HC126 de Burca v. Wicklow County Council [2002] IEHC 126 (22 March 2002)


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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> de Burca v. Wicklow County Council [2002] IEHC 126 (22 March 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/126.html
Cite as: [2002] IEHC 126

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    THE HIGH COURT
    (JUDICIAL REVIEW)
    No. 42 JR 2000
    BETWEEN
    DEIRDRE DE BURCA
    APPLICANT
    AND
    THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW
    RESPONDENT
    JUDGMENT by Mr. Justice O'Caoimh delivered the 22nd day of March, 2002
    By order of the High Court of the 7th of February 2000 the applicant was given leave to apply by way of an application for judicial review for the reliefs of
    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 the 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, authorization 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 required by 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 27th day of January 2000 to cease its household refuse collection service with effect from the close of business on Friday, 28th January, 2000.

    The grounds upon which the relief is sought 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 of 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 Wicklow, for planning, organisation, authorisation and supervision of waste disposal operations pursuant to Council Directive 91151 /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 Wicklow, for planning, organisation, authorisation and supervisions of waste disposal operations pursuant to Council Directive 91/56/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.
    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 of 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 estimate 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 reasonable by made by 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 abduction of the respondent's responsibility for the planning, organisation, authorisation and supervision 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 proceedings herein challenge in essence the decision of the respondent to privatise its waste collection services from the 28th of January 2000. The applicant is an elected member of Wicklow County Council who has expressed the view in these proceedings that as far as is possible local authorities should carry out the collection of household waste so there can be accountability, a democratic dimension and a commitment to meeting the needs of households rather than a private commercial imperative. The applicant relies upon the provisions of the European Communities (Waste) Regulations 1979 in support of a case that they impose a duty on the respondent to prepare a waste management plan which shall set forth a strategy in which the policy objectives of the authority are determined. As an elected member she believes 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.
    The Applicant complains that since the passing of the regulations in 1979 that a period of over twenty years have elapsed and that no waste management plan has been prepared. These dates for draft plans have come and gone and that a draft plan was produced in 1982 but it was never adopted. She points out that a draft plan was presented to the elected members in 1999 but again that this plan was not adopted.
    The applicant complains that the draft plan presented in 1999 was aspirational and discussive in its nature and fell far short of the requirements of the regulations of 1979 and the Council Directive 75/442 EEC as amended by Council Directive 1991/156 EEC to whose provisions the regulations purport to give effect. The applicant further complains that the draft document also fell short of the requirements of the Waste Management Act, 1996 in failing to address specific matters which she contends were required to be addressed. She complains that the draft plan presented options to the executive of the Council. The applicant complains that without a Waste Management Plan the respondent had no idea how much waste it currently produces, from were it originates, how it should be collected and how to dispose of it. She states that effective waste management is crucial to environmental management and sustainable development. In this context she states that providing for the proper collection of waste is obviously a vital part of waste managment.
    The applicant has expressed the view that in the light of householders having to pay significant charges for private collection that this will encourage undesirable dumping and the burning of waste for householders. It was stated by the applicant 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 Wicklow.
    The applicant says that as no waste collection permit has been granted by Wicklow County Council that no person other than the respondent can collect waste in County Wicklow. On this basis she says that she believes that it may be illegal for householders to transfer their waste to anybody other than the respondent.
    The applicant details the background to the adoption of the decision to privatise the waste collection and refers to the fact that at an estimates meeting of the elected members of Wicklow County Council it was proposed that a household waste collection charge be increased to £200 per annum but that this motion was defeated in circumstances where she believes that this was the intention as a justification for the abandonment of the service provided by Wicklow County Council. At the time of the making of the decision, Wicklow County Council notified householders that they should make alternative arrangements with private operators with effect from the 1st of January, 2000. At the time of instituting these proceedings the applicant expressed the view that private collectors would not be able to cope with the increased amount for the service in the short term. She expressed the view that the provision of a list of names and addresses of collectors of waste to have does not constitute the arrangement of services for the householders but is instead an application of responsibility without any consideration for the consequences of the decision. She further expresses the view that there were parts of County Wicklow in which there would be no waste collection service and that this certainly applies to many more remote rural parts. The applicant further expressed the view that the respondent has not decided that the cost of collecting the particular household waste was unreasonably high but rather made an order without making any or any adequate inquiry into the cost on the basis required by Section 33(3)(b) of the Waste Management Act, 1996.
    The applicant says 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 inquiry was made and no evidence was put before the respondent as to alternative arrangements that could be made by each and every one of more than 10,000 households left without a waste collection services.
    A statement of opposition has been filed on behalf of the respondent in which the following grounds are relied upon.
    1. The respondent has prepared and adopted a waste management plan in accordance with the European Communities (Waste) Regulations 1979 and the Waste Management Act, 1996.
    2. The respondent was and is complying with Council Directive 91/156/EEC including articles 47 and 8 thereof.
    3. The respondent is complying with all of the provisions of section 33 of the Waste Management Act, 1996 and the respondent is not required to collect or arrange for the collection of household waste within its functional area by reason of the fact that one or more of the conditions mentioned in subsection (3) of section 33 applies to the functional area of the respondent.
    4. The respondent was not and is not in breach of section 33 of the Waste Management Act, 1996 or any part thereof.
    5. The decision of the respondent made on the 27th of January, 2000 was and is a valid and a subsisting decision made in compliance with the requirements of the Waste Management Act, 1996.
    6. The respondent's decision of the 27th January, 2000 was not predicted on decisions of the elected members of the respondent's council nor did any of the alleged decisions of the elected members of the respondent council authorise a breach of section 33 of the Waste Management Act, 1996 nor was there any breach of the said section or any part thereof.
    An initial affidavit was sworn by Michael O'Leary, Senior Executive Engineer, employed by the respondent on the 17th February, 2000. In his affidavit Mr. O'Leary sets out the background to the respondent's decision which is the subject matter of these proceedings. He says that 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. He points out that 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 Wheelbin Services, Cobb and Whelan. On this basis he says that as of 1999 approximately 50% of the households within the functional area of the Council were provided with a waste collection service by private commercial operators. Mr. O'Leary points out that in the course of the preparation of the Council's estimates for the year 1999 the County Manager proposed an increase in the annual household refuse charge from £65 to £206. He says that even with this level of charge, the Council was still providing a subvention of approximately £300,000 towards the estimated cost of the collection of the waste concerned. Following a lengthy debate, the Council eventually adopted a charge of £95 per household in 1999.
    Mr. O'Leary says that recognising that the continued subvention of waste collection was unsustainable in the long term (arid 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 operators. In May of 1999 the Council placed an advertisement calling for expressions of interest from companies interested in providing waste services to the Council then currently served by Wicklow County Council together with Bray andArklow Urban District Councils. It was stated that this was part of the review of the draft Waste Management Plan for County Wicklow at the time which was then being prepared. Mr. O'Leary points out that in all some thirteen submissions were received from private commercials 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. Mr. O'Leary says that in 1999 the Council lost approximately 2,000 households to the private sector. He says that in due course the Council subsequently prepared its draft estimates for the year 2000. These estimates provided for a refuse service charge of £200 per household (i.e. those households using the Council's waste collection service) which charge he states was in accordance with Government and EU policy reflecting the real cost of the service provided. He says that the charge of £200 compared with the charges by private commercial operators in the range of £90 to £156 (which includes the provision of a wheeled bin) per household. He says that in addition the private commercial operators were also offering a bag collection service at the cost of £1.50 per bag. He stated that at that time there were approximately ten commercial operators competing for the service.
    On the 22nd November, 1999 the elected members of the Council adopted estimates without providing for a household waste collection charge to be imposed for the service. Mr O'Leary points out that 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. It appears that the applicant took part in these various meetings, and on this basis Mr. O'Leary asserts that she has been aware of the import of the failure of the elected members to adopt the estimates without a service charge has delayed in the seeking of the relief herein and has acquiesced in the steps taking by the Council's executive in the implementation of the privatisation of a waste collection service since that date on the 22nd November, 1999. Mr. O'Leary says 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 costs of the collection of household waste by the Council, the fact that adequate arrangements 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 of the 27th January., 2000, the decision in principal having been made as of the 22nd November, 1999. He says that the then 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. On this basis Mr. O'Leary says that the Council is not obliged to collect or arrange for the collection of household waste within the functional area because one or more of the conditions contained in Section 33(3) of the Waste Management Act, 1996 apply to the entire of the Council's functional area and to the household waste therein. However, Mr. O'Leary denies that the Council has abandoned all responsibility for the household waste collection. He says that the continuation of the Council's service in the year 2000 would have been more financially onerous on householders within the functional area. He says that the Council fully encourages recycling and will, under regulations then to be made within the coming months, be in a position to require recycling as part of the waste regime under the regulations to be made.
    Mr. O'Leary denies that there is any evidence before the Council of any increase in illegal or undesirable dumping or burning of waste by householders and says that no evidence has been adduced to support such a contention. Mr. O'Leary says that the Council does not accept that it has in any way abdicated its responsibilities under the Waste Management Act or that, in exercising its statutory obligations, the Council is advising householders to commit a criminal offence and he says that no evidence has been adduced to support such a contention. Mr. O'Leary says 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 the private commercial operators are now offering a more comprehensive service to that provided by the Council. He says that the Council has no evidence of any increase in illegal dumping or burning or of any accumulation of rubbish on streets in a manner contended for by the applicant. At time of swearing the affidavit Mr. O'Leary stated that there was then 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 could be made by the householders given the comprehensive service being offered by private commercial operators. A number of other matters dealt with by Mr. O'Leary are more properly the subject matter of legal submissions and are not :referred to at this stage.
    The applicant swore a supplemental affidavit in response to the affidavit of Mr. O'Leary of the 17th February, 2000. She expressed the view that it was an indisputable fact that the private waste collectors have not the capacity to take over the collection of household waste abandoned by the respondent. The applicant says that no waste collector operating in County Wicklow had received a permit issued by the respondent authorising it to dispose of waste pursuant to the European Communities (Waste) Regulations, 1979. She says that only Noble Waste Disposal Limited is authorised under and in accordance with the Environmental Protection Agency Act, 1992. She says 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 points out that some of these collectors have been recommended to the people by the respondent. She says that others have mushroomed into existence never having been heard of before. She says that these collectors are not supervised, regulated or inspected by the respondent despite it's duties under both the Waste Management Act, 1996 and the Directive of 1991. She says that these collectors have not received authorisation under the Environmental Protection Agency Act, 1992 or the Waste Management Act, 1996.
