THE SUPREME COURT

No.  267/00

Denham J.
Hardiman J.							
Geoghegan J.

BETWEEN/
CON O’CONNELL
								     APPLICANT/APPELLANT
and

THE LORD MAYOR, ALDERMEN AND BURGESSES
OF THE CITY OF CORK
										RESPONDENTS

[Judgments delivered by Denham J. & Geoghegan J.; Hardiman J. agreed with Geoghegan J.]

Judgment of Mrs. Justice Denham delivered on the 8th day of November 2001.

1.	Application for Judicial Review

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

2.	The High Court

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

“For the purposes of this judgment the Applicant has locus standi.

By order of the Supreme Court dated the 31st day of July, 2000 the Applicant was given leave to apply by way Application for Judicial Review for 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 grounds 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.

In the course of the hearing it was pointed out that Section 38 of the said Act dealt with waste management whereas the collection of household waste was dealt with in Section 33 of the said Act.  It was agreed that no point be taken on this.

I am satisfied that the Corporation has a system in operation; that there is no evidence of any health hazard as alleged and that there is no evidence of breach of the Applicant’s constitutional rights.”

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

3.	Grounds for Judicial Review

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

relief as:

“I am a married man living with my wife at 40 Hillview Estate, Tramore Road in the city borough of Cork.  Some years ago the [respondents] implemented a charge for the collection and disposal of domestic refuse, I myself applied for and was granted a waiver from those charges.  However the [respondents] intend to implement a sticker system on their wheelie bins which will mean that people 

who are not paid up or waivered from refuse charges will not have their refuse collected.  This intenetion (sic) is detailed in a letter to me dated 5th May 2000 and designated exhibit “A”.

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

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

 “ . . .

2.	I say that on Monday the 31st day of July, 2000 I was granted permission by the Supreme Court on appeal from the High Court refusal dated 19th May, 2000 and designated JR 243/2000 for judicial review of the action of the [respondents] in introducing a sticker system on their wheelie bins.

3.	I say that the above mentioned action of the [respondents] which is now in its fourth week is causing a serious and ongoing health hazard to myself, my wife and other citizens.

4.	I say that as already contended there is strong evidence that the [respondents] are acting illegally in implementing this system.

5.	I say that if the [respondents] are not prevented from prevailing with this system the health hazard, which is already extremely high will shortly reach epidemic proportions, since it encourages among other things large scale illegal dumping.”

4.	Submissions

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

Counsel for the respondents, Mr. James Connolly, S.C., agreed that while the Supreme Court order specified s. 38 it seemed that s. 33 of the Waste Management Act, 1996 was the relevant section.  Written and oral submissions were made on behalf of the respondents.
Counsel for the respondents submitted that the applicant did not have the requisite standing to challenge the sticker system.  Counsel made submissions in relation to s. 33 of the Waste Management Act, 1996, s. 42(4) of the Local Government Act, 1994 and The Cork Corporation (Presentation of Waste in Wheel Bins) Bye-Laws, 2000.  It was submitted that the applicant was incorrect in alleging that the learned trial judge misdirected himself in law in declaring that the respondents were not actingultra vires and/or that the learned trial judge was effectively contending that the bye-laws of the local authority took precedence over an Act of the Oireachtas or a right guaranteed under the Constitution.  No such contention was made.  It was submitted that the applicant is incorrect in contending that the learned trial judge was mistaken in declaring that the action of the Corporation in introducing a sticker system was not causing a serious and ongoing health hazard.  It was submitted that the learned trial judge found as a matter of fact that there was no evidence of a serious and ongoing health hazard.  It was further submitted that in no way could the actions taken by Cork Corporation be described as unreasonable.  It was submitted that the applicant’s application is misconceived.

5.	Law

Section 33 of the Waste Management Act, 1996 provides:

“33. - (1)  (a)  Each local authority shall collect, or arrange for the collection of,                            household waste within its functional area.
          . . .	            

	     (6)        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
		      . . . ”	

Section 35 of the Waste Management Act, 1996 provides:

“35.  -  (1)  Whenever a local authority considers that, for the purpose of the proper management of waste or the prevention or control of environmental pollution, it is necessary so to do, it may, subject to subsection (5), make bye-laws -
(a)  requiring a holder of household waste to present such waste or collection by a person collecting waste in accordance with this Part,

(b)  requiring a holder of household or commercial waste who presents such waste for collection as aforesaid (whether pursuant to a requirement of bye-laws under paragraph (a) or not) to so present the waste in a manner specified in the bye-laws.

(2)    A bye-law under subsection (1) shall be made in accordance with, and construed as if it was made under, Part VII of the Local Government Act, 1994.

