Brady v Cavan County Council

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1997
• Neutral Citation: [1996] IEHC 37
• Date: 01 January 1997
• Court: High Court

[1996] IEHC 37

THE HIGH COURT

No. 311 J.R./1994

BRADY v. CAVAN CO COUNCIL

JUDICIAL REVIEW

BETWEEN

PATRICK JOSEPH BRADY, ROSALEEN BRADY, OLIVER BRADY, GERARD BRADY, MARIE BRADY, MARTIN BRADY, TOM JOE BRADY, ROSE BRADY, SEAN BRADY, ROSE MARY BRADY, PATRICK BURNS, PATRICIA BURNS, ANDY CASSIDY, MARGARET CASSIDY, SEAN DOWD, MAJELLA DOWD, MARTIN FAY, MAUREEN LEDDY, TOM LEDDY, PATRICK LEDDY, CELESTINE LEDDY, KEVIN LUDLOW, MARK McDONALD, ROSE McDONALD, MARION McGURREN, JAMES McGURREN, DENNIS McKIERNAN, EILEEN McKIERNAN, CAROLINE MOORE, WILLIAM MOORE, DESSIE O'REILLY, P. J. O'REILLY, BRIAN SEAGRAVE,JOHN WILSON

APPLICANTS

AND

THE COUNTY COUNCIL OF THE COUNTY OF CAVAN

RESPONDENTS

Citations:

LOCAL GOVT (IRL) ACT 1898 S82(1)

ROADS ACT 1993 S4

ROADS ACT 1993 S13

ROADS ACT 1993 S13(2)

ROADS ACT 1993 S13(1)

KEANE ON LOCAL GOVT 66

LOCAL GOVT (IRL) ACT 1898 S1

WESTROPP, R V CLARE CO COUNCIL 1904 2 IR 569

HOEY V MIN FOR JUSTICE 1994 ILRM 334

SHANNON REGIONAL FISHERIES V CAVAN CO COUNCIL UNREP MURPHY 21.12.94 1995/5/1621

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 1978 S9

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 1978 S3

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 1978 S4

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 1978 S6

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S9

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S9(1)

LOCAL GOVT ACT 1994 S46

LOCAL GOVT ACT 1925 S24

LOCAL GOVT ACT 1925 S27(1)

FINANCE ACT 1929 S7

ROADS ACT 1993 S82

ROADS ACT 1993 S13(5)

LOCAL GOVT ACT 1991 S7(1)

HEWSON, R V WICKLOW CO COUNCIL 1908 2 IR 101

O'REILLY V LIMERICK CORPORATION 1989 ILRM 181

LOCAL GOVT ACT 1991 S7(2)

ROADS ACT 1993 S13(3)

ROADS ACT 1993 S13(6)

ROADS ACT 1993 S13(9)

Synopsis:

[1997] 1 ILRM 390

1 Miss Justice Carroll the 6th day of December 1996

2 This is an application for Judicial Review by way of Mandamus sought by the Applicants who are all residents of an area between Ashgrove and Stag Hall, Belturbet, Co. Cavan. They claim the County Council has failed in its statutory duty to maintain the road between Ashgrove and Stag Hall in good condition and repair. They claim the road is no longer safe to use and poses a real danger to road users. Liberty to issue the application for Judicial Review was granted on the 25th July, 1994.

3 In its statement of opposition the County Council pleaded that the Applicants did not have locus standi. This plea was later dropped and it was conceded that they did have locus standi. The County Council denied it had a statutory duty to repair and claimed that at all times it acted reasonably in discharge of its functions of repair, in particular having regard to the resources available or likely to be available to it. It pleaded that it must perform all its functions within an overall budget derived from grants from Central Government rates, payments and service charge payments. In allocating resources within that budget to roads it exercises its functions under the statutory powers vested in it fairly and reasonably, in accordance with natural justice and not arbitrarily.