    The applicant says that contrary to the figure 20,000 households being in the functional area of the respondent that in fact by reference to a document exhibited that the correct figure is 31,263 households. The applicant says that if Wicklow County Council 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 says that instead Wicklow County Council permits people to simply not pay the charge when no social requirement exists in the particular case. She asserts that this in complete dereliction of the "polluter pays" rational underpinning the Waste Directive and the Irish legislation implementing that Directive.
    The applicant says in reference to the adoption of the estimates that the,elected members could not have decided to privatise the waste collection service as this decision could only be made by them in the context of making, reviewing, replacing or varying a waste management plan. She points out that the elected members decided not to levy a service charge in relation to waste collection and such decision can be justified as pending the adoption of a waste management plan. The financing of the then existing waste collection service could have been met by the collection of the £900,000 outstanding in respect of service charges to Wicklow County Council. She states that rates and similar charges are collected'. on a 98% collection basis but waste collection charges are only collected in recent years on 68% basis.
    The applicant says that the decision of the respondent has in effect usurped the function of the elected members in making a waste management plan and that the collection of waste would be a vital aspect of such plan. She says that the executive of Wicklow County Council have evinced a desire to abandon the collection of waste prior to the adoption of a waste management plan by the elected members. It is on this basis she says that a decision was rushed through without heed to the consequences, legal or practical, in the manner alleged by her.
    The applicant questions the existence of any decision in principle having been made on the 22nd November, 1999 and says that the executive cannot make a decision other than by order and that an order was not made until the 27th January, 2000: She says that the use of the word "privatise" in the context of this case is a misnomer as what the Council has done is simply to abandon the service formerly provided without any or any adequate service being in place to meet the requirements of the householders of the County. At the time of swearing of this affidavit the applicant questioned the position then pertaining in the county and asserted that a number of households were not being served. She questioned the assertions that private commercial operators were then offering a more comprehensive service than that previously provided by the Council. She said that the service then being provided by the collectors was incomplete and that many areas of households had not been able to obtain a service.
    A further affidavit was sworn by Mr. O'Leary in verification of the statement of grounds of opposition on the 14th July, 2000 in which he also referred to his earlier affidavits. He says that there was an adequate waste collection service available in the Council's functional area. He says that the Council is satisfied that adequate arrangements for the disposal of waste can reasonably be made by householders and that a comprehensive service is being offered by private commercial operators for the collection of waste within the entire functional area of the Council. He denies any increase in illegal or undesirable dumping or burning of waste as a been any problem of rubbish accumulating other than one associated with an industrial dispute which took place in the Bray urban area in January of the year 2000. He concedes that minor occurrences of illegal dumping or burning of waste has occurred but denies that there has been any discernible increase in this regard since the 27th January, 2000.
    Dealing with the preparation of the waste management plan Mr. O'Leary pointed out that in or about June of 1998 the Council sought submissions from consultants for the purposes of preparing a waste management plan for its functional area. He says that the Council also placed a notice in the local press advising the public of its intention to prepare a plan and inviting representations and submissions. In January, 1999 the Council appointed consulting engineers to prepare a waste management plan. On the 1st March, 1999 the consultants briefed the elected members of Wicklow Council and the elected members were again briefed on the 10th May and 12th June, 1999. He says that a further notice inviting submissions from individuals and organisations was published on the 11th March, 1999 and says that a draft Waste Management Plan and an executive summary of this were presented to the elected n-,,,embers of the Council on the 13th September, 1999. It appears that the draft plan was put on public display and copies were sent to specify the bodies in a prescribed manner. He points out that a further notice was place in the local newspaper in the prescribed manner. He also says that a newsletter outlining the thrust of the draft plan was circulated to all householders within the functional area of the county. This appears to have taken place in October, 1999. He says that following the receipt of a number of submissions a document entitled "County Wicklow Waste Management Plan, Revisions to Draft Plan, December, 1999" was presented to the elected members of the Council on the 13th December, 1999. He says that the making of the waste management plan was again brought to the elected members of the Council on the 10th April and the 17th April, 2000 and, with minor amendments, the elected members of the Council voted to adopt the County Wicklow waste management plan with an amendment that no thermal treatment initiatives be taken in the County without prior agreement of not less than two thirds of the majority of the Council present and voting in favour, and a further amendment that if thermal treatment became available in another county, Wicklow County Council would avail of it.
    Based upon this state of affairs Mr. O'Leary says that he believes that the Council was and is complying with the requirements of Part II of the Waste Management Act, 1996 and has made a waste management plan in accordance with the provisions thereof. He also says that having regard to these facts that much of what the applicant seeks is now moot. It appears to be conceded by Mr. O'Leary that the adoption of the waste management plan is a reserved function of the elected member of the Council.
    Council for the applicant has referred this Court to various provisions of law upon which reliance is placed by the applicant in bringing this application. In the first place reference was made to Council Directive 75/442/EEC (The 1975 Waste Directive). Particular reliance was placed by the applicant upon the provisions of Articles 5 and 6 of the 1975 Waste Directive. Article 5 as originally enacted provided as follows:- "Member states shall establish or designate the competent authority or authorities to be responsible, in a given zone, for the planning, organisation, authorisation and supervision of waste disposal operations".
    Article 6 provided as follows:-
    "The competent authority or authorities referred to in Article 5 shall be required to draw up as soon as possible one or several plans relating to, in particular - the type and quaritity of waste to be disposed of
    - General technical requirements
    - Suitable disposal sites
    - Any special arrangements for particular wastes.
    The plan or plans may, for example, cover:- the natural or legal persons empowered to carry out the disposal of waste, the estimated costs of the disposal operations, appropriate measures to encourage rationalisation, of the collection, sorting and treatment of waste".
    Article 7 of the 1975 Directive provides as follows:-
    "Member 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 a disposal undertaking, - or disposes of its himself in accordance with the measures taken pursuant to Article 4.
    The 1975 Waste Directive was implemented by the European Communities (Waste) Regulations, 1979 which required County Councils "as soon as may be" to prepare a plan relating; to certain matters. This duty continued until the revocation of the 1979 Regulations on the 20th May, 1998. Section 6(2) of the Waste Management Act, 1996 provides that each statutory instrument mentioned in column (2) of Part II of the Fifth Schedule of the said Act is revoked to the extent specified in column (3) of the said Part. The European Communities (Waste) Regulations, 1979 are mentioned in column 2, and column 3 indicates that "the whole regulations shall be revoked on the commencement of section 6(2). Section 6(2) came into operation on the 20th May, 1998 pursuant to the operation of the provision in section 1(2) of the Act of 1976. The 1975 Waste Directive was amended by Council Directive 91/156/EEC (the 1991 Waste Directive). This directive replaced articles 1 to 12 of the 1975 Directive. At Article 1 it is provided that the holder of waste shall mean the producer of the waste or the natural or legal person who is in possession of it. At Article 6 of this directive is provided as follows:-
    "Member states shall establish or designate the competent authority or authorities to be responsible for the implementation of this directive.
    At Article 7 it is provided as follows:
    1. In order to attain the objectives referred to in Articles 3, 4 and 5 the competent authority or authorities referred to in Article 6 shall be required to draw as soon as possible one or more waste management plans. Such plans shall relate in particular to:
    The type, quantity and origin of waste to be recovered or disposed of,
    General technical requirements,
    Any special arrangements for particular wastes,
    Suitable disposal sites or installations. Such plans, may, for example, cover:
    The natural or legal persons empowered to carry out the management of waste,
    The estimated costs of the recovery and disposal operations,
    The appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste.
    2. Member States shall collaborate as appropriate with other Member States concerned and the Commission to draw up such plans. They shall notify the Commission thereof.
    3. Member States may take the measures necessary to prevent movements of ways which are not in accordance with their waste management plan. They shall inform the Commission and the Member States of any such measures.
    At Article 8 of the directive it is provided as follows:-
    "Member States shall take the necessary measures to ensure that any holder of waste:
    - has it handled by private or public waste collector or by an undertaking which carries out the operations listed in Annex 2 A or B, or recovers or disposes of itself in accordance with the provisions of this directive.
    Article 9 provides as follows
    "1. For the purposes of implementing articles 6 and 7, in the establishment or undertaking which carries out the operations specified in annex 2 A must obtain a permit from the competent authority referred to in Article 6.
    Such a permit shall cover:
    the types and quantities of waste,
    the technical requirements,
    the security precautions to be taken,
    the disposal site,
    the treatment method.
    The 1975 directive was implemented in this State by the provisions of the European Communities (Waste) Regulations, 1979 being S.I. 390 of 1979. At Article 2 of these regulations an `authorised person' is defined to mean a person appointed by a local authority or by the Minister for the Environment to be an authorised person for the purposes of these regulations. A "public waste collector" is defined to mean a local authority other sanitary authority for the purposes of the Local Government (Sanitary Services) Acts, 1878 to 1964. The words "waste operation" is defined to mean any operation comprised in the disposal of waste. At Article 3 of these regulations it is provided as follows:-
    "(1) a holder of waste –
    (a) 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 regulation, or
    (b) if he himself disposes of the waste, shall not do so in a manner which would endanger human health or harm the environment or, in particular, which would –
    (i) create risk to water, air, soil, plants or animals,
    (ii) cause a nuisance through noise or odours, or
    (iii) adversely affect the countryside or places of special interest.
    At Article 4 it is provided
    "(1) Each local authority shall be responsible for the planning, organisation, authorisation and supervision of waste operations in their area.
    (2) Each local authority shall as soon as may be prepare a plan indicating –
    (a) the type and quantity of waste for disposal
    (b) the general technical requirements,
    (c) suitable disposal sites and
    (d) any special arrangements for particular wastes.
    (3) A plan under this Article may include measures to encourage rationalisation of the collection, sorting and treatment of waste, estimated costs of disposal operations, or such other matters as the local authority may consider appropriate having regard to the purposes of the Council Directive.
