Friday Law Report: Council could not avoid its duty to collect waste
21 May 1999 Leeds City Council v Spencer Court of Appeal (Lord Justice Evans and Lord Justice Brooke) 6 May 1999
Friday 21 May 1999
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  1 All ER 1 and R v Hillingdon LBC, ex p Royco Homes Ltd  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.
- 1 Finland schools: Subjects scrapped and replaced with 'topics' as country reforms its education system
- 2 The West has it totally wrong on Lee Kuan Yew
- 3 #FreeTheNipple: Women in Iceland bare breasts in solidarity with trolled student
- 4 Scientists have discovered a simple way to cook rice that dramatically cuts the calories
- 5 Zayn Malik quits One Direction: Hundreds of workers request compassionate leave following band member's exit
Germanwings captain Patrick Sondenheimer tried to break into locked cockpit door 'with an axe' as plane was descending
Amanda Knox murder conviction: Italian court overturns verdict for US student and Raffaele Sollecito in the killing of Meredith Kercher
Saudi Arabia says it won't rule out building nuclear weapons
The battle for the Middle East's future begins in Yemen as Saudi Arabia jumps into the abyss
#FreeTheNipple: Women in Iceland bare breasts in solidarity with trolled student
Nigel Farage brands LGBT activists 'filth' and 'scum' and accuses them of scaring away his children after they invade his local pub
Ukip supporters are 55 or older, white and socially conservative, finds British Social Attitudes Report
JK Rowling responds to fan tweeting she 'can't see' Dumbledore being gay
Russia threatens Denmark with nuclear weapons if it tries to join Nato defence shield
Jeremy Clarkson sacked live: Alan Yentob 'wouldn't rule out' ex Top Gear host's BBC return
Germanwings plane crash: Co-pilot Andreas Lubitz wanted to 'do something people would remember him for'
£35000 - £38000 per annum: Recruitment Genius: This dynamic outsourced contact...
£19000 - £21000 per annum: Recruitment Genius: An excellent opportunity for a ...
£28000 - £32000 per annum: Ashdown Group: Group HR Advisor with an established...
£40 - 50k (DOE) + Bonus: Guru Careers: We are seeking a HR Manager / HR Genera...