(3)    Bye-laws under subsection (1) may, without prejudice to the generality of that subsection or of section 37(4) of the Local Government Act, 1994, include provisions specifying -

(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 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,

(h)   any matters consequential on, or incidental to, the foregoing.

. . . ”

Part VII of the Local Government Act, 1994 provides statutory law as to bye-laws by local authorities.  Under s. 37 a local authority has power to make bye-laws:-

“37. - (1)	A local authority may, subject to subsection (8), make a bye-law for or in relation to the use, operation, protection, regulation or management of any land, services, or any other thing whatsoever provided by or under the control or management of the local authority or in relation to any matter connected therewith.

. . .

(4)	    A bye-law may include such provisions as the local authority considers appropriate for its effective application, operation and enforcement and generally to achieve the purposes for which it is made, including -

(a)	its application at all times or at specified times;
(b)	its application throughout the functional area of the local authority or in any specified part of that functional area;
(c)	the prohibition of any activity, matter or thing,
(d)	the prescription of specified standards or requirements for specified matters or things;
(e)	the exception of classes of persons or things from the bye-law either subject to or without compliance with specified conditions;
(f)	the conduct of persons at specified places or in specified circumstances;
(g)	the issue of licences or other authorisations by the local authority subject to or without condition and to have effect permanently or for a specified period;
(h)	the payment of a fee or charge at a specified time by any person in respect of any specified matter governed by a bye-law;
(i)	the specification of a fine being less than £1,000, for a contravention of a specified provision of a bye-law.

. . .”

S. 38 of the Local Government Act, 1994 sets out the procedure for making a bye-law.  

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

“			                BYE-LAWS
MADE BY
THE LORD MAYOR ALDERMEN AND BURGESSES OF CORK
FOR
THE REGULATION OF THE PRESENTATION OF HOUSEHOLD AND
COMMERCIAL WASTE PRESENTED BY PERSONS 
FOR  COLLECTION AND DISPOSAL

Whereas The Lord Mayor Aldermen and Burgesses of Cork, (hereinafter called Cork Corporation) has, by virtue of S. 35 of Waste Management Act, 1996 and by virtue of Part VII of the Local Government Act, 1994, power to make bye-laws requiring a holder of household or commercial waste, who presents such waste for collection pursuant to the provisions of S. 35 of the Waste Management Act, 1996 aforesaid, to so present the waste in a manner specified in bye-laws ANDwhereas Cork Corporation has power to do anything which is ancillary, supplemental, incidental to or consequential upon or necessary to give full effect to, or which will facilitate or is conducive to the performance of its aforesaid statutory functions or which can advantageously be performed by the authority in conjunction with the performance of its statutory functions aforesaid, AND whereas Cork Corporation considers that is necessary to make these bye-laws for the purposes of the proper management of waste and for the prevention and control of environmental pollution

NOW IT BE KNOWN that Cork Corporation has hereby made the following bye-laws:

1.  In these bye-laws, except where the context otherwise requires or as is otherwise defined herein

a)	words and expressions defined in the Waste Management Act, 1996, as amended from time to time, or as defined in any regulations made under the Waste Management Act, 1996, as amended from time to time, shall bear the same meaning as the words and expressions defined in the said legislation or regulations;
. . .

2.	These bye-laws shall operate only within the functional area of Cork Corporation i.e., the area of Cork County Borough.

3.	In any case where Cork Corporation supplies a wheel bin to any person it may charge such person such price therefor as may be fixed from time to time by order of the Cork City Manager and Town Clerk and in default of payment therefor such price may be recovered from the person so supplied by Cork Corporation as a simple contract debt in any court of competent jurisdiction;

4.	In any case where Cork Corporation supplies a micro chip or a wheel bin to any person, whether by way of sale thereof or otherwise, the ownership of such microchip or wheel bin shall vest in the person so supplied as and from the time of delivery thereof.

5.	Every person presenting household or commercial waste for collection and disposal by a service provider shall present such waste wholly contained within a wheel bin and at a convenient place, or, where so designated by Cork Corporation, at a designated collection point.

6.	Every person so presenting household or commercial waste within a wheel bin shall present with the lid of the wheel bin fully closed and, where possible, with the handles of the wheel bin pointed in the direction of the public road;

7.	Every person so presenting predominantly household waste shall present not earlier than 9.00 pm on the evening immediately proceeding (sic) the day arranged for such collection and shall recover the wheel bin not later than 6.00 p.m. on the day of such collection;

8.	Every person so presenting predominantly commercial waste shall present not earlier than 9.00 pm on the evening immediately proceeding (sic) the day arranged for such collection and shall recover the wheel bin not later than 6.00 p.m. on the day of such collection;

9.	Notwithstanding bye-laws 7 and 8 herein, every person so presenting waste within the city centre shall not present earlier than 3.00 am on the day arranged for such collection and shall recover the wheel bin not later than 1.30 p.m. on the day of collection;

10.	  In the case of the presentation of waste which is wholly or predominantly household waste such waste shall be presented wholly contained within a wheel bin which has a capacity of not greater than 240 litres as described in I.S. EN 840 - 1; 1997 Part 1 (unless otherwise agreed in writing with the service provider collecting and disposing of such waste).

