IESC 89 · Supreme Court

Denham J.

Hardiman J.

Geoghegan J.

267/00

THE SUPREME COURT

BETWEEN/

CON O'CONNELL

Plaintiff/Appellant

and

THE LORD MAYOR ALDERMAN AND BURGESSES OF THE CITY OF CORK

Defendants/Respondents

Judgment of Mr. Justice Geoghegan delivered the 8th of November 2001

The applicant is an alderman in Cork Corporation and he campaigned against the introduction of charges for refuse collection in

Cork City. The corporation, however, voted to introduce such charges and the appellant fully accepts that position. However,

with a view to recovery of the charges, Cork Corporation introduced in the appellant's own area a tagging system for "wheelie

bins" which would, effectively, record whether charges had been paid or not and there would be no refuse collection from

householders who had not paid. There are criteria for exempting a householder from having to pay the charges and the

appellant himself has been exempted. Nevertheless, he sought in these proceedings to have the decision to adopt the tagging

system judicially reviewed on the grounds that in introducing such a system Cork Corporation was acting ultra vires the Waste

Management Act, 1996 and additionally or alternatively was interfering with the applicant's constitutional right to bodily

integrity by reason of the nuisance and health hazard which uncollected refuse would cause.

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

J. and McGuinness J.) such leave was granted but confined to seeking an order of certiorari "bringing up to be quashed the

order of the respondents implementing what is described in the material before the court as the sticker system for the

collection of waste on the ground that the implementation by the respondents of that system is in breach of their mandatory

duty under section 38 of the Waste Management Act, 1996 to provide and operate or arrange for the provision and operation

of such facilities as may be necessary for the recovery and disposal of household waste arising within its functional area."

Pursuant to such leave the application was then heard by the High Court (Butler J.). In its statement of opposition the

respondent raised, as a preliminary objection, the appellant's locus standi to challenge the "sticker system", having regard in

particular to the waiver in his favour of refuse charges and also having regard to his membership of the corporation thereby

entitling him to participate in the making of bye-laws on foot of which the "sticker system" was introduced. There were

fourteen other substantive grounds of opposition, but it is not necessary to detail them here. Essentially, the respondent was

disputing that it was in any way in breach of the Waste Management Act, 1996 by operating the sticker or tagging system. It

was further disputing that the sticker system did or could create a health hazard and it denied any interference with the

constitutional right to bodily integrity.

When the application came to be heard by Butler J. it clearly emerged in the course of argument that although the Supreme

Court order had referred to section 38 of the Waste Management Act, 1996 that section was, for the most part, relevant only

to waste management, and that the section most relevant to household waste collection was section 33. It was agreed that no

point would be taken on this and the High Court, primarily, based its decision on the terms of section 33 of the 1996 Act.

The learned High Court judge decided the case against the appellant on substantive grounds indicating that for the purposes of

his judgment he was treating the appellant as having locus standi.

There does not appear to have been any cross-appeal in relation to the locus standi issue though admittedly, one could argue

that there was technically no decision on it by the learned High Court judge. At any rate, I would be quite satisfied that the

appellant, at all material times, had locus standi. In the first place he was an Alderman of Cork Corporation with a public interest

in ensuring that the corporation was not acting unlawfully. But quite apart from his membership of the corporation he lived in

the area in which this system of collection was operated and, therefore, any potential nuisance or health hazard arising from

uncollected refuse as a consequence of non-payment by neighbours would have affected him. In my view, therefore, on both of

those grounds he had locus standi.

I would not be satisfied that an interference with the constitutional right to bodily integrity has been established but this was

not a ground for judicial review permitted by the order of this court. The Court is, therefore, only concerned with the question

of whether the "sticker system" is intra vires, or in other words whether the respondent is exempt from collecting or arranging

for collection of household waste in the absence of the appropriate sticker.

Section 33(1)(a) imposes on each local authority a general obligation to "collect, or arrange for the collection of, household

waste within its functional area". Subsection (2) of the same section provides that 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. None of those conditions apply in this case and,

therefore, nothing turns on subsection (3). The limitation on the general obligation relied upon by the respondent in this case is

contained in subsection (6) of the same section. The relevant part of that subsection reads as follows:-

"Notwithstanding any other provision of this Act, a local authority shall be under no duty to collect, or arrange for the

collection of, waste from any person -

(a) if any provision of bye-laws under section 35 regarding the presentation of the waste for collection is not

complied with, or

(b) ..."

