The High Court ruled that Limerick County Council could not limit Mr. Binman Limited’s proposed export of refuse-derived fuel to Sweden to 11,000 tonnes. Mr. Justice Gilligan declared that the company had tacit consent to ship 20,000 tonnes for recovery under a notification covering the period from 27 October 2006 to 26 October 2007, and that the council’s cap was unlawful and beyond its powers.
The ruling followed a judicial review of a certificate the council issued on 27 February 2007. The certificate confirmed that a financial guarantee was in place but capped exports under notification IE 140096 at 11,000 tonnes. The company had sought certification for 20,000 tonnes.
The judgment says the Swedish Environmental Protection Agency sent an acknowledgment of the shipment notification to the council on 30 October 2006. It faxed the acknowledgment to a number that had been used by the council but was no longer in service after an office move. The number still appeared on the council’s Environment Section details and its official e-tenders website, the judge found. The council did not receive the acknowledgment until 19 February 2007 and argued the 30-day period for objections began only then.
The judge relied on an earlier European Court of Justice ruling that the objection period runs from when the destination authority sends the acknowledgment. As the council had not objected within 30 days of 30 October, the judge concluded that the company had tacit consent to ship the notified 20,000 tonnes. He said a later purported objection by the council had no effect.
The council also argued that limiting exports was justified by concerns about the company’s compliance with its waste management plan, including recycling education, bag marking and household recycling provision. The judge distinguished local waste management from cross-border movement of waste for recovery. He held that the certificate under the 1998 regulations concerned whether the required financial guarantee was in place. Since he was satisfied that it was, the certificate had to issue; adding other criteria, including a tonnage limit based on waste management concerns, was unlawful and ultra vires.
The judgment records a declaration on the tacit consent and a declaration that the 11,000-tonne limit was unlawful. Although the company had also sought other remedies, including damages and orders affecting the certificate, the supplied judgment extract does not state that those were granted.