UCC 8 th ANNUAL ENVIRONMENTAL LAW CONFERENCE Waste Law Update. Alison Fanagan A&L Goodbody

Transcription

1 UCC 8 th ANNUAL ENVIRONMENTAL LAW CONFERENCE 2010 Waste Law Update Alison Fanagan A&L Goodbody

2 New Regulations Panda / Greenstar: High Court decisions Policy Developments / What s next? 2

3 Waste Management (Prohibition of Waste by Burning) Regulations 2009 (SI 286/2009) Waste Management (Food Waste) Regulations 2009 (SI 508/2009) Waste Management (Landfill Levy) (Amendment) Regulations 2009 (SI 550/2009) Waste Management (Management of Waste from the Extractive Industries) Regulations 2009 (SI 566/2009) Waste Management (Landfill Levy) Order 2010 (SI 13 and SI 31/2010) Waste Management (Landfill Levy) (Amendment) Regulations 2010 (SI 31/2010) Waste Management (Registration of Sewage Sludge Facility) Regulations 2010 (SI 32/2010) 3

4 Policy Developments: International Review of Waste Policy Eunomia / Dr Dominic Hogg Key Recommendations:» Levies for landfill, incineration and MBT (NB: Consultation Proposal)» Competition for the waste collection market» Contracts guaranteeing only waste over which have direct control» Segregated collection of waste streams (including textiles)» Householders mandated to avail of a waste service» Development of food waste management» New targets proposed» Regional Waste Plans replaced with a National one» Improved recycling centres / waste management facilities» Change criteria for distribution of Environment Fund 4

5 Panda and Greenstar v Four Dublin Local Authorities High Court, Competition Division decisions of McKechnie J. 21 December 2009 Hearings October / December 2008 Permit Review: Direction of Waste Condition Appeals, prosecutions Appeal to Supreme Court? 5

6 Panda Case: Background Dublin City Council (DCC) = Regulator for four Dublin Local Authorities Granted Waste Permit to Panda: 13 December 2002 Dublin Waste Management Plan 1990/1999 Review commenced 2004, led to Waste Management Plan for Dublin Region Direction of Waste for environmental reasons, to a tier of waste hierarchy using Permit system Panda enter Dublin Household Collection Market: November

7 DCC threatened prosecution: December 2006 DCC commenced Waste Permit Review: February 2007 DCC / Panda meeting: March 2007 DCC announce intention to vary Waste Plan: June

8 Consultation on proposed variation (to restrict household waste collection); DCC issued RPS and O Toole Reports: September 2007 Panda and Greenstar made detailed submissions: November 2007 Variation approved, RPS Response Report published: March

9 Judicial Review Proceedings Competition Division of High Court Competition and Administrative Law Grounds: Leave obtained Exchange of Pleadings, Affidavits and Expert Reports Lengthy hearings; some duplication with Greenstar McKechnie J. heard both cases Oral evidence, expert testimony Key: Interaction of competition and environment issues 9

10 Issue 1 Was DCC an Undertaking per S.3 Competition Act 2002?» i.e. an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service.» Fact a body exercises regulatory or public power will not automatically exclude all of its activities from being considered economic in nature. McKechnie J. Activities severable? Answer: YES, even though Variation a Regulatory Function, because of its economic effect 10

11 Issue 2 Relevant Market geographic and product: Dublin Region, household waste collection Issue 3 S. 4 Competition Act 2002 Was there an agreement between Undertakings? Yes Did it have as its object or effect the prevention, restriction or distortion of competition? Yes 11

12 Issue 4 Is it exempted by S.4(5)? Contribute to improve service provision? Promote technical / economic progress? Reasonable terms? Competition restriction, not elimination? Onus on Respondents Environmental expert evidence Economists expert evidence McKechnie J: Not justified 12

13 Issue 5 Abuse of Dominance: S.5 Competition Act 2002 Any abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or any part of the State is prohibited. Dominance? Yes and NB: Regulatory and enforcement functions Abuse? Yes The only bodies which ultimately benefit from the Variation are the Respondents, since it would restore them to a de facto position of monopoly : McKechnie J. 13

14 Issue 6 Ultra Vires, Error of Law? Power to make or amend Waste Management Plans: S.22 of 1996 Act Environmental v economic objective Monopolisation of the market not provided for Ownership of waste not vested de facto in the local authorities Variation ultra vires 14

15 Issue 7 Bias via prejudgment Objective test: Reasonable apprehension by a reasonable person, who has knowledge of all the facts 1 Decision making bodies are required to approach matters before them with an open mind : McKechnie J. The appearance of what is being done is critical 1 Poolbeg contract, and Meeting with Matt Twomey, DCC: March Denham J. O Neill v Beaumont Hospital [1990] 1 LRM

16 Bias via prejudgment (continued) Poolbeg Contract I am satisfied that in circumstances where the Respondents may only direct waste to a tier within the waste hierarchy, and not a specific facility, and where they have obligations to deliver a minimum tonnage of waste to the Poolbeg facility, a reasonable person would find that they would have an interest in ensuring that they would be able to meet their contractual obligations. (Obiter) 16

17 Bias via prejudgment (continued) Meeting with Matt Twomey, DCC, March 2007 Ultimately accepted he told Panda representatives he would do everything in his power to prevent private household waste collection (inter alia) Reasonable person entitled to apprehend prejudgment RPS and O Toole Reports Such massaging of reports, which were later, in their edited versions, released publicly, is a strong indicator, to me, of unacceptable influence in a process carried out in the public interest. 17

18 Issue 8 Rationality / Reasonableness» Tough test, O Keefe2 principles i.e. must show the decision making authority had before it no relevant material which would support its decision Variation not irrational» Issue 9 Legitimate Expectation» Issue 10 Grant of a permit does not in itself give rise to a legitimate expectation Disproportionate interference with Property Rights / Right to Earn a livelihood» Variation not in breach 2 O Keefe v An Bord Pleanála [1993] 1 IR 39 18

19 Panda succeeded Greenstar succeeded: Similar basis to Panda No breach of fair procedures re oral hearing or giving of reasons Structural bias not established 19

20 What s Next? Appeal? What happens in the interim? Waste Management Plan for the Dublin Region due for Review Authorised Person (John Hennessy SC) to review Poolbeg Contract Legislation: Eunomia Report / Recommendations / ERSI Report Minister Gormley's Roadmap to New Waste Policy 30 March

21 Thank you for listening! Alison Fanagan Head of Planning & Environment A&L Goodbody Phone Web 21