11.  A person presenting waste for collection and disposal shall keep the wheel bin, in which such waste is contained, in a good, clean and proper condition and state of repair and use and in a manner that any waste therein may not escape, whether accidentally or negligently or unintentionally or otherwise, or tend or be likely to so escape and so that such wheel bin shall be at all times cleanly, conveniently and safely used.

12.  A person presenting waste for collection and disposal shall keep the wheel bin, in which such waste is contained, in such a condition and state of repair that its lid, wheels and structure and all other parts thereof are safe, intact and fully functioning and that the said wheel bin, is and remains fit for the purpose of safe, orderly and compliant presentation;

13.  A person presenting waste for collection and disposal shall keep the wheel bin, in which such waste is contained, in such a condition and state of repair that any micro chip implanted therein or in any way attaching thereto shall be and remain clean, undamaged, intact, in repair and capable of use for its intended function and shall allow to be replaced by or on behalf of the service provider such micro chip as the need arises.

14.  A person presenting waste for collection and disposal within a wheel bin, as aforesaid, shall, at all reasonable times, allow the service provider collecting and disposing of the said waste, to access the micro chip for the purposes of examining the micro chip and/or for the purposes of reading or otherwise taking any data or other information therefrom;

15.  A person, other than a service provider, shall not remove, damage, destroy, tamper with, render inoperative or otherwise interfere with a micro chip;

16.  Notwithstanding these bye-laws, no toxic waste, industrial waste or agricultural waste shall be presented for collection or disposal nor shall any liquid matter, dangerous or inflammable matter be presented for collection or disposal for which a separate segregated collection may be provided by or with the approval of Cork Corporation.  No matter shall be presented for collection and disposal where the presentation thereof for collection and disposal is contrary to or otherwise not in accordance with the provisions of the general law;

17.  A person shall not, without lawful cause, wilfully obstruct or interfere with any employee of a service provider, or with any authorised person within the meaning of the Waste Management Act, 1996, in the collection and disposal of waste or in the exercise of any other lawful duty, function or contract related to the subject matter of these bye-laws.

18.  Where any wheel bin is or remains placed in a public place during the time arranged for the collection and disposal of waste by the service provider who collects and disposes of such waste, it shall be deemed to have been placed in such public place by that person with the intention that it be presented for collection and disposal of the contents thereof and that the service provider, its servants and agents, has full and irrevocable authority to undertake the collection and disposal thereof and to take such readings, migrations or downloading of information or other data from any micro chip implanted therein or in any way attached thereto;

19.  The holder of any waste presented for collection or disposal shall promptly remove and collect all matter which may spill or escape from the wheel bin so presented, howsoever such matter shall have spilled or escaped;

20.  A person shall not present a wheel bin or waste for collection and disposal otherwise than strictly in accordance with these bye-laws;

21.  A person presenting waste for collection and disposal within a wheel bin, as aforesaid shall comply with whatsoever directions have 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, discset cetera, to be attached or affixed to or other displayed upon such wheel bin.

22.  A person responsible therefor, whether by law or by contract, shall promptly pay to Cork Corporation all charges demanded by it of the said person for services rendered by Cork Corporation to such person in connection with the collection and disposal of waste;

23.  The obligation of Cork Corporation to collect and dispose of any waste permitted to be presented for collection and disposal under these bye-laws from any person is conditional upon, inter alia, compliance by that said person with the provisions of these bye-laws.

24.  A person who presents a wheel bin for collection by a service provider shall allow such service provider, their contractors, servants or agents, to fit, retrofit or replace a microchip thereto and shall be deemed to have permitted every such fitting, retrofitting, or replacement as aforesaid as may have been actually effected at any time by or on behalf of the service provider.

25.  A person who contravenes any provision of the within bye-laws shall be guilty of an offence and is liable on summary conviction in the District Court to a fine not exceeding £1000.00.

