Brady v Cavan County Council

• Jurisdiction: Ireland
• Judge: Keane, J.,Mr Justice Francis D Murphy
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 49
• Court: Supreme Court
• Docket Number: [S.C. No. 7 of 1997]
• Date: 01 January 2000

BRADY & ORS v. CAVAN CO. COUNCIL

Between:

PATRICK JOSEPH BRADY & ORS

Applicants/Respondents

AND

THE COUNTY COUNCIL OF THE COUNTY OFCAVAN

Respondents/Appellants

[1999] IESC 49

HAMILTON CJ

DENHAM J

BARRINGTON J

KEANE J

MURPHY J

No 7/1997

THE SUPREME COURT

Synopsis

Local Government

Local Government; non-compliance with statutory duty; respondent failed to maintain particular public road in "good condition and repair" as required to do by s.82, Local Government (Ireland) Act, 1898; respondent did not have resources necessary to fulfil its statutory duty in relation to six hundred roads of similar condition within the county; High Court granted order of mandamus compelling respondent to undertake repair of road in issue; appeal; government or minister not party to proceedings; whether grant of order of mandamus would be futile since an order would fail to secure compliance by respondent with its statutory duty in relation to the rest of the road network in the county; whether trial judge erred in exercising her discretion to grant order of mandamus; whether court should refuse to grant order of mandamus where respondent does not have means to comply with order and where its successful implementation depends on co-operation of bodies not before the court.

Held: Appeal allowed.

Brady v. Cavan County Council - Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J., Murphy J.* (* dissenting) - 17/06/1999 - [1999] 4 IR 99 - [2000] 1 ILRM 81

The local authority could not be ordered to repair a particular road where it had approximately 600 roads which were in need of repair and it lacked the funds to carry out repairs immediately. The order of mandamus made by the High Court was futile since it could not be complied with. The Supreme Court so held in quashing the order of mandamus made by the High Court. Murphy J. dissenting found that the local authority had a clear duty to keep roads in good repair and that, if ordered to carry out repairs, the local authority would not defy the order of the Court.

Citations:

LOCAL GOVT (IRL) ACT 1898 S82

LOCAL GOVT (IRL) ACT 1898 S109

JULIUS V BISHOP OF OXFORD 5 AC 214

BRISTOL & NORTH SOMERSET RAILWAY CO, IN RE 1877 3 QBD 10

MODERN HOMES (IRL) LTD, STATE V DUBLIN CORP 1953 IR 202

TOWN & REGIONAL PLANNING ACT 1934

TOWN & REGIONAL PLANNING ACT 1939

WESTROPP, REX V CLARE CO COUNCIL 1904 2 IR 569

LOCAL GOVT (IRL) ACT 1898 S81

HEWSON, REX V WICKLOW CO COUNCIL 1908 2 IR 101

LOCAL GOVT (IRL) ACT 1898 S27(2)

LOCAL GOVT ACT 1925

HOEY V MIN FOR JUSTICE 1994 1 ILRM 334

COURTHOUSES (PROVISION & MAINTENANCE) ACT 1935 S3(1)

R V EAST SUSSEX CO COUNCIL EX PARTE TANDY 1998 2 AER 769

LOCAL GOVT (IRL) ACT 1898 S82(3)

PUBLIC HEALTH (IRL) ACT 1896 S15(1)

R V STAINES UNION 62 LJ QB 540

HARBINSON V ARMAGH CO COUNCIL 1902 2 IR 538

RUSSELL V MEN OF DEVON 2 TR 667

COWLEY V NEWMARKET LOCAL BOARD 1892 AC 345

PUBLIC HEALTH (IRL) ACT 1896 S15

CIVIL LIABILITY ACT 1961 S60(1)

SHEEHAN, STATE V GOVT OF IRELAND 1987 IR 550

LOCAL GOVT ACT 1925 PART III S24

ROADS ACT 1993 S13(1)

ROADS ACT 1993 S12

ROADS ACT 1993 S82

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 1978

BRENNAN V AG 1984 ILRM 355

DE SMITH JUDICIAL REVIEW OF ADMINISTRATIVE LAW 5ED PARA 16–010

LOCAL GOVT ACT 1991 S7

LOCAL GOVT ACT 1991 S7(2)

LOCAL GOVT ACT 1925 S27

REX, STATE V MIN FOR JUSTICE 1984 IR 169

EDUCATION ACT 1993 S298 (UK)

TOWN & REGIONAL PLANNING REGS 1934 S R & O 334/1934

1 Judgment of Mr Justice Francis D MurphyDelivered the 17th day of June 1999

2 These proceedings raise issues as to the extent of the liability of a local authority to keep in repair roads in their areas and the nature of the remedy (if any) available in the event of their failure to perform that duty.

