred to at Subsection 3(a)
of the Section, that an adequate waste collection service is available in the
part concerned in the local authority's functional area is a matter of
objective fact to be ascertained, as opposed to a situation arising in
subsection (b) where a specific opinion has to be formed by the local authority
in question. It is submitted that nothing has been offered by way of an opinion
by the Respondent outside of the Urban District Council areas within County
Wicklow. Counsel for the Applicant has queried whether one can rely upon the
affidavit of Mr O'Leary as demonstrating the formation of the opinion required
in Section 33 Subsection 3(b). It is submitted in relation to this subsection
that the question of an opinion having been formed that the estimated cost of
the collection of the waste concerned by the local authority would be
unreasonably high was not something to which the appropriate test is as
propounded by the Supreme Court in the case of O'Keeffe -v- An Bord Pleanala
relating to alleged irrationality. It is submitted that it involves the
estimated cost of specific personal waste and whether these costs are
unreasonably high and that these costs are the cost to the local authority and
therefore requires a specific opinion to have been formed by the local
authority in relation to the costs in question. It is submitted that in the
application before me that nowhere is there any evidence as to the cost to the
local authority having been the subject matter of any specific opinion. Counsel
for the Applicant has placed particular stress upon the provisions of Article 8
of the Council Directive whereby Member States are required to take the
necessary measures to ensure that any holder of waste has it handled by a
private or public waste collector or by an undertaking which carries out the
operations referred to in the Annex to the Directive. In light of this
provision, it is submitted that Section 33, insofar as it permits the
withdrawal of a service, must entail that the entire County meets the various
conditions referred to in Section 33 (3), if the waste collection service is to
be withdrawn from all households within that area. It is further submitted that
one must consider the particular household in the context of Section 33 ss.
3(b) and (c) when read in conjunction with the provisions of Subsection 2 of
the Section. Counsel for the Applicant stressed that Subsection 2 of the
section, insofar as it permits for an exception to the general rule, pertains
to part of a local authority's function area and is not intended to apply to
the entire of the area in question. It is further submitted that there is no
evidence before the Court that section 33 (3) applied to any part of the Urban
District Council areas in question or to the County Council's administrative
area as a whole. It is further submitted that the result of the decision taken
by the Respondent is that 23,000 householders have been left without any
legitimate or legal waste collection service by reason of the withdrawal of the
service. On behalf of the Applicant a query is raised as to whether section 33
would permit the Respondent to arrange for the collection of waste by
collectors without those collectors holding appropriate EPA licences. It is
further submitted that the condition set out in s. 33 (3) (a) that an adequate
waste collection service be available in the part concerned of the local
authority's functional area has not been complied with. In any event no
arrangement as such was made by the Respondent to provide such a service but
the individual householders were left in a position of seeking to arrange for
same with individual private collectors.
With
regard to the question whether the Applicant's case could be met adequately by
the award of damages, it is submitted on behalf of the Applicant that damages
could not be an adequate remedy in the context of an application before the
Court for relief in the form of a public law remedy. In this regard it was
submitted that the normal considerations in relation to the adequacy of damages
arising at the interlocutory stage of an application for an injunction do not
apply in a case such as this where the relief sought in the action is relief in
the public law context. A further factor submitted to the Court is that by
reason of the action of Wicklow County Council resulting in activity which
arguably is criminal in nature being carried out, namely the collection of
waste by persons without the appropriate licences provided for by law, the
considerations relating to the balance of convenience could not favour the
refusal of the relief in the instant case. It was further submitted insofar as
the relief being sought was mandatory in nature that it should viewed as being
restorative in nature in restoring to the Applicant and other householders in
Wicklow a waste collection service which is not being validly withdrawn. It was
submitted that the granting by the Court of an injunction would preserve the
status quo, which existed up the 27 January last. Counsel further submitted
that there is no obligation on the Applicant to show that she has a
particularly strong case and reference has been made to the decision of Lord
Diplock in the case of American Cyanamid -v- Ethicon Ltd [1975] AC 296, at page
407 where the obligation upon the Applicant is to show that there is a serious
issue to be tried. The Court was referred to the decision of Lynch J. in I.C.C.
Bank Plc -v- Richard Verling & Ors [1995] 1 ILRM 123 at page 130 where he
indicated that where the relief sought was interlocutory relief taking the form
of a mandatory injunction, the court should look for something more from the
Plaintiff than a mere arguable case.
CONCLUSIONS
Applying
the appropriate test set out by the Supreme Court in the case of Campus Oil -v-
Minister for Industry (No 2) [1983] IR88, I am of the opinion that the
Applicant has raised a fair question to be tried. However, I am inclined to
accept the view expressed by Murphy J in the Bula case, to the effect that it
is difficult to make any real assessment of the strength of the case at this
stage of the proceedings.
At
paragraph 4 of his affidavit, Mr Michael O'Leary states that having regard to,
inter alia, the adequacy of the waste collection services available within the
Council's functional area by private commercial operators (who in 1999 had
already provided 50% of households with that service) the estimated cost of the
collection of household waste by the Council; the fact that adequate
arrangements for the disposal waste could be made and the adoption of estimates
without providing for service charges, the County Manager made his order on the
27 January, 2000, the decision in principle having been made as of the 22
November, 1999. One must contrast Mr O'Leary's use of the phrase "could be
made" in regard to an adequate arrangement for the disposal of waste and the
words appearing at section 33 (3)(a) of the Act of 1996 that "an adequate waste
service is available". I am of the opinion that the phrase used by Mr O'Leary
is not in line with the requirement of the section.
While
Mr O'Leary compared the charge of L200 contained in the estimates with charges
for private commercial operators in the range of L90-L156, which included the
provision of a wheely-bin per household, he fails to indicate what opinion was
formed by the Respondent in relation to areas which were not to be covered by
private commercial operatOthers Furthermore, one has to bear in mind that, if
what is stated by the Applicant is true, it does suggest that adequate
arrangements such as the disposal of waste cannot reasonably be made by the
householders of waste in all areas of the county. Nevertheless while I make
these observations in relation to the Applicant's case, it remains that these
are issues, which fall to be determined at the Plenary hearing of this action.
The
Applicant in these proceedings has failed to demonstrate that at a personal
level she has been deprived of a waste collection service and that none is
available to her. Her case seems to relate to other persons. In the context of
the application her position as Applicant is that which must be borne in mind
by the Court notwithstanding the fact that the relief sought in these
proceedings is a public law remedy. Based upon this fact, I am of the opinion
that the balance of convenience favours the Respondent and were the Applicant's
position to be that no service was available to her in circumstances where no
appraisals had been made in relation to the provision of the service for her
personally, the Court would be faced with a different situation. In light of
this consideration I must refuse the Applicant the relief of an interlocutory
injunction at this stage. I feel that in ascertaining the balance of
convenience this Court must take into consideration the Applicant's own
personal position rather than the position of her constituents and other
householders in the County of Wicklow.