26.  Notwithstanding the remedy provided for in paragraph Number 25 of these Bye-Laws, Cork Corporation may, pursuant to S. 41 of the Local Government Act, 1994, serve a fixed payment notice (within the meaning of S. 41 aforesaid) on any person committing an offence by virtue of a contravention of these Bye-Laws.  Such fixed payment notice shall specify the amount of the fixed payment and the period within which the fixed payment must be paid in order to avoid prosecution and shall be in the general form of the notice set out in the First Schedule to the Local Government Act, 1994 (Bye-Laws) Regulations, 1995 and 1999 -S.I. No. 360 of 1995 and S.I. No. 78 of 1999 - (or as provided for in any amending regulations) but subject to such alterations thereto as Cork Corporation may consider appropriate in the case of these Bye-Laws.  The amount of the fixed payment applicable to the fixed payment notice shall be £50.00.

27.  From and after the date of these Bye-Laws all previous bye-laws of Cork Corporation previously then extant (if any) and operable with respects the presentation for collection and disposal of any waste shall be repealed.

28.  The operation of these Bye-Laws shall commence on the 1st day of July, 2000.

29.  These Bye-Laws may be cited as the Cork Corporation (Presentation of Waste in Wheel Bins) Bye-Laws, 2000.”

6.	Decision

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

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

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

A local authority, for the purpose of the proper management of waste or the prevention or control of environmental pollution, may make bye-laws requiring a holder of household waste to present waste in accordance with Part IV of the Act or in the manner specified in the bye-laws: s. 35, Waste Management Act, 1996.  In addition, it is clear that the wording of
s. 35(3) of the Waste Management Act, 1996 envisages that bye-laws may include the matters specified but may be made without prejudice to the generality of s. 35(1) of the Waste Management Act, 1996 or s. 37(4) of the Local Government Act, 1994.  Under that latter Act a  bye-law may include such provision“as the local authority considers appropriate for its effective application, operation and enforcement and generally to achieve the purposes for  which it is made”.  These include: at s. 37(4)(e) the exception of classes of persons or things from the bye-law either subject to or without compliance with specified conditions; at s. 37(4)(g) the issue of licences or other authorisations by the local authority subject to or without condition and to have effect permanently or for a specified period; and at s. 37(4)(h) the payment of a fee or charge at a specified time by any person in respect of any specified matter governed by a bye-law.  These provisions, therefore, apply to the bye-laws in issue.  Further, under s. 35(3) of the Waste Management Act, 1996 such bye-laws may include provisions specifying matters set out in paragraphs (a) to (h) which relate largely to the receptacles, quantity of waste, the location and times of collection, and any matters consequential to or incidental to the foregoing.

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

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

“. . . a local authority may . . . make a bye-law for or in relation to . . . services 
. . . under the control or management of the local authority . . . a bye-law may include such provisions as the local authority considers appropriate for the effective application, operation and enforcement and generally to achieve the purposes for which it is made . . .”

 must be read with the opening words of s. 35(3) of the Waste Management Act, 1996 which refer to the generality of s. 35(1) and s. 37(4) of the Local Government Act, 1994.  S. 35(3) of the Waste Management Act, 1996 specifically states that the bye-laws may include the matters specified (a) to (h).  It is not an exclusive list, nor does it exclude the generality and the matters referred to in S. 37(4) of the Local Government Act, 1994, which themselves are not exclusive.

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

The local authority has a duty to collect the household waste.  However, the local authority has no duty to collect if any provisions of bye-laws under s. 35 regarding the presentation of the waste are not complied with.  While s. 35 provides for the making of bye-laws as to the presentation of waste, a bye-law under s. 35(1) shall be made in accordance with and construed as if it was made under Part VII of the Local Government Act, 1994.  Further the bye-laws under s. 35(1) of the Waste Management Act, 1996 may without prejudice to the generality of that section or s. 37(4) of the Local Government Act, 1994 include specific matters relating to receptacles etc. set out in s. 35(3)(a) to (h).  The generality of the right to make bye-laws in light of the duty as to waste management is broad as is reflected in the words of s. 35(3)(h) being “any matters consequential on, or incidental to, the foregoing”.
The matter of a charge is specifically referred to in s. 37(4)(h) of the Local Government Act, 1994 and consequently a bye-law may be made implementing a charge.  Non-payment is a matter within the generality of the powers given to the respondents.  The duty to collect of the respondents may be set aside if there are minor infringements of presentation by the householders, wheelie bins may not be collected by the respondents for the very simple reasons set out in s. 35(3)(a) to (h) e.g. the colour, construction or maintenance of the waste receptacle.  Equally, it is clearly within the effective operation of the policies that a charge being provided for there may be operational consequences if it is not paid.

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

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

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

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

6.	Conclusion

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

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

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

I would dismiss the appeal.

THE SUPREME COURT

267/00
Denham J.
Hardiman J.
Geoghegan J.

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.