Friday Law Report: Council could not avoid its duty to collect waste

1 May 1999 Leeds City Council v Spencer Court of Appeal (Lord Justice Evans and Lord Justice Brooke) 6 May 1999

A LOCAL authority could not avoid its public law duty imposed by the Environmental Protection Act 1990 to collect household waste by serving a notice under section 4(1) of the Prevention of Damage by Pests Act 1949, requiring the owner of property to clear the waste.

The Court of Appeal set aside an order that the defendant pay the council's ex- penses in clearing waste from his property.

The council served a notice on the defendant pursuant to section 4 of the Prevention of Damage by Pests Act 1949 in respect of an accumulation of rubbish in the communal bin yard of three tenanted properties which he owned. The defendant refused to comply with the notice, taking the view that it was for the council to clear the rubbish. He thereafter refused to pay the council the expenses it had reasonably incurred when, on his default, it had taken the steps required by the notice pursuant to section 5 of the Act.

The council commenced proceedings under the small claims procedure in the county court to recover those expenses. The district judge dismissed the claim, holding that the council was obliged under the Environmental Protection Act 1990 to collect household waste without limit as to quantity from the domestic properties in question, since the Controlled Waste Regulations 1992, which permitted an authority to charge for the collection of certain substances or articles, did not apply to the present case; that, since the accumulation of waste in the yard was caused by the council's breach of duty, it could not circumvent its inability to charge for waste removal pursuant to section 45(3) of the 1990 Act by serving a notice under section 4(1) of the 1949 Act; and that in those circumstances the council's decision to serve a section 4(1) notice was Wednesbury unreasonable and/or unlawful as being in breach of its statutory duties under the 1990 Act.

He held, alternatively, that the council's decision to serve a section 4(1) notice on the defendant as owner rather than on his tenants as occupiers was Wednesbury unreasonable.

The council successfully appealed to the judge, who held that section 45 of the 1990 Act created a duty which the council owed to the occupiers of domestic property and not to a non-occupying owner like the defendant; that section 2 of the 1949 Act placed an independent and separate duty on the council to secure that the district was kept free of rats and mice; and that its entitlement to serve a notice under section 4(1) of the Act was not qualified as a matter of statutory construction by the existence of a duty to collect household waste under the 1990 Act. The defendant appealed against that decision.

Jonathan Manning (Bury & Walkers, Leeds) for the defendant; James Allen QC and Christopher Dodd (Legal Service Agency, Leeds City Council) for the council.

Lord Justice Brooke said that the judge had erred in characterising the council's duty under section 45 of the 1990 Act as if it were a private law duty owed to the occupiers alone. It was a public law duty, of which the High Court could require performance by an order of mandamus.

The unsatisfactory position in the bin yard had been allowed to arise by reason of the council's breach of its public law duty under section 45(1) of the 1990 Act. In choosing to serve a notice under section 4(1) of the 1949 Act on the defendant as owner of the premises rather than to clear the waste from the bin yard at its own expense it was imposing on the defendant the cost of discharging an obligation which Parliament had imposed on it.

Although the facts were quite different, the governing principle was clearly set out in two well known cases to which the court had been referred: Hall & Co Ltd v Shoreham-by-Sea UDC [1964] 1 All ER 1 and R v Hillingdon LBC, ex p Royco Homes Ltd [1974] 2 All ER 643, by parity of reasoning, the authority's decision to serve the section 4(1) notice was ultra vires. The judge's order would accordingly be set aside, and the judgment of the district judge restored.

Kate O'Hanlon

Barrister