Test case on bin charges for top court

The Supreme Court is to hear a test case over the legality of bin charges levied by Dublin City Council before it introduced its weight-based method of charging in 2002.

The council won up to 300 cases against householders who incurred bin charge arrears in 2001 and 2002.

One of these cases was referred for determination to the High Court in January 2004, and Mr Justice John Quirke upheld the validity of the charge under Irish and EU law.

However, two other cases were appealed to the Circuit Court later last year, and in both cases the judges found that the charges were invalid.

If the council loses the Supreme Court case, this would put a question mark over the payment of almost €13 million in waste charges by compliant Dublin city householders in 2001 and 2002.

It would also raise questions for other local authorities that use a similar system of charging.

Yesterday, several appeals by bin-charge defaulters were listed for mention in the Dublin Circuit Court.

Ms Carol O'Farrell, counsel for Dublin City Council, made an application that a test case be referred to the Supreme Court to decide the validity of the charges "for once and for all".

She said the council was willing to pay the costs of the appellant in the Supreme Court because of the seriousness of the issue.

"This is a very important issue for the city council and has repercussions for other local authorities," Ms O'Farrell said.

Last year both Judge Alison Lindsay and Judge Jacqueline Linnane in Dublin Circuit Court found that the council's method of fixed charges for rubbish collection in 2001 and 2002 was invalid because it did not adhere to the "polluter pays" principle in the waste management plan for the Dublin region.

However, in another case which went to the High Court, Mr Justice Quirke found that the fixed charge was lawful and was not in breach of the "polluter pays" principle.

Alistair Rutherdale, counsel for the bin-charge defaulters, said he was "flabbergasted" that Dublin City Council was seeking to have a case heard in the Supreme Court, given that it had already lost two test cases in the Circuit Court.

"In my view it's quite improper that they now ask to have a third test case listed," Mr Rutherdale said.

The newly appointed president of the Circuit Court, Judge Matthew Deery, said this was "a very large issue" and could have grave implications for the council and for other local authorities.

It appeared that different conclusions had been arrived at by judges in the High Court and the Circuit Court so the law ought to be clarified as far as it could be, Judge Deery said.

He agreed that a test case should be selected and referred to the Supreme Court.

Mr Rutherdale asked that Dublin City Council pay the costs of two senior counsel for his clients, because it was at the council's request that the case was being taken to the Supreme Court.

Judge Deery agreed to this, saying it was not an unreasonable request, because of the weighty legal issues involved.

The test case will be selected at a Dublin Circuit Court hearing next Tuesday. It is not yet clear when the Supreme Court will hear the case.

Dublin City Council welcomed the outcome of yesterday's hearing.

Jim Dowling, senior executive officer in the council's engineering department said the issue needed clarity and this would be achieved with a Supreme Court hearing.

Asked what would happen if the council lost the case, Mr Dowling said it would be premature to start considering such outcomes.

However, he said the council was not considering the possibility that it would have to repay bin charges paid during the period in question as it believed that the validity of the charges would be upheld by the Supreme Court.