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

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

PROMOTED VIDEO
News
ebooksAn unforgettable anthology of contemporary reportage
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Finance Manager - Recruitment Business (Media & Entertainment)

£28000 - £32000 per annum + negotiable: Sauce Recruitment: We have an exciting...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Day In a Page

Two super-sized ships have cruised into British waters, but how big can these behemoths get?

Super-sized ships: How big can they get?

Two of the largest vessels in the world cruised into UK waters last week
British doctors on brink of 'cure' for paralysis with spinal cord treatment

British doctors on brink of cure for paralysis

Sufferers can now be offered the possibility of cure thanks to a revolutionary implant of regenerative cells
Ranked seventh in world’s best tourist cities - not London, or Edinburgh, but Salisbury

Salisbury ranked seventh in world’s best tourist cities

The city is home to one of the four surviving copies of the Magna Carta, along with the world’s oldest mechanical clock
Let's talk about loss

We need to talk about loss

Secrecy and silence surround stillbirth
Will there be an all-female mission to Mars?

Will there be an all-female mission to Mars?

Women may be better suited to space travel than men are
Oscar Pistorius sentencing: The athlete's wealth and notoriety have provoked a long overdue debate on South African prisons

'They poured water on, then electrified me...'

If Oscar Pistorius is sent to jail, his experience will not be that of other inmates
James Wharton: The former Guard now fighting discrimination against gay soldiers

The former Guard now fighting discrimination against gay soldiers

Life after the Army has brought new battles for the LGBT activist James Wharton
Ebola in the US: Panic over the virus threatens to infect President Obama's midterms

Panic over Ebola threatens to infect the midterms

Just one person has died, yet November's elections may be affected by what Republicans call 'Obama's Katrina', says Rupert Cornwell
Premier League coaches join the RSC to swap the tricks of their trades

Darling, you were fabulous! But offside...

Premier League coaches are joining the RSC to learn acting skills, and in turn they will teach its actors to play football. Nick Clark finds out why
How to dress with authority: Kirsty Wark and Camila Batmanghelidjh discuss the changing role of fashion in women's workwear

How to dress with authority

Kirsty Wark and Camila Batmanghelidjh discuss the changing role of fashion in women's workwear
New book on Joy Division's Ian Curtis sheds new light on the life of the late singer

New book on Ian Curtis sheds fresh light on the life of the late singer

'Joy Division were making art... Ian was for real' says author Jon Savage
Sean Harris: A rare interview with British acting's secret weapon

Sean Harris: A rare interview with British acting's secret weapon

The Bafta-winner talks Hollywood, being branded a psycho, and how Barbra Streisand is his true inspiration
Tim Minchin, interview: The musician, comedian and world's favourite ginger is on scorching form

Tim Minchin interview

For a no-holds-barred comedian who is scathing about woolly thinking and oppressive religiosity, he is surprisingly gentle in person
Boris Johnson's boozing won't win the puritan vote

Boris's boozing won't win the puritan vote

Many of us Brits still disapprove of conspicuous consumption – it's the way we were raised, says DJ Taylor
Ash frontman Tim Wheeler reveals how he came to terms with his father's dementia

Tim Wheeler: Alzheimer's, memories and my dad

Wheeler's dad suffered from Alzheimer's for three years. When he died, there was only one way the Ash frontman knew how to respond: with a heartfelt solo album