    At Article 5 of these regulations it is provided as follows:
    "(1) A local authority may issue a permit to any person for treating, tipping or storing waste in their area on behalf of another person
    (2) A permit under this Article shall specify the type and quantity of waste to which it applies and shall be conditional on compliance with any general technical requirements and precautions to be taken, specified in the permit and shall be conditional also on the making available to the local authority of such information as they may request in relation to the origin, destination, treatment, type and quantity of the waste.
    (3) A person other than a public waste collector shall not carry out the treating, storing or tipping of waste on behalf of another person without an appropriate permit or in a manner contravening the term of such permit."
    In Article 6 paragraph (1) it is provided as follows
    (1). The holder of a permit under Article 5 and, if the local authority so directs by notice in writing, any other person transporting, collecting, storing, tipping or treating their own waste or collecting or transporting waste on behalf of another person shall maintain a register of such operations showing the types and quantities of all waste handled and its origin, treatment and destination and shall make the register available for examination or provide any relevant information when so requested by any authorised person.
    These regulations were revoked on the 20th May, 1998 pursuant to section 6(2) of the Waste Management Act, 1996.
    The Waste Management Act, 1996 was signed by the President on the 20th May, 1996. It is provided in Section 1 subsection (2) as follows:-
    "(2) This Act shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefore either generally or with reference to a particular purpose or provision and different days may be so fixed for different purposes and different provisions:
    Provided that if immediately before the expiration of the period of two years from the date of passing of this Act, this Act has not been commenced by an order under this section or any provision or provisions thereof remains or remain to be commenced by such an order (including as respects a particular purpose), this Act or the said provision or provisions shall come into operation (or, in the case of such provision or provisions that remain to be commenced for a particular purpose, shall come into operation for that purpose) upon the expiration of the said period."
    It is by reference to this subsection that the repeals effected by section 6 (2) of the Act came into force on the 20th May, 1998 being a period two years after the passing of the Act.
    By reference to the 1991 Waste Directive it is submitted that a Waste Management Plan must come first and other items fall to be implemented within the blue print of the plan or plans.
    Under the provisions of section 2 of the Waste Management Act, 1996 it can be seen that the purpose for which that Act was enacted was to give effect, inter alia, to the Waste Directive of 1975 and the subsequent Directive of 1991. Section 4 of the Act defines `waste' and `hazardous waste'. At subsection 3 `disposal' in relation to waste is defined to include any of the activities specified in the third schedule and "waste disposal activity" shall be construed accordingly.
    In section 5 of the Act the term "authorised waste collector" is defined to mean a holder of a waste collection permit that is in force. The word "collection" is defined to mean in relation to waste to the gathering, sorting or mixing of waste for the purpose of it being transported, and includes the transport of waste and the acceptance of control of waste. The term "holder" is defined to mean in relation to waste the owner, person in charge, or any other person having, for the time being, possession or control, of the waste. The term "household waste" means waste produced within the curtilage of a building or self contained part of a building used for the purposes of living accommodation. The term "municipal waste" means household waste as well as commercial and other waste which, because of its nature and composition, is similar to household waste. The term "prescribed" means prescribed by regulations made by the Minster under this Act.
    Part II of the Act provides for waste management planning. Section 22 provides, inter alia, that each local authority shall, not later than such date as may be prescribed, make a plan (in the this Act referred to a "waste management plan") with regard to - the prevention, minimisation, collection of, recovery and disposal of non hazardous waste within the functional area.
    Council contrasts the wording in Article 6 of the Waste Directive of 1975 with a requirement to draw up a plan was good `as soon as possible' and where similar wording appears in Article 7 of the 1991 Directive with the position appearing in the Act where the requirement was to draw up the plan not later than such date as may be prescribed. Subsection 10 of section 22 indicates that the making, review, variation or replacement of a Waste Management Plan shall be a reserved function.
    Part IV of the Act of 1996 is entitled `Holding, Collection and Movement of Waste'. Section 32 of the Act provides, inter alia, as follows
    "(1). A person shall not hold, transport, recover or dispose of waste in a manor that causes or is likely to cause environmental pollution.
    (2). A person shall 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. "At: subsection (4) it is provided: The Minister made by regulations ... (c) provide that subsection 2 shall not apply in specified circumstances."
    At subsection (5) it is provided as follows:
    "(5) In this section "an appropriate person" means the local authority, the corperation of a borough that is not a county borough, the council of an urban district, or a person otherwise authorised and in accordance with this Act or the Act of 1992 to undertake the collection, recovery or disposal of the class of waste in question".
    Subsection (6) of the section provides for an offence in the case of a contravention of subsections (1) (2) or (3) or a provision of regulations under subsection (4).
    It is submitted by reference to this section that if one is the holder of waste, one must not give it to anyone other than a local authority or an urban district council or an "authorised person" under the Waste Management Act, 1996 or the Environmental Protection Agency Act, 1992. It is submitted that to give ones waste to an non authorised collector renders one liable to a criminal offence. It is further submitted that if a householder transfers waste to an unauthorised collector of waste then the householder and the unauthorised collector remain holders of the waste until it is transferred to the control of a local authority or an "authorised person". It is submitted that, if a householder holds household waste, the local authority is under a general duty to collect same. It is further submitted that if a householder transfers household waste to an unauthorised person the householder and the unauthorised person remain holders and the local authority remains under a statutory duty to collect this waste. It is submitted that section 32 subsection 1(a) amounts to an express statutory requirement which arises under the terms of the Waste Directives. It is submitted that a local authority may collect waste or contract with authorised persons to collect such waste and the local authority may pay for it. It is submitted that the position of a corporation of a borough other than a county borough or the council of an urban district is to be contrasted to the position of a local authority generally arising under section 33 (1) (a). Section 33 (1) (a) creates a clear obligation where the use of the word `shall' appears while subsection 1B uses the term `may' and it is permissive nature. Section 33 provides, inter alia, as follows:
    (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 pat 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 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 applicant that the respondent local authority has abdicated its statutory duty. It is submitted that the derogation's arising in section 33 must be in light of the: conditions referred to in subsection (3) thereof. It is submitted that if the conditions do not apply for derogation then the local authority which refuses to collect household was is acting ultra vires. With regard to the conditions referred to in Section 33 (3) it is submitted'. that the derogation at (a) relates to parts of local authority areas while (b) and (c) relate: to household waste generally where certain conditions are satisfied. It is submitted that the Court must view these conditions as of the date when the decision impugned in these proceedings was made. It is submitted that an unauthorised service can never amount to an adequate service in the context of paragraph (a) of the subsection. In this regard it is submitted that this must be a correct interpretation of the Act because availing of an unauthorised service would render the householders liable to breaching the terms of the Act of 1996 itself.
    With regard to the condition at sub paragraph (b), it is submitted that this involves an identification of the waste concerned and it involves estimating the cost of collecting it and establishing if in regard to the estimate the cost of collecting the same would be unreasonably high. With regard to sub paragraph (c) it is submitted that this refers to `disposal' as oppose to `collection' and relates to a defined category of waste. It is submitted that this involves looking at the arrangements for disposal and ascertaining whether adequate arrangements exist for the disposal of such waste. It is further submitted that if the arrangements involve giving the waste to an unlicensed or unauthorised person these conditions can never be considered to be adequate.
    It was submitted by counsel on behalf of the applicant (1) having regard to the overall scheme of the Act that the respondent is a competent authority in its particular functional area, (2) it has the serious responsibility to perform part of the overall mission of management of waste within this area and (3) that it is under the general duty to collect this waste. It is submitted that the respondent has a duty to prepare a waste plan involving the assessment of the waste, what is being collected and the effectiveness of the collection, the manner of the disposal of waste and whether this was effective. It is submitted that the plan must include how the local authority proposes to discharge its duty to collect household waste. It is submitted that the plan may include reference to the fact that in part of the functional area a collection service may exist which is adequate or the plan may identify certain waste such as that in remote farms where the costs of collection of same would in opinion of the authority be unreasonably high. The local authority may identify a situation where adequate arrangements exist for the disposal of waste.
    It is submitted that if the local authority seeks to delegate from its statutory duty tha: it would be expected that it would select which one or more of the delegations it seeks to rely upon namely whether those at (a) or (b) or (c) as the case may be, appearing in s section 33 (3) of the Act. It is submitted that one would expect that the delegation being availed of would be clearly identified and that if a challenge was mounted that one could identify which derogation was being availed of in the context of such a challenge. It is submitted that in the instant case nothing has been identified in the documentation showing which of the derogations, if any, the local authority decided to avail of at the time of making its decision the subject matter of these proceedings. It is submitted that no delegation is recorded in the manager's orders. It is submitted that what appears to be the case is that the prime motivating factor was not any particular derogation but was one by reference to the fact that the council members had passed an estimate without providing for any levy to be paid by householders for the collection of waste. It is submitted that it was in this light that the local authority decided not to perform its statutory duty at all. It is submitted that there is apparent confusion on the part of the respondent as to what decision was made, the nature of the decision and who in fact made it. It is submitted at the same time that the respondent local authority has ceased to collect waste in the entire of its functional area and that it has effectively abandoned its duty by reference to the failure of the members to adopt levying the estimate.
    Section 34 of the Act deals with waste collection permits. Section 34 subsections (1) to (4) provides as follows:
    "(1) (a) Subject to paragraph (b), a person other than a local authority shall not, for the purposes 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 thatparagraph (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)
    (c) A person who contravenes paragraph (a) or any requirement of regulations under paragraph (b) shall be guilty of an offence.
    (2) (a) The Agency may give such guidance or directions to a local authority or local authorities generally as it considers appropriate in relation to the control to be exercised or the measures to be taken by it or them of, or with regard to, the collection of hazardous waste by persons in its or their functional area or areas or the grant by it or them of waste collection permits in respect of such waste.
    (b)A local authority shall have regard to any guidance and comply with any direction given to it underparagraph (a) in performing any of its functions under this section or section 33, as appropriate.
    (3) On an application being made to a local authority for the grant of a permit under this section, the authority may decide to grant the permit, subject to, or without, conditions or to refuse to grant the permit.
    (4) A local authority shall not grant a waste collection permit unless it is satisfied that the activity in question would not, if carried on in accordance with such conditions as may be attached to the permit, cause environmental pollution, and that the grant of the permit is in accordance with any relevant provisions of that authority's waste management plan and the hazardous waste management plan, as the case may be.