4 Mr. Tiernan, the county engineer, in his affidavit explains that County Cavan is broadly underlaid by a weak drumlin soil which when saturated has very low strength. It underlies approximately thirty seven per cent of the land area. The development of farm mechanisation has contributed to the break up of roads as has the increased permissible axle loading from 8 tonnes to 10.5 tonnes. Since the removal of rates from private dwellings in 1977 and from agricultural land in 1983, the County Councils are dependant on Government to make up lost revenue. This has not kept the pace with inflation. He said the Department seeks to match limited resources to unlimited/unachievable demands.

5 Cavan County Council receives funds through three sources, the levying of service charges, the levying of rates on commercial property and State support or other grants from Central Government.

6 He claims the County Council has a very small base for the payment of service charges (less than five thousand homes including homes liable for only partial charges) and the charges are levied at as high a figure as the County Council believes the market would bear. It is in a similarly disadvantageous position in raising finance through commercial rating. He said the County Council has no control whatsoever over Central Government funding although it makes representations regularly and at length. He said of 1350 County Roads in Cavan approximately six hundred could be described as being in a broadly comparable position towards the roads mentioned in these proceedings. It will cost approximately £40 million to bring all those roads into a satisfactory condition. To raise this money through rating would require the current rate on commercial property to be raised by about £92 in the pound bringing the total rate in the pound, to a figure in excess of £122 for eight years. It would cost £140,000 to bring the roads in this application to a satisfactory condition. £20,000 was expended on repairs on these roads in 1994, a decision which was taken before the issue of proceedings. He said the County Council is obliged to perform its functions within an overall budget. They have a total road survey every three years. This enables a total data base to be made depicting the road conditions in the entire network in the county.

7 The County Council did not dispute the factual condition of the roads (apart from pointing out the repairs). The position therefore is that this area comprises minor county roads, whose condition has deteriorated and which are dangerous to vehicles. The County Council has not enough money to repair them.

8 The legal issues are (a) whether there is a statutory duty to repair and maintain the roads (b) whether the lack of resources is a defence, and (c) whether there are discretionary grounds to refuse relief.

9 Section 82(1) of the Local Government (Ireland) Act. 1898("The 1898 Act") (which is still in force) provides that:-

" ........it is 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 that purpose."

10 "Public works" includes roads (see Section 109 of the 1898 Act). Section 24 of the Local Government Act. 1925 (Part III) provides:-

11 2 "(1) On or after the 1 st day of April, 1925

12 (a) the maintenance and construction of all county and main roads in a County shall be the duty of the Council of such County;"

13 (b) .....................

14 Section 4 of the Roads Act. 1993 repealed Part III of the Local Government Act, 1925. In its stead it provided by Section 13:-

15 2 "(1) Subject to Part III, the maintenance and construction of all national and regional roads in an administrative county shall be the function of the Council or County borough Corporation of that County.

16 (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 -

17 (a) in the case of the Council of the County-in its administrative County, excluding any Borough or Urban District

18 (b) in the case of any local authority - in its administrative area."

19 Under section (2) of the same Act "functions" includes powers and duties. Section 13 further provides:-

20 2 "(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.

21 (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.

22 (5) In the performance of their functions under subsections (1) and (2), a road authority shall consider the needs of all road users. -----------------

23 (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 -

24 (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

25 (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."

26 The Applicants submitted that that is an explicit reference to the liability, duty or obligation to construct or maintain roads and is internal evidence that ss(l) and (2) are indeed referring to the same.

27 The general rule is that the local authority must maintain the road in a condition adequate to meet ordinary traffic. [See Keane on Local Government (at p.66)].

28 The Applicants submit that Mandamus is the appropriate remedy. Section 1 of the Local Government (Ireland) Act, 1898 provides:-

" Where a Mandamus is issued by the High Court to any County or District Council, and the Council fails to comply therewith, the Court may appoint an officer and confirm on him all or any of the powers of the defaulting Council which appear to the Court necessary for carrying into effect the Mandamus."

29 Mandamus will issue in the case of nonfeasance (see R(Westropp) -v- Clare County Council) 1904 2 I.R. 569. If Mandamus is not granted there is no remedy available to the Applicants. They have a statutory right to have their roads maintained. It is not an answer to the Applicants' case that potential rights may be prejudiced if their roads are repaired. The County Council cannot escape liability by saying which among its duties...