The relevant bye-law in this connection is bye-law number 21 of the Cork Corporation (Presentation of Waste in Wheelie Bins)

Bye-Law 2000 and reads as follows:-

"A person presenting waste for collection and disposal within a wheel bin as aforesaid, shall comply with

whatsoever directions had been given to such person or given generally by public notice or otherwise, by the

service provider providing the service of collection and disposal for such person, as to the identification marks or

other marks, badges, labels, tags, discs et cetera, to be attached or affixed to or other displayed upon such wheel

bin."

In paragraph 21 of the affidavit of Jeremiah T. Moynihan, acting Assistant City Manager of Cork Corporation, sworn the 30th of

August, 2000, the deponent swears as follows:-

"Notice of Cork Corporation's intention to remove refuse only from bins displaying such stickers and to the availability of

a waiver system for persons in lower income groups was published in the press on or about the 16th of June 2000.

Previously account holders were notified on the 12th of November 1999 and on the 12th of April 2000 of Cork

Corporation's intention to remove refuse only from bins displaying such a sticker."

Bye-law 22 contains the general obligation to pay for the refuse collection and bye-law 23 purports to provide that the

obligation of Cork Corporation to collect and dispose of any waste permitted to be presented for collection and disposal under

the bye-laws from any person is conditional upon inter alia compliance by that person with the provisions of the bye-laws.

The respondent's case is that those bye-laws are made under section 35 and that they provide for the sticker system. This

argument can only be well founded if the bye-law providing for the sticker system can be considered as a bye-law "regarding

the presentation of the waste for collection". In a strictly literal sense it undoubtedly is because unless the appropriate tag

indicating payment is attached to the wheelie bin when it is presented, the bye-law is breached whereupon as the argument

runs, the obligation to collect such household waste no longer exists. But in my view, this is clearly to distort the intended

meaning of the expression "regarding the presentation of the waste for collection". In modern times waste collection, even from

households, has become in many parts of the world and in many parts of Ireland highly sophisticated. It is no longer necessarily

a case of putting out the waste in any kind of container and in any kind of manner. A particular type of wheelie bin may be

required and there may also be requirements for separating particular types of waste, perhaps by the use of different coloured

containers. This is what is clearly envisaged by the expression "the presentation of the waste". I am borne out in this view by

the provisions of section 35(3) of the 1996 Act. That subsection provides for the making of bye-laws which could include a

number of specified provisions. While admittedly the last of these reads "any matters consequential on, or incidental to the

foregoing", it is clear that that must be interpreted in an eiusdem generis sense. The specified matters read as follows:-

"(a) That waste shall only be placed for collection in receptacles of a particular kind and that different waste shall be

placed in different receptacles,

(b) the quantity of waste which may or may not be placed in any receptacle,

(c) the waste, or the mixtures of waste, which may or may not be placed in a receptacle,

(d) the measures or precautions to be taken where the particular waste, or mixtures thereof, is or are placed in a

receptacle,

(e) the size, colour, construction or maintenance of receptacles,

(f) the location at which the waste is to be made available for collection,

(g) times during which the waste is to be made available for collection".

It is obvious that each of these requirements relates to presentation and, in my view, that was what was clearly contemplated

by the use of the word "presentation" in section 33. It was never intended that the power to make bye-laws, the breach of

which would exempt the corporation could include a so-called presentation type bye-law the substantive purpose of which was

to facilitate the collection of charges. Failure to comply with the sticker system therefore does not exempt the corporation from

its general obligation under section 33(1)(a). This does not mean, of course, that the householder is not obliged to make the

required payment. But if he defaults, the ordinary debt collection remedies are available to the defendant.

I would allow the appeal, and I would substitute for the order of the High Court an order granting, by way of judicial review, an

order of certiorari bringing up to be quashed the decision and order of the respondents implementing what is described in the

material before this court as the "sticker system" for the collection of waste.