    (5) (a) Without prejudice to subsections (3), (4) and (6), an application for a waste collection permit may be refused, or a waste collection permit may be revoked, if the applicant, permit holder or any other relevant person has been convicted of an offence under this Act prescribed for the purposes of this subsection, or of an offence under any other enactment, or instrument under an enactment, as may be so prescribed.
    (b) The reference in paragraph (a) to a relevant person is a reference to a person whom the local authority determines to be relevant for the purposes of considering the application concerned or, as the case may be, of deciding whether to revoke the waste collection permit, having had regard to any criteria that he Minister by regulations provides it is to have regard to in determining such a matter.
    "Subsection (11) of this section provides that the Minister may make regulations for the purposes of this section. It is agreed in the hearing before me that no such regulations have in fact been made by the Minister is this case. Subsection (12) of section -34 reads as follows:
    "(12). In this regard it is to be noted that no date has been prescribed under subsection 1 (a). It is to be noted that this subsection relates to the collection of waste by a person who has made an application for a waste collection permit and in circumstances where the requirements of regulations under subsection (11) are complied with. It is submitted that in the instant case there was an impossibility of compliance with the provisions to avail of the exemption contained in the subsection.
    Part V of the Waste Management Act 1996 provides for recovery and disposal of waste. At section 38 subsection (1) it is provided
    "(1) A local authority shall 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".
    Section 39 of the Act relates to the requirement to hold a waste licence. Section 39 (1) provides "subject to subsections (4 ) and (7), a person shall not dispose of or undertake the recovery of waste at a facility, on or after such date as may be prescribed, save under and in accordance with a licence under this Part (in this Act referred to as a "waste licence") that is in force in relation to the carrying on of the activity concerned at that facility." Subsection (4) provides that the Minister may by regulations provide that subsection (1) shall not apply in certain cases. Section 40 of the Act provides for the granting of waste licences by the Environmental Protection Agency. Section 41 provides that conditions may be attached to waste licences.
    The Waste Management Miscellaneous Provision Regulations in 1998 being S.I. 164 of 1998 have been made. By reference to these regulations it will be seen that all with the exception of a local authority or permit holder are prohibited from collecting waste.
    It is common case that no waste collection permits have been issued in this case and that the only holder of a licence was Noble Waste which has a licence from the Environmental Protection Agency.
    Submissions were made in relation to the opinion of counsel given on the 12th January, 2000 to the respondent. It is submitted that no actual costings have been drawn up where counsel infers in its opinion that if the local authority relied on the derogation
    contained at section 33 (3) (b) it could have made a derogation. It is submitted in the instant case that the respondent failed to satisfy the statutory conditions for exemption. It is further submitted that the respondent fails to refer to the failure to adopt a refuse charge in the estimates as a reason for the decision. result of the decision of the Council on the 27th January, 2000. He denied that there had impugned in these proceedings. It is further submitted that a failure to impose a waste collection charge is not a basis for a derogation under the Act and is not therefore a justification for the decision made in this case. It is submitted that the local authority appeared to have informed Counsel of a decision to avail of the exemptions.
    With reference to S.I. 164 of 1998 Article 5 provides that section 32 (2) of the Act of 1996shall not apply in respect of the transfer of waste to a person who is not prohibited under the Act or the Act of 1992 from undertaking the collection, recovery or disposal of the category of waste in question.
    In reference to the statement of the opposition filed on behalf of the Respondent it is submitted that at paragraph 3 thereof where references is made to the Respondent not being required to collect or arrange for collection of the household waste within its functional area by reason of the fact that one or more of the conditions mentioned in section 33 (3) applies to the functional area of the Respondent that no indication is given as to which of the exemptions contended for is relied upon.
    Counsel addressed in particular the duty contained in section 33 of the Act for the collection of waste by a local authority. If none of the conditions contained in subsection (3) and referred to at subsection (2) to apply, then a clear duty rests upon a local authority to either collect or arrange for the collection of household waste within its functional area. It is submitted that the respondent must be able to establish that the requirements of subsection (2) are satisfied. It is submitted that a purposive interpretation or the section requires the respondent to establish a satisfaction of one or more of the conditions before it can avail of same. It is submitted that it is a fundamental principle that a party availing of an exemption or exception must bear the burden of proving that the conditions for the exemption are exceptional or satisfied. With regard to condition (a) at subsection (3) namely that an adequate waste collection service is available in the part concerned of the local authorities functional area, it is submitted that such must have been available in the relevant part of the county at the time of the decision of the 27th of January, 2000.
    Mr. O'Leary's affidavit suggests that on the then last available data that private collectors collected some 50% of the household waste in the County. It is submitted that his belief that the private collectors could meet the demand following the respondent's withdrawal of services from the other 50% indicates a prospective prospect of availability, whereas the condition requires a present availability. It is submitted that one must contrast the term "could be made " which is referred to by Mr. O'Leary to the phrase used in this relevant subsection which is to effect that "an adequate waste service is available" . On the 14th of July, 2000 Mr. O'Leary swore that "an adequate waste collection service is available in the council's functional area ". It is pointed out that Mr. O'Leary does not set out what opinion the respondent reached in relation to areas which were not covered by private commercial operators. It is submitted that this later averment is not consistent with the evidence put forward by the respondent and in particular with its waste management plan.
    It appears that the Respondent declared that it had made a decision to stop collecting household waste in December of 1999 when it advertised its intention to do so in the Wicklow people and when Bray Urban District Council advised householders to consult the yellow pages for alternative collectors in its circular to every householder. In his earlier affidavit Mr. O'Leary referred to the decision to `privatise the waste collection service" and stated that the basis for the decision was that "adequate arrangements for the disposal of household waste can be made by the householders given the comprehensive service being offered by private commercial operators. "
    It is clear from the affidavit of the applicant dated the 8th of February, 2000 that no household waste collector operating in County Wicklow has received a permit issued by the Respondent authorising it to dispose of waste. It is submitted accordingly that the private waste collectors relied upon by the respondent cannot be `appropriate persons' to collect waste unless they are authorised to do so under the Act of 1992 or alternatively the Act of 1996. At the time of the making of the decision subject matter of these proceedings the authorisation scheme for waste collection provided for by section 34 had not been brought into effect by regulations. It is submitted that the respondent cannot rely on the provisions of an illegal service to assert that an adequate service exists for each and every householder in the County of Wicklow. It is further submitted that not only are the householders who transfer their waste to the private operators, advertised by the respondent guilty of contravention of section 32, subsection (2), but they are also potentially liable for prosecution as they are deemed to remain the "holders" of the waste concerned pursuant to section 32 (7) of the Act of 1996. It was submitted accordingly that they may be held responsible for any illegal dumping of the waste by unauthorised collectors recommended by the respondent.
    It is further submitted that the Respondent has failed to consider whether an adequate service was available in each part of Wicklow but purported to address the question of the adequacy of a waste service on a general basis.
    With reference to condition (b) "the estimated cost of collection of the waste concerned by the Local Authority would, in the opinion of the authority, be unreasonably high ", it is submitted that the respondent failed to consider whether the cost of collecting the household waste from each householder in Wicklow was unreasonably high. It is submitted that the Respondent's duty is so imposed as to require to consider separately the cost of collecting an individual household's waste before it relies on condition (b). It is submitted that if this view is mistaken and that the respondent is entitled to consider the cost of collecting from a particular district that an opinion under condition (c) must be predicated on a consideration of such district.
    The Applicant asserts that the Respondent failed to provide any costings of the collection of waste in County Wicklow. It is submitted that to make a reasonable decision that the "estimated costs would be unreasonably high" the Respondent must first ascertain what would be the estimated cost. It is submitted that it is not sufficient to estimate what the private collectors would charge, and the costs referred to in the subsection could only be interpreted as the costs that would be incurred by the respondent.
    It is submitted that all the unauthorised waste collectors mentioned in the circulars distributed by the respondent and the original householders who transfer waste illegally to them are "the holders" of particular household waste concerned, having regard to the provisions of section 32 (7) of the Act. On this basis it is submitted that the Respondent is obliged to collect waste or arrange for the collection of waste from the unauthorised private collectors. It is further submitted that the Respondent is obliged to consider whether the cost of collection of the waste taken illegally by the unauthorised collectors is unreasonably high. It is submitted that the Respondent had no authority to avoid its statutory duty for any financial reason other than for compliance with condition B in section 33 (3). It is submitted that the respondent was motivated by a financial consideration generated by the lack of a charge in the estimates but that these financial considerations did not entitle it to purport to derogate from its statutory duty to collect or arrange for the collection of household waste within the County of Wicklow.
    With regard to condition (c) namely, "that the local authority is satisfied that adequate arrangements for the disposal of waste concerned can reasonably be made by the householder of the waste", it is submitted that the Respondent has failed to produce any evidence as to the consideration of what arrangements can reasonably be made for the disposal of the waste of each individual household. It is submitted that the intention of the legislatire in providing this exemption from the duty imposed was designed to cover households who make disposal arrangements for their waste. It is submitted that it does not cover situations where adequate arrangements for the collection of waste can be made by the holder of the waste, as that situation is a condition covered by condition (a). It is submitted that the respondent has confused the concepts of the disposal of waste with the concept of the collection of waste. It is submitted that the respondent must be satisfied as to the disposal arrangements that can be made by each individual holder of the household waste concerned. It is submitted that there are arrangements which can be entered into must be, to the satisfaction of the respondent, adequate. It is submitted that the Respondent must also be satisfied that the person with whom the householder has made an arrangement to dispose of the waste can lawfully do so. It is submitted that the local authority must look at the waste concerned, look at what arrangements can been made and look at what arrangements for disposal will be made and judge whether the same is adequate. It is submitted that the Respondent did not in fact at any time address his mind to the derogations concerned and the conditions to be applied under section 33(3) of the Act. It is submitted that this is evident from the opinion of counsel exhibited in these proceedings where counsel did not have
    instructions to satisfy himself in this regard.