3 By her judgment and order dated the 20th day of December 1996 Ms Justice Carroll held that the County Council of the County of Cavan (the Appellants) had failed in their statutory duty to maintain the roadway between Ashgrove and Stag Hall, Belturbett, County Cavan andgranted to the Applicants/Respondents, who were all residents in the area, an order of Mandamus directing the Appellants to repair that roadway. It is from that judgment and order that the Cavan County Council appeal to this Court.

4 Originally the Appellants disputed the locus standi of the Respondents to maintain these proceedings. That challenge was subsequently abandoned. Again it is conceded that the Appellants do have certain obligations in respect of the repair and maintenance of the roads in their administrative area and moreover they concede - as clearly they must - that the roadway in question is (or was) in a deplorable and perhaps dangerous condition. What the Appellants disputed was the extent rather then the existence of a statutory duty to repair and the nature of the remedy (if any) available to local residents in the event of a failure to fulfil that duty.

5 Last year was the centenary of the legislation which introduced major reforms in the administration and constitution of Local Authorities. It was the Local Government (Ireland) Act, 1898, which imposed on Local Authorities the duty to maintain roads. Section 82 (1) of that Act provided that:-

"It shall be the duty of every county and district council, according to their respective powers, to keep all public works maintainable at the cost of their county or district in good condition and repair, and to take all steps necessary for thatpurpose."

6 "Public works" includes roads (see section 109 of the 1898 Act).

7 The Local Government Act 1925 (Part III) section 24 provided:-

"(1) On and after the 1st day of April, 1925:-"

(a) the maintenance and construction of all county and main roads in a county shall be the duty of the council of suchcounty;"

8 The Roads Act, 1993repealed Part III of the Local Government Act, 1925and in lieu thereof provided that:-

9 2 "13 (1) Subject to Part III, the maintenance and construction of all national and regional roads in an administrative county shall be a function of the council or county borough corporation of that county.

10 (2) It shall be a function of the council of a county, the corporation of a county or other borough or the council of an urban district to maintain and construct all local roads:-

11 (a) in the case of the council of a county - in its administrative county, excluding any borough or urbandistrict,

12 (b) in the case of any other local authority - in its administrative area.

13 (3) The local authorities referred to in subsections (1) and (2) shall be road authorities for the purposes of the roads referred to in those subsections and shall, subject to Part III and in respect of those roads, perform all the functions assigned to road authorities by or under any enactment (including this Act) or instrument.

14 (4) The expenses of the council of a county in respect of its functions under subsection (2) shall be charged on the county exclusive of any borough or urban district.

15 (5) In the performance of their functions under subsections (I) and (2), a road authority shall consider the needs of all roadusers.

16 a (6) (a) A person or group of persons may, with the consent of a road authority, carry out maintenance works on a local road.

17 (b) A consent under paragraph (a) may be given by the road authority subject to such conditions, restrictions and requirements as it thinks fit.

18 (c) Where a road authority gives its consent under paragraph (a) and the works have been carried out in a bona fide manner and in accordance with every condition, restriction or requirement specified under paragraph (b)-

19 (i) the works shall be deemed to have been carried out by the road authority, and

20 (ii) the person or group (and each member thereof) who carried out the works shall be indemnified by the by the road authority againstall actions and claims howsoever arising in respect of the works and the carrying out of works.

21 (d) A road authority may provided materials, plant, equipment and the services of its staff to a person or group carrying out works under this subsection.

22 (7) A road authority may do all such things as arise out of or are consequential on or are necessary or expedient for the performance of its functions under this Act or otherwise in relation to public roads or are ancillary thereto.

23 (8) Without prejudice to the generality of subsection (7) and save as otherwise provided by law, a road authority may û

24 (a) provide any amenity, structure or thing for the safety or convenience of road users,

25 (b) undertake landscaping, planting or any similar activity in the interests of amenity and the environment,

26 (c) provide artistic features.

27 (9) Notwithstanding the definition of "road" in section 2, nothing in this Act shall be construed as imposing on a road authority any liability, duty or obligation to -

28 (a) construct or maintain fences or retaining walls adjoining a public road which are the responsibility of any other person and which do not form part of the road, or

29 (b) construct or maintain any bridges, tunnels, railway crossings or any other structure which by virtue of any enactment are the responsibility of a railway company or other person.

30 (10) (a) A person who, without lawful authority or the consent of a road authority -

31 (i) defaces a public road by writing or by any othermeans,

32 (ii) damages a public road,

33 (iii) excavates a public road,

34 (iv) (I) places or deposits any material or thing on a publicroad,

35 (II) permits dung or urine from an animal owned by him or any material or thing which falls from a vehicle owned or used by him, to be left on a public road, or

36 (III) does any other thing, such that the material, thing, dung or urine or the doing of such other thing is a hazard or potential hazard to persons using a public...