The High Court rejected three additional challenges by Greenstar Limited to a Dublin-region waste-management plan variation, but applied wider findings from a related case that the variation breached competition law and exceeded the councils’ powers.
Mr Justice William M. McKechnie delivered judgment on 21 December 2009 in Greenstar’s judicial review. He said the case raised the same overall factual and legal issues as Nurendale Ltd t/a Panda Waste v Dublin City Council and others, and applied that judgment’s material conclusions to Greenstar.
Those conclusions included that the four local authorities breached section 4 of the Competition Act 2002 and that the variation was ultra vires under the Waste Management Act 1996. The court also found the variation vitiated by bias and prejudgment in the specific circumstances, including statements by a council official and the partial nature of reports relied on. The court said the variation was not irrational, gave rise to no legitimate expectation, and did not disproportionately interfere with Greenstar’s property rights or right to earn a livelihood. The judgment said the variation would not appreciably affect interstate trade, so the cited EC Treaty provisions did not apply.
Greenstar’s case concerned a plan change requiring each Dublin local authority either to collect specified streams of source-separated household waste from single-dwelling homes or arrange collection through competitive tendering. Collection was to be by a single operator in designated areas. Greenstar had requested an oral hearing during consultation, which the authorities did not hold.
The judge ruled that the consultation process did not require an oral hearing. Interested parties had opportunities to make written submissions, and the issue involved policy rather than individual determinations of rights. He also said judicial review provided a sufficient safeguard for the purposes of Article 6 of the European Convention on Human Rights.
Greenstar further argued that the authorities should have disclosed a February 2008 RPS report and legal advice from Phillip Lee and Company. The judge found no breach of fair procedures: reports published with the proposed variation, together with a response report, provided enough information about the councils’ reasons to assess and challenge the decision. He said publication of the additional report and legal advice was not required.
Finally, the court rejected Greenstar’s claim that the councils’ combined roles as waste-market operators and regulators, together with the statutory consultation process, automatically created objective bias. The judge said those roles increased the likelihood of objective bias and that precautions were encouraged, but the roles alone did not establish it. That ruling was distinct from the case-specific finding of bias and prejudgment applied from Nurendale.
The court’s conclusions on Greenstar’s three additional issues were that there had been no breach in failing to hold an oral hearing, no breach in withholding the specified material, and no automatic objective bias from the councils’ dual roles. The judgment does not state a separate final order in the excerpt provided.