    SUBMISSIONS ON BEHALF OF THE RESPONDENT
    Mr. Dermot Flanagan Senior Counsel on behalf of the respondent submits in the first place that a distinction exists in the directives between `disposal' and `collection'. He further submits that a distinction exists between `authorisation' and `permission'. In this regard reference is made to the 1979 Regulations which did not address the issue of the collection of waste but provided for permits at Article 5 in relation to the disposal of waste. It is submitted that the Applicant has incorrectly used the term `waste permit' interchangeably in relation to collection, disposal and recovery of waste. It is submitted that these are separate and distinct concepts. It is submitted that the 1979 Regulations do not deal with waste collection at all but only deal with disposal. It is further submitted that the 1975 Directive in making reference to collection did not envisage any permit arrangement. It is submitted that the collection of waste does not involve a permit. However, once one gets beyond this point a permit or licensing system is involved. Counsel refers this court to Article 3 (1- of the 1979 Regulations which referred to the `disposal' of waste as opposed to collectors or collection of waste. It is submitted that the reference to a permit in Article 5 refer to Article 8 of the 1975 directive and this indicates that a person involved may collect waste without a permit. It is submitted that in so far as the Waste Management Act is concerned that one finds an unhelpful use of the terms permit and licensing.
    Counsel refers this court to the terms of the 1991 Waste Directive and submits that the first recital thereto stresses environmental protection. The tenth recital reads as follows
    "Whereas, to ensure a high level of protection and effect of the control, it is necessary to provide for authorisation and inspection of undertakings which carry out waste disposal and recovery".
    Counsel refers to the fact that the word collection does not appear in this indent and that the Directive was not concerned with collection or the regulation of collection or system for collection of waste.
    Counsel refers to the fact that when one looks at the Waste Management Act of 1996 one finds in Part IV thereof the title "Holding, Collection and Movement of Waste " while at Part V the title to this part reads `Recovery and Disposal of Waste'. While the eleventh recital to the 1991 Waste Directive refers to permit requirements in relation to establishments which process their waste themselves or carry out waste recovery when one looks at the twelfth indent to the directive it reads as follows
    "Whereas, in order that waste can be monitored from its production to its final disposal, other undertakings involved with waste, such as waste collectors, carriers and brokers should also be subject to authorisation or registration and appropriate inspection"
    Counsel submits that while the disposal operations are subject to a permit, the collection of waste is subject to authorisation or registration but not a permit per se and that an option rests with the member state in regard to the transposition of the Directive.
    It is submitted by Counsel that the Directive envisages a system whereby a collection may at some stage be subject to registration or licensing. Counsel points out that three sets of licensing regulations are in place under Part V of the Act with regard to recovery and disposal of waste.
    By reference to Article 8 of the 1991 Directive counsel submits that the term `handled' appearing in the Article includes the activity of collection of waste by a private or public waste collector. Article 8 reads as follows
    "Member 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 the Defendant recovers or disposes of it himself in accordance with the provisions of this Directive'."
    It is submitted by Counsel that the directive envisaged a system whereby the collection may at some stage be the subject of registration or licensing. There are three sets of licensing regulations in place under Part V of the Act with regard to recovery and disposal of waste.
    Article 12 of the 1991 Directive provides as follows
    "Establishments or undertakings which collect or transport waste on a professional basis or which arrange for the disposal or recovery of waste on behalf of others (dealers or brokers), where not subject to authorisation, shall be registered with the competent authorities. "
    Counsel submits that section 57 of the Waste Management Act, 1996 which is equivalent to section 27 of the Local Government and Planning and Development Act of 1976, gives powers to any person to apply to the High Court were it is believed that waste is being held, recovered or disposed of in a manner that causes or is likely to cause environmental pollution. In this regards it is submitted that the activities in question are subject to overall supervision of the courts. It is further submitted by counsel that authorisation of these activities in a member state may involve making the collector subject to authorisation. Counsel stresses that Article 12 permits authorisation or registration of such establishments. It is clear that Article 12 provides that where such an establishment or undertaking is not subject to authorisation it shall be registered with the competent authorities.
    Having referred to Article 9 of the Directive which deals with the requirement for permits to be in place for those engaged in the activities of disposal and recovery of waste it is conceded by counsel that there is no scheme of registration in place. Counsel refers this court to the provisions of section 34 of the Waste Management Act, 1996 which provides for waste, collection permits. However it is to be noted that no regulations have been made by the Minister in the context of this case under section 34 making provision for waste collection permits or excluding any category of collection from the requirement to have a waste collection permit.
    Section 34 subsection 1(a) reads as follows
    "Subject to paragraph (b), a person other than a local authority shall not, for the purpose of a 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. "
    It is submitted by counsel that in so far as section 34 (1)(a) permits of a permit system to be introduced for the collection of waste that it enables the regulation of waste collection in a similar way to the regulation for recovery and disposal of waste in so far as a permit may be required. It is submitted that prior to the making of any regulations any operator may collect waste without a permit. It is submitted that in so far as at the relevant time no permit was required that there has been no contravention by any of the waste collectors in the collection of waste from members of the public and that it does not and did not at the relevant time constitute an illegal activity under section 32 of the Act or otherwise. It is submitted that a collector is an "appropriate person", within the meaning Part IV of the Act for the collection of waste. In this regard counsel referred this court again to the provisions of subsection 5 of section 32 which defines an "appropriate person" to mean a "local authority, the corporation of a borough that is not a county borough, the council in the relevant district, or a person otherwise authorised and in accordance with this Act or the Act of 1992 to undertake the collection, recovery or disposal of the class of waste in question". It is submitted by counsel that the collectors in the instant case are authorised until regulations are in place which require a permit to be held. Having regard to section 34 (12) for a person to continue collecting waste when regulations are in place they will be required not only to make an application for waste collection permit but also to comply with regulations dealing with the area of the collection of waste. It is submitted accordingly that the collectors are not precluded under the terms of the Waste Management Act and section 34 in particular from the collection of waste in the period prior to the introduction of regulations. It is submitted that they require to bring waste to a facility under Part V of the Act. Waste collection means only the lifting and bringing of waste to the facility. It is submitted that to be authorised in the terms of waste collection does not require any positive Act as in the instant case it relates to the fact that the collectors of waste were not permitted or precluded from collecting such waste. In like vein it is submitted that while subsection 2 of section 32 provides that a person shall 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, in the instant case, the provision by members of the public of their waste to the waste collectors was to "appropriate persons" as defined in this section.
    It is submitted by Counsel that it was manifestly clear as of the 7th of February, 2000 that Wicklow County Council was at the final stages of the adoption of a waste management plan. Counsel refers to the fact that documentation had been furnished by September of 1999 to the members of the council, this showed that the council was nearing the stage for the adoption of the waste management plan. It is submitted that the county manager and the court can take account of all of the documents in the public domain and in the consciousness of the county manager when he made his decision. It is submitted that the county manager was entitled to take into account relevant documentation in the public domain as forming the basis of the decision made in January, 2000. This includes the decision to involve the private sector in the collection of waste. While no regulations have been put in place under the Waste Management Act the documentation before the court identifies persons who were engaged in the collection of household waste.
    It is submitted that section 22 of the Waste Management Act amounts to an identification of the matters required to be in a waste management plan. Based upon the fact that the adoption of the waste management plan was imminent it is submitted by counsel that this court should in its discretion refuse the declaration sought.
    In relation to the failure to adopt the Waste Management Plan, it being alleged that in this respect the Respondent is in breach of Article 4(2) of the European Communities (Waste) Regulations 1979 and the Waste Management Act, 1996.
    It is submitted on behalf of the respondent that the applicant has delayed in seeking relief and that this Court must take all matters in to account when assessing the applicant's claim for relief.
    Counsel has submitted that the assertion on the part of the applicant 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 is misconceived. It is submitted that the elected members were in a position to adopt estimates but having failed to do so the cost of waste collection was too high because it would have involved the cost to each household in excess of £200. It is submitted that this is unreasonably high. It is submitted that all matters that the manager had before him entitled him make his decision of the 27th January, 2000. It is submitted that the Court can take in to account the events of 1999 leading to the adoption of the Waste Management Plan.
    It is submitted that in so far as the Waste Management Plan has now been adopted that no benefit can be derived by anyone from the form of declaratory relief which is claimed and that the claim amounts to a moot and is futile. It is submitted that as a matter of discretion the relief which the applicant seeks should not be granted by this Court.
    Counsel referred the Court to the minutes of the meeting of Wicklow County Council in relation to the estimates and the adoption of a proposal to increase the household service charge £200. By reference of the minutes it was indicated that the majority of the members who spoke on the issue were strongly opposed to increase in the service charge to £200 - and anticipated that this would create hardship and would result in many householders turning to private operators instead of taking up the Council's services.
    Counsel has referred this court to the provision of the Waste Management (Planning) Regulations 1997 (S.I. No. 137 of 1997). These regulations were made by the Minister for the Environment pursuant to the provisions of the Waste Management Act, 1996 and purport to give effect to the various Council Directive on Waste including the 1975 Directive and 1991 Directive, previously being referred to, in so far as they require the preparation of a waste management plan. It is provided, inter alia, in these regulations at paragraph 2.2 as follows under the heading of waste collection:
    "A plan shall describe the waste collection systems (including bring facilities) which operate within the relevant functional area and their capacity, and specify arrangements for the segregation and separate collection of a specific types of waste."
    At paragraph 2.5 it is provided under the heading of `Waste Management Facilities', a plan shall provide, to the extent possible, the following information in respect of all facilities for the collection and, handling, storage, treatment, recovery and disposal of waste which are located within the relevant functional area -
    • location,
    • operating body,
    • process (yes) involved,
    • annual waste to put to capacity,
    • requirements regarding waste acceptance,
    • current waste input, under the headings specified at 2.1 (a)
    • in the case of a landfil facility, the estimated total remaining capacity.
    • where relevant, current output and utilisation of recovered material and
    • where relevant current output and final disposal of residue.
    At paragraph 2.6. of the regulations it is provided under the heading `other relevant matters'.
    "A plan shall
    (a) specify the cost of waste management activities undertaken by the local authority in and revenues accruing to the authority from such activities and
    (b) they indicate any deficiencies in waste management infrastructure or any other matters which inhibit optimum waste management".
    At paragraph 5.2 of the regulations it is provided as follows under the heading `Roles and Responsibilities'
    " A plan shall –
    (a) describe the respective roles of • the local authority, • other public authorities, -private interests and bullet point the public • in relation to the waste management within the relevant functional area.
    At paragraph (c) it is provided to specify proposed local authority measures to require, encourage or support the involvement ofprivate interests and to the public in support. of waste management policies.
    At paragraph 5.5 it is provided under the heading waste collection and disposal
    "For the purposes of Section 22 (7)(f) of the Act a plan shall include information on or otherwise have regard to –
    (a) the rationalisation, development or improvement of the existing waste collection, handling and disposal infrastructure, including the closure and after care facilities, and the provision of new facilities
    (b) measures, including co-operation with other local authorities, with a view to the application of the proximity principle, that is to say enabling waste to be disposed in one of the nearest appropriate installations by means of the most appropriate methods and technologies in order to ensure a high level of protection for the environment and public health
    (c) the application of the polluter pays the principle, and
    (d) consultation and co-ordination of measures with other local authorities. "
    Counsel referred to the minutes of the Council of the 13th of December, 1999 at which the report of submissions received in relation to the Waste Management Plan and consideration of the adoption of the Waste Management Plan took place. The minutes show that in the course of the meeting the Deputy County Manager advised that the Waste Management Plan is to provide the Council with an overall strategy for how to manage waste, and the privatisation of the waste collection service does not impact on the plan. It appears furthermore that the Deputy County Manager referred to the fact that the estimates meeting having had a proposal for a refuse charge of £200, there were no other suggestions to having it reduced with subsequent reductions to balance the estimates. At the meeting he considered that there were no other options and the private sector could provide the service for £126 including a wheelie bin. It appears that the Deputy County Manager expressed the view that the private sector was quite capable of taking over the service from the I st of January in Bray, Wicklow and Arklow. Counsel referred to minutes of other meetings of the Council including the meetings of the 10th of January 2000 and of the 17th of January 2000 in which the issue of refuse collection was discussed and it is clear from these meetings that the management clearly envisaged that the collection would be collected by means of private enterprise rather than by the Council continuing the service that it had provided heretofore. It is submitted by counsel that there is ample material before this court to demonstrates that the County Manager had before him sufficient material to make the decision that the County Council came to within the terms of exception provided for by Section 33 of the Waste Management Act of 1996. It was submitted by counsel that the court is entitled to have regard not only to the order of the Manager and the general state of knowledge accumulated throughout 1999 as to the availability of the service from the private sector and the cost to the authority and this was considered unreasonably high and the fee of £200 and this supported the decision made pursuant to Section 33.
    Counsel made reference to the provisions of Section 33 of the Act of 1996 in particular the words "any part and to the extent" appearing at subsection (2) thereof. It is submitted by Counsel that the words "collection service is available" should be construed as meaning capable of being used. It is submitted that it is too narrow a construction of the subsection to say that the Council had to be in the position to guarantee service for each and every household in its area as of the 27th of January 2000. It is submitted that in consideration of the subsection that the local authority was entitled to have regard to the entirety of its functional area and that the term any part of a local authorities functional area appearing in subsection 2 does not exclude the application of the exemption to the entire of its functional area. It is submitted that in so far as the subsection refers to any of the conditions mentioned in subsection (3) that these are alternative conditions and not accumulative. It is submitted accordingly by counsel that any one or more of the exceptions may apply to any part of a local authority's functional area including the entire thereof. Counsel further referred with emphasis to the words "to that household waste" appearing in subsection (2) and submitted that the term is not referable to individual waste of for example, a particular house. It is submitted that the words refer back to the first line of the subsection namely household waste "in any part of a local authority's functional area". It is submitted that the words "as appropriate" referred to the conditions appearing at subsection (3) of the Section.
    In reference the conditions appearing in subsection (3) it is submitted by counsel that with regard to subsection 3(a) that an adequate collection service is available in the entire of the functional area of the respondent's council. Counsel submitted that this must be seen in the context of the words "is available" being construed as meaning "is capable of being used or is within the reach or is at the disposal of persons within the area". It is submitted that the part concerned in this condition refers back to the area being considered by the local authority, which, in the instant case, it is submitted, was all of the functional area. With regard to the condition at paragraph (d) in subsection 3 namely that relating to the estimated cost of collection of the waste concerned, it is submitted by counsel that the waste concerned means household waste in all of the functional area. It is submitted that Section 33 requires a decision to be made by the County Manager and that the relevant material was before the Manager. It is submitted in this regard that he had evidence in relation to the costs to each householder and that a service could be made available to the householders for a figure greatly less than the charge otherwise to be imposed by the local authority to each householder. Counsel further stressed the requirement of the `polluter pays the principle' and submitted that the cost in the estimates would have given rise to an unreasonable cost to each householder. It is submitted that by reference to the `polluter pays principle' that the Council must impose a charge which reflects the real charge to it upon each householder. It is submitted that even with the cost of £206 that there would still be a subsidy of £300,000 provided by the Counsel for the collection of waste.
    With regard to the conditions at paragraph (c) namely whether adequate arrangements for the disposal of the waste concerned could reasonably be made by the holder of the waste, it is submitted that a householder could bring waste to a recognised licensed facility. It is submitted that doubt exists whether it applies to categories of household waste. It is submitted again that the Council was entitled to consider all of its functional area under this subheading. It is submitted that Section 33 subsection (3) was considered by the County Manager and that once a private collector becomes a holder of waste, he brings it to a licensed facility within the county. It is submitted by counsel that the private waste collectors, being holders of the waste, provided adequate arrangements for the disposal of waste.
    Counsel submitted that the principles enunciate in the case of O'Keeffe v. An Bord Pleanala [apply] to the decision of the County Manager in the instant case. It is submitted in this regard that there was relevant material before the decision maker which enabled the decision to be taken and justified same. It is submitted that the County Manager was entitled to consider the entire of its functional area. It is submitted by counsel that once there is evidence to support the exemptions at paragraph (b) or (c) to subsection (3) of Section 33 that the respondent is entitled to rely upon one or more of the conditions as the facts permit.
    Counsel stressed in reference to the applicant's grounding affidavit that the decision in relation to privatisation was properly one to be taken by the Executive or Manager of the Council and that it was not a reserved function of the respondent Council. It is further submitted that the assertion by the Applicant that she is aware of the case of a person could not find a collector who would resume the service provided by the Council, it is unsupported by evidence in relation to any particular person. It is submitted that in regard to the position of the applicant that she has not demonstrated that she has suffered any damage herself but she is agrieved simply as a member of the public who has suffered no damage.
    The Council's case can be summarised as follows.
    (1) It 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 applied to its functional area.
    (2) Its decision in relation to the collection of waste pursuant to Section 33 of the Waste Management Act, 1996 is not "a reserved fimction" but is, on the contrary, an executive function of the Council.
    (3) Bray U.D.C. and Arklow U.D.C. are separate functional areas to that of Wicklow County Council in respect of the collections of waste.
    (4) There is now in place a comprehensive waste collection service and that adequate arrangements for the disposal of household waste can be made by householders
    (5) There was ample and sufficient material before the Council in order to arrive at its decision of the 27th January, 2000 as between June of 1998 and April 2000 the Council invoked the procedures for the making of a Waste Management Plan, which plan was made by resolution of the elected members of the Council (of which the Applicant is one) on the 17th of April, 2000.
    It is submitted in relation to the Waste Management Plan that in so far as the applicant is seeking the reliefs at paragraph (d) subparagraphs 1, 2, 3 and 5 of the Applicant's statement that the issues and grounds upon which the relief is sought are now moot.
    It is submitted on behalf of the respondent that this court ought not to be asked by way of Judicial Review to substitute its own views for that of a local authority once there is any information to justify a reasonable decision being reached by the local authority in making its decision. In this regard reference is made to the decision of the Supreme Court in case of O'Keeffe v. An Bord Pleanala [1993] 1 I.R. 39 were it was stated by Finlay C.J. at page 71 of the report as follows
    "The Court cannot interfere with the decision of an administrative decision making body merely on the grounds that (a) It is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) It is satisfied that the case against the decision made by the authority was much stronger that the case for it."
    Later at page 72 of the Report the Chief Justice stated inter alia as follows:-
    "I am satisfied that in order for an applicant for Judicial Review to satisfy a court that the decision-making authority has acted irrationationality in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the Court that the decision-making authority had before it no relevant material which would support it decision"
    Counsel further referred this Court to the decision of Laffoy J. In the case of O'Reilly and Others v. Kevin O'Sullivan and Dunlaoghaire Rathdown County., Council (unreported High Court 25th July, 1996) (where at page 19 of her judgment she interpreted the principles enuciated in the O'Keeffe case as follows:-
    (i) The Court can intervene if the decision is fundamentally at variance with reason and common sense
    (ii) If the decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it then the Court can interfere but to prove a case of that kind would require something overwhelming
    (iii) Judicial Review is concerned not with the decision, but with the decision-making process. It is not an appeal from a decision but a review of the manner in which the decision was made.
    (iv) The conditions under which the Court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare ".
    It is submitted, based upon this decision and together with the decision of the Supreme Court in the case of Devlin v. Minister for Arts Culture and the Gaeltacht [1999] 1 I.L.R.M. 462 in which the Supreme Court indicated the limits of Judicial Review and the case of The State (Abenglen) v. Dublin Corporation [1984] I.R. 381, that the remedy which the applicant seeks is discretionary in nature and that this court should not do so in circumstances were it is purposeless to do so where the Waste Management Plan has already been put in place and the Applicant has suffered no damage.
    The essential proposition put before the Court on behalf of the respondent in relation to the holding and collection of waste is that by virtue of the definition of the `appropriate person' contained in Section 32, until regulations are introduced, the collection of waste by a private collector is authorised and therefore a private collector is an appropriate person because under Section 34(4) no regulations have been introduced to date. It is further submitted that on the evidence put forward by the Respondent the criteria for the exceptions to the statutory obligations under Section 33(3) are met. It is submitted that there was ample and sufficient material for the respondent to come to the conclusion that the exceptions apply, and that its decision in this regard is not open to Judicial Review on the ground of reasonableness. It is further submitted that the description of "waste collection permit" in Section 34 is separate and distinct from a "waste permit" under the Waste Management (Permit) Regulations (1998) because a "waste permit" is defined in these regulations as being a waste pernlf for the purposes of Section 39(4) of the Act. It is to be noted however that Section 39 of the Act relates to the requirement to hold a waste licence to dispose of or undertake the recovery of waste at a facility.
    No regulations have been made for the purposes of Section 34. On behalf of the respondent it is submitted further that the Waste Management (Permit) Regulations of 1998 which came in to operation on the 20th May, 1998 were made in exercise of the powers conferred by Sections 7, 15, 18, 19 and 39 of the Act of 1996.
    With regard to the Council Directive it is submitted on behalf of the respondent that when looks at the Directive and the activities referred to in Annex II A which relates to disposal operations that the collection of waste is not identified in this Annex as such an activity. It is further submitted that the collection of waste is not identified in Annex II B of the same Directive under the title of operations which may lead to recovery. It is submitted that waste disposal activities identified in the Third Schedule to the Act reflect those identified as Annex II A in the 1991 Directive and the waste recovery activities identified in the Fourth Schedule to the Act reflect those identified at Annex II B of the Directive of 1991. Counsel further points out that the provisions of the Waste Management (Licensing;) Regulations deal with the disposal and recovery of waste at a facility and were not made pursuant to Section 34 of the Act in so far as it is concerned with the collection of waste.
    At no relevant time to these proceedings were regulations made under Section 34 for a "waste collection permit". Under the licensing regulations and the permit regulations, under Section 39 et seq. of the Act, there is a requirement to be licensed or to have applied for a licence for a facility. On this basis it is submitted that anyone can collect waste and transport waste. It is, however, conceded that the disposal or recovery of waste is regulated and licenses or permits are required for this activity. Counsel further submits that the Council having now adopted a Waste Management Plan in accordance with the Act was complying with the requirements of the Act before and subsequent to the commencement of these proceedings. It is further submitted on behalf of the Respondent that the applicant has failed to discharge the onus of proof which rests on her to show that the respondent's decision is unreasonable. In this regard Counsel relies upon the fact that Mr. O'Leary was not cross-examined on his affidavits. It is further submitted that there has been no loss shown to have been suffered by the Applicant.
    With regard to the nature of the relief being sought it is submitted that the relief in the instant case must be considered to be discretionary in nature in so far as the Applicant has not been able to show any special damage that has been suffered by her or that she is person aggrieved in any special way by the making of the order which is impugned in these proceedings. In this regard counsel refers to this court to the decision of Henchy J. in the case of The State (Doyle v. Carr [1976] I.R. 87.
    It is submitted that the relief of mandamus which the Applicant seeks is one to which she is not entitled unless she can show some defect in the manner of the making of the order impugned in these proceedings. With regard to the discretionary relief sought in terms
    of a declaration, it is submitted that an adequate service exists in the functional area of the local authority.
    On behalf of the Applicant, Mr. Michael O'Donnell submitted in reply to the arguments advanced on behalf of the respondent that the term disposal includes collection of waste and in this regard reliance is placed upon the definition of disposal appearing in Article 1 of the 1975 Waste Directive. It was submitted that the 1979 Regulations are still relevant although they have been repealed. In this regard reliance is based in particular upon the provisions of Article 3 of the Regulations precluding the holder of waste, if he does not himself dispose of the waste, from permitting disposal of the waste by any person other than a public waste collector or a person holding an appropriate permit under Article 5 of those Regulations. It is submitted that these provisions still apply by reference to the transitional provisions of the Act of 1996.'
    With regard to the 1991 Directive it is submitted that the respondent is wrong in the submissions that have been advanced to the court. Counsel relies in particular upon the wording; of the second last recital appearing in the 1991 Directive were it is indicated that the objectives of the Directive includes a situation where waste collectors amongst others should be subject to authorisation or registration and appropriate inspection. It is submitted that if the respondent is correct that anyone may carry out the activity of waste collection and that then they, cannot be subject to control or monitoring as envisaged in the Directive itself. Further reliance is based upon the terms of Article 12 of this Directive which indicate that undertakings which collect or transport waste on a professional basis or which arrange for the disposal or recovery of waste on behalf of others, where not subject to authorisation, shall be registered with the competent authorities. Counsel submits that Article 12 is clearly mandatory in terms. It is submitted that to be authorised there must be a conferment on the collectors of a legality. Counsel submits that while there is a positive obligation under Article 12 of the Directive the member states merely have a discretion as to how this obligation is to be realised. Counsel points out the fact that there is in fact no registration and no plan is in existence in this regard. It is submitted that this Court should apply a purposive approached to the management in supervision of waste.
    It is submitted further that when one looks at the terms of the 1996 Act that the legislature recognised the need for authorisation under Article 34. It is submitted that it is not appropriate that there be a total absence of control. The Council referred back to the
    provisions of Section 34 (12) dealing with transitional provisions during a period before a waste collection permit in relation to such collection is granted or refused in circumstances where an application had been made for waste collection permit.
    Counsel further refers this court to the provisions of Section 68 of the Act of 1996 which provides inter alia as follows
    "(1) References in any enactment (other than this Act) to a permit under –
    (a) The European Communities (Waste) Regulations, 1996
    (b) The European Communities (Toxic and Dangerous Waste) Regulations, 1982, or
    (c) The European Communities (Waste Oils) Regulations, 1992 shall be construed as references to as appropriate - (i) such permit that is for the time being in force by virtue of subsection (6), (2) a waste collection permit under Part IV and (iii) waste license tinder Part V
    Subsection 6 of the Act provides as follows
    "(6)(a) A permit issued under the European Communities (Waste) Regulations, 1979, the European Communities (Toxic and Dangerous Waste) Regulations, 1982 or the European Communities (Waste Oils) Regulations, 1992 being a permit to which this subsection applies, shall, notwithstanding the revocation of the said regulations by this Act, continue in force in accordance with its terms but shall cease to have effect upon, as the case maybe –
    (i) The grant to the holder of the permit of, as appropriate –
    (I) A waste collection permit referred to in paragraph (b), or
    (II) A waste licence referred to in the said paragraph, or
    (ii) The making of a decision by the Agency or the local authority concerned to refuse to grant to the said holder such a permit or license.
    (b) This subsection applies to an aforesaid permit if-
    (i) The holder thereof has applied before the appropriate date referred to in Section 39 (])for the grant of a waste licence, or, as the case may be applied before the date referred to in Section 34(1) for a waste collection permit, in respect of the activity to which the first mentioned permit relates and
    (ii) The said application is made in accordance with the requirements of regulations under this Act.
    Counsel submits that there must be some form of registration as authorized under the Directive. With the regard to the provisions of Section 32 subsection 2 it is
    submitted by counsel for the applicant that the collectors in the instant case are not `appropriate persons' within the meaning of the Act. It is submitted that waste can only be transferred'. to a local authority by a collector of waste. It is submitted that a local authority could devise a system of registration or authorisation. It is further submitted that to comply with the Act there must be the necessary registration or authorisation and that until the Minister makes the necessary regulations the local authority is in default. It is submitted that the local authority could have agents act as it's agents under the supervision and control of the local authority. It is further submitted that the holding of waste pending disposal is part of the transportation process and the transfer of control is governed by the provisions of Section 32 (2) of the Act. It is submitted that it is not consistent with the Directive for a system to exist were no one knows where waste is going. It is submitted that a degree of supervision is required under the terms of the Directive.
    While it was submitted on behalf of the Respondent that the controls under the 1975 Regulations had now been abandoned it is submitted that does not accord with the legislation or the purposive approach to the interpretation of the Directives when read
    together with the legislation. It is submitted that the system devised flies in the face of the legislative requirements.
    While it has been submitted that no loss has been suffered by the Applicant, it is submitted in reply that she has locus standi not only as a resident but as a public representative in the area concerned.
    With regard to the relief sought by the applicant in regard to the failure to adopt a Waste Management Plan it is submitted that on the evidence of the applicant that this Court should grant the relief which is sought. It is submitted that the application was brought to this court in circumstances were no plan existed. It is submitted that while the decision to adopt a plan is a reserved function and rested with the elected members it is the decision of the executive which triggered the Applicant to take these proceedings. It is submitted that the duty is imposed that the objectives of the plan be fulfilled and that the decisions of the executive be taken within the terms of the Waste Management Plan.
    With regard to the manner in which the decision was taken by the respondent it is submitted that this court should not consider the matter as been governed by the principles enunciated in the case of O'Keefe v. An Bord Pleanala (supra) as in the instant case the court is not dealing with the manner which the decision was made. It submitted by the applicant that the respondent has misconstrued Section 33 of the Act. It is furthermore submitted that O'Keeffe principles do not apply where the respondent is relying on exceptions provided for in Section 33 subsection 3 of the Act. It is submitted that the respondent has fundamentally misunderstood the requirements of Section 33 of the Act. It is furthermore submitted that the applicant has sought to apply an exclusion in breach of the terms of Section 32 of the Act. It is furthermore submitted that the applicant does not know which the exemptions provided for in the subsection at paragraphs (a), (b), or (c) thereof are being relied upon. It is submitted that there cannot be a waste collection service in the instant case if it is in breach of the legislation. It is furthermore submitted that in the context of Section 33 (3) that part of the local authority's functional area cannot be construed as being equated to the entire of the local authority's functional area. It is submitted accordingly that there has been a fundamental error of law which nullifies the decision impugned in these proceedings.
    With regard to the exception provided for in Section 33 (3) (b), namely that the estimated cost of the collection of the waste concerned by the local authority would in its opinion be unreasonably high, it is submitted that this does not permit a situation were if the costs is unreasonably high, they can simply decide not to collect the waste concerned. It is submitted that the term "the waste concerned in the instant case" is referable to household waste. With regard to the exception provided for at paragraph (c) where 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, counsel on behalf of the applicant submits that this provides a limited prevention to local authority and might include, for example, the disposal of bottles, tins etc for recycling. It is submitted that if the applicant is correct then any local authority can abandon collection if the cost is unreasonably high in its estimation. It is submitted that this cannot represent a correct interpretation of the legislation. It is furthermore submitted that there is no evidence before the Court as to how the decision impugned in these proceedings was reached. With regard to the opinion of counsel commissioned by the Respondent is clear that no costing had been carried out and this is apparent on. the fact of the opinion itself. It is furthermore submitted that this is clear from the terms ofthe order where no costings were done and the order refers to the decision of Council at various meetings. It is submitted accordingly that the Respondent did not direct its mind to the correct question, failed to have regard to relevant material or alternatively had regard to irrelevant material in reaching the decision impugned in these proceedings and that on this basis the Applicant is entitled to the relief which she seeks.
    CONCLUSIONS
    In the first place dealing with the obligation to prepare a waste management plan, I am satisfied that at the stage when the applicant first moved to this court that the preparation of the plan had been ongoing for some time and as the adoption of the plan was a reserved function and as the applicant is a member of the respondent council, it is clear that she must have been aware at the time of the stage of preparation of the plan. It is of course true that the plan should have been adopted at the stage when these proceedings were brought before the court, but that of itself does not warrant this court granting the applicant the declarations and the mandamus which she seeks relating to the failure at the time to have adopted a waste management plan. It is necessary in the case of a duty imposed upon a public body to call upon it to act in the normal way before the court will consider giving the relief of mandamus and if in those circumstances there is a refusal or a failure to comply with the legal obligation then mandamus will lie. In the instant case had the applicant requested the local authority to adopt a waste management plan it is doubtful that matters would have moved much more quickly than they did and I am satisfied, notwithstanding the tardiness with which the plan was ultimately adopted, that its adoption was being actively pursued at the stage when the applicant first moved to this court and in these circumstances, in exercise of my discretion I refuse the relief which the applicant seeks in this regard which are at the relief sought at paragraphs 1, 2, 3 and 5 in the grounding statement.
    While the applicant has contended that the decision, impugned in these proceedings, was a reserved function, I am satisfied that any decision of the nature in question is in fact an executive or managerial function of the respondent.
    I am satisfied that the 1975 Waste Directive contemplated the drawing up of waste management plans within a reasonable time after the period for the transposition of that directive in 1977 had elapsed. I am satisfied that the objective of that Directive was to ensure that a planned approach would be followed in each Member State in relation to the objectives of the Directive an in particular in the interest of the protection of the environment and the improvement of the quality of life identified in the Directive. I am satisfied from the terms of the Directive that it was envisaged that undertakings collecting waste, including those doing so on behalf of local authorities, would be subject to supervision by the competent authority(ies) referred to in the Directive, which in the instant case is the respondent.
    The Minister for the Environment did not transpose the Directive in 1977 but in 1979 made the European Communities (Waste) Regulations, 1979. Regulation 4 of these regulations imposed on each local authority the responsibility for the planning, organisation, authorisation and supervision or waste operations in its area and provided that each local authority "shall as soon as may be" prepare a plan. The regulations largely addressed the requirements of the Directive in relation to the treating, storing and tipping of waste, which relate to Article 8 et seq. of the Directive. This activity is not at the heart of this case and it is to be observed that the Regulations did not set forth any provisions governing the supervision of those engaged in the collection of waste.
    The second Waste Directive is the Waste Directive of 1991 being Council Directive 91/156/EEC and it substantially replaced the provisions of the 1975 Directive. This Directive nnade specific provision for waste disposal and recovery and again the activities of waste disposal and recovery are to be contrasted with those of waste collection. However, the 1991 Directive is not silent with regard to collection and it is indicated in the penultimate recital to this Directive that undertakings such as waste collectors and carriers should also be subject to authorisation or registration and appropriate inspection.
    At Article 8 of the Directive it is indicated that the `holder' of waste, which includes a natural or legal person who produces or is in possession of waste should have it handled by a private or public waste collector. This indicates that the European Communities was not opposed to the involvement of the private sector in this activity.
    Article 12 indicates that undertakings which collect or transport waste on a professional basis or which arrange for the disposal or recovery of waste on behalf of others, where not subject to authorisation, shall be registered with the competent authorities. It is indicated in Article 13 that such undertakings shall be subject to appropriate periodic inspections by the competent authorities.
    Article 15 of this Directive refers to the "polluter pays" principle and indicates that the cost of the disposal of waste must be borne by the holder of the waste who has it handled by a waste collector and/or the previous holders or the producer of the product from which the! waste came.
    This indicates that the European Community envisaged that all households as producers of waste must be expected to pay for the cost of the disposal of that waste. In light of this principle it must be appreciated by all that the days of the disposal of waste without any cost being borne by the householder in question for that disposal are over. In light of this principle the cost of the disposal is an important consideration by each local authority in the exercise of its responsibilities under the Directive. This Directive was required to be transposed. into national law by the 1 st of April 1993.
    Once again it appears that the necessary measures for the transposition of this Directive into Irish law were not taken within the time provided for by the Directive and it was not until the enactment of the Waste Management Act, 1996 in May of that year that the Directive was transposed into Irish law. Even in the context of the enactment of that legislation it can be seen that the full transposition of the Directive was not effected as certain provisions of the legislation were dependent upon the making of regulations by the Minister under the Act.
    In the instant case it is clear that the members of Wicklow County Council were not disposed to adopt an estimate in circumstances where a significant levy was to be imposed on householders for the disposal of waste. It is clear that the continuation of collection without the imposition of a charge commensurate with the cost of the disposal of the waste concerned would not be in accordance with the polluter pays principle. In light of the failure by the members of the respondent council to sanction an appropriate charge, the issue arising in these proceedings came into focus, namely whether the council would continue to collect waste without requiring the producers of waste to bear the cost of the disposal of same or whether the council would take other action. It is clear that the cost of disposal was increasing at the time and the local authority was unable to collect the then existing waste charge from a significant number of households.
    The issues arise whether the collectors now involved in the collection of waste in Wicklow are or were at all relevant times persons authorised under and in accordance with the 1996 Act of the 1992 Act to undertake the collection, recovery and disposal of the waste. What is in issue here is not in reality the recovery or disposal of the waste, but is essentially limited to the collection of the waste as it is the collection of the waste from householders that is in issue.. This leads one to a consideration of section 33 of the Act which pertains to collection. The respondent recognises that it was under an obligation to collect the waste in question unless it could bring itself within the terms of subsection (3) if the section. I consider that the word "part" appearing in subsection (2) includes a plurality of parts as I consider that the construction of the Act does not otherwise indicate and in this regard section 11 of the Interpretation Act, 1937 applies.
    I believe that the words " an adequate waste collection service is available" appearing in paragraph suggest that at the time when the exclusion is sought to be exercised there must be in fact a collection service available rather than a possibility of it being made available. I consider that the evidence suggests that at the outset while collectors had been identified and may have been willing to get involved that a service was not then available in all parts. As against this I am of the opinion that as of the swearing of the latest affidavit by Mr. O'Leary that a service appears to have been available throughout the county. It appears that the applicant has made assertions questioning the veracity of this assertion but I have no evidence sal:isfying the court that as of the time of the swearing of the latest affidavit that no service was available.
    With regard to paragraph (b) of the subsection and whether "the estimated costs of the collection of the waste concerned by the local authority, would in the opinion of the authority be unreasonably high", I believe that to ask what the financial situation of the respondent is, is to miss the point. I believe that the enquiry that is called for is what the cost would be to the producer of waste, namely the households in question in County Wicklow, as the Act must be seen to apply the "polluter pays" principle identified in the Directive of 1991 and in this regard the evidence shows that the estimated cost by the local authority would
    entail a significant levy by householders, which in light of its rejection by the members of the council, it was open to the respondent to conclude was a cost which would be unreasonably high.
    With regard to paragraph (c) of the subsection, I consider that in light of the evidence before the court that arrangements could be made by holders of the waste in circumstances where the local authority had identified collectors of waste. However, I believe that the adequacy of arrangements in this regard cannot be limited to the fact that in fact operators were prepared to take over the service, but I consider that in light of the requirement in the Directive for supervision and registration. I am not satisfied that there was any requirement placed on the operators at the time and this may have resulted in operators who had not been registered and therefore not subject to appropriate supervision being involved in the collection of waste. At the same time it was open to the respondent to engage private operators to take over the collection service on its behalf as indicated in s. 33 (5) of the Act.
    With regard to the further argument that it was not open to the respondent to take a decision in the nature of that taken on the 27th of January 2000 in the absence of a Waste Management Plan, I consider that the scheme of the European Community Directives suggests that all action will be taken in the context of an existing plan. Where there has been a failure to adopt such a plan I do not believe that this precludes all action on the part of the Executive; of the Council in implementation of its responsibilities in the field of waste and in particular action such as that taken in the instant case to `privatise' the waste collection service of the council, provided that the essential requirements of the Act are otherwise met. As indicated previously the concern expressed about the involvement of unregistered and unsupervised operators may apply notwithstanding the absence of a Waste Management Plan and on the; other hand such concerns could arise even if such a plan had been adopted.
    With regard to section 32 of the Act of 1996 under the heading Holding and Collection of Waste an issue arises whether a person is an authorised person or in terms of the section an "appropriate person" in circumstances where no regulations have been made under the Act in relation to the section. It is clear that the intention of the legislature was that collection of waste would ultimately be undertaken by persons granted a permit to collect waste. No regulations have been made enabling this section to be made in the circumstances of this case. On this basis the issue as to whether a person who has not been granted a permit can ever be! a person "otherwise authorised under and in accordance with this Act... to undertake the collection, recovery or disposal of the class of waste in question." I believe that the facet that someone has not been authorised under the Act only arises in circumstances where there: was no machinery in operation at the relevant time to provide for such an authorisation. While section 34 (1) provides for a prohibition on a collection for reward by any person other than a local authority save in accordance with a permit this is expressed to be "on or after such date as may be prescribed". No such date was prescribed at any time relevant to these proceedings and accordingly no prohibition applies under the section. This then brings ]"into play the provisions of article 5 of the Waste Management (Miscellaneous Provisions) :Regulations, 1998 of the 20th May, 1998 which date was the same date as section 32 itself carne into effect. Article 5 provides as follows:
    "Section 32 (2) of the Act shall not apply in respect of the transfer of waste to a person who is not prohibited under the Act or the Act of 1992 from undertaking the collection, recovery or disposal of the category of waste in question."
    I consider that this provision, the legality of which is not challenged in these proceedings, indicates that the collectors now engaged in the collection of waste in County Wicklow are not engaged in any illegal activity and accordingly the householders in question are not engaged in any illegal activity as alleged.
    In light of these considerations I am satisfied that the applicant is not entitled to the relief which she seeks in these proceedings but she has highlighted certain matters of concern in regard to the faithful implementation of the Directives in question. I am conscious at the same time that the only respondent to these proceedings is the local authority who is not responsible for the making of regulations under the Act of 1996 and no order can be made against this respondent in relation to the alleged failure of the Minister or of the State generally in regard to the implementation of the Act or the transposition and application of the provisions of the Waste Directives.

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