Burke v South Dublin County Council

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date04 December 2013
Neutral Citation[2013] IEHC 185,[2013] IEHC 555
CourtHigh Court
Date04 December 2013

[2013] IEHC 185

THE HIGH COURT

[No. 653 J.R./2011]
Burke v South Dublin Co Council

BETWEEN

Gerard Burke
Applicant
V.
South Dublin County Council
Respondent

CONTROL OF HORSES ACT 1996 S20

CONTROL OF HORSES ACT 1996 S39(3)

CONTROL OF HORSES ACT 1996 S37

THOMPSON v MIN FOR SOCIAL WELFARE 1989 IR 618

CONTROL OF HORSES ACT 1996 S39(5)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

LOFTUS v AG 1979 IR 221

CONTROL OF HORSES ACT 1996 S40

CONTROL OF HORSES ACT 1996 S40(5)

CONTROL OF HORSES ACT 1996 S40(6)

HAUGHEY, IN RE 1971 IR 217

DELLWAY INVESTMENTS LTD v NAMA 2011 4 IR 1 2011 IESC 14

EUROPEAN COMMUNITIES (KNACKERY) REGS 1996 SI 396/1996 REG 10

CONTROL OF HORSES ACT 1996 S37(1)

CONTROL OF HORSES ACT 1996 S39(2)(E)

CONTROL OF HORSES ACT 1996 S2

O'DRISCOLL & MCCARTHY v LIMERICK CO COUNCIL UNREP FEENEY 9.11.2011 2012/34/10209 2012 IEHC 594

CONTROL OF HORSES ACT 1996 S3

CONTROL OF HORSES ACT 1996 S29

CONTROL OF HORSES ACT 1996 S37(1)(F)

Judicial review – Seizure, detention and destruction of horses – Application for orders of certiorari quashing the decision – Failure to pay impound fees – Damages

Facts: In these judicial review proceedings the applicant sought orders of certiorari quashing the decision of the respondent local authority to withhold horses taken from his property by a third party which had ended up on a public road. The decision to withhold the horses was based on the fact that impound fees had not been paid in advance, the respondent ultimately disposed of the horses. The applicant contends that the respondent was ultra vires in doing so and that he is entitled to damages for the unlawful slaughtering.

The court had to decide upon two issues, firstly was the respondent entitled to withhold the appellant”s horses until the impound fees were paid and secondly was the disposal of the horses lawful.

In regard to the issue of withholding the horses, although no fault could be attributed to the applicant for the horses ending up on a public road, he was still obliged to bear the costs which resulted from the respondent having to hastily round them up in order to remove the danger posed to the public.

Hedigan J held there was no specific provision empowering the local authority to detain the horses until the fees were paid, an owner”s property rights could not be removed to enforce a debt unless by order of the court. The respondent”s actions in disposing of the horses were therefore ultra vires and not in accordance with the law.

Statute and by-laws were not followed by the respondent; their role is to ensure that the property rights of citizens are balanced with the need to protect public safety. The failure to do so in the case led to a lack of transparency and confusion as to what actually occurred.

The court issued a declaration of certiorari, quashing the decisions made by the local authority.

Application
1

1. In these proceedings the applicant is seeking judicial review of the actions of the respondent in the seizure, detention and destruction of horses belonging to him.

Specifically the applicant seeks orders of certiorari quashing the decision of the respondent to withhold his horses on the basis that impound fees had not been paid in advance and quashing its decision to ultimately dispose of his horses. He furthermore seeks a declaration that the respondent acted ultra vires by refusing to return his horses to him on the stated basis that impound fees were unpaid and a declaration that the policy implemented by it of detaining and disposing of horses where fees have not been paid does not respect the applicant's constitutional rights to fair procedures. In addition the applicant seeks damages arising from the wrongful and unlawful slaughtering of his horses.

Parties
2

2. The applicant is a farmer who also operates a livery in Rathfarnham, Dublin 14. The respondent is the county council with responsibility for the administrative area of South County Dublin.

Factual background
2

2 3.1 The applicant operates a livery and farm at Woodstown Manor, Stocking Lane, Rathfarnham, Dublin 14. On Monday the 13 th June, 2011, the applicant inspected his lands and discovered that five horses that had been on the lands were missing. Four of the horses were owned by the applicant himself. The applicant contends that three of these were prize Connemara ponies and the fourth was a showjumper. The fifth horse belonged to Mr. Kevin Dunne with whom the applicant had a livery arrangement. As soon as he realised that the horses were missing, the applicant notified the Gardaí. He also inspected the perimeter fencing of the lands and could find no breach. Nor did he see any sign of horse manure on the road around the fields. Mr. Dunne also inspected the perimeter fencing and found it to be intact. The Gardaí attended the lands and the applicant states that they were satisfied that the escape was not due to negligence on his part. They concluded that it was likely that the horses had in fact been stolen.

3

3 3.2 Meanwhile, the respondent had received a report of stray horses on a public road at Old Court Road, Rathfarnham in South County Dublin. Since they constituted a serious danger to the public the horses were rounded up by the DSPCA. The horses were then passed on to the council's contractor Cantor Equine Ltd. who is appointed by the respondent for the seizure and impoundment of horses under the Control of Horses Act 1996.

4

4 3.3 On the 14 th June, 2011, the applicant contacted the respondent and informed it that he owned the horses. He was advised that the horses were in the possession of the respondent and he was advised in regard to the procedures for reclaiming the horses. He was informed that if he wished to have the horses released he would have to produce their licenses and passports and also pay an impound fee for their release. This fee related to the seizure and detention of the horses and is provided for under the Control of Horses Act 1996. The respondent indicated it would not release the horses until this fee was discharged.

5

5 3.4 The applicant was informed by the respondent that only two of the five horses were micro-chipped (one of the micro-chipped horses belonged to Mr. Dunne). This is a matter of dispute between the parties as the applicant argues that all of his horses were chipped with the exception of a foal. The applicant was also informed that his horses did not have licences.

6

6 3.5 On the 15 th June, 2011, Mr. John Murphy, chief veterinary officer of the Environmental Services Department of South Dublin County Council, was sent to the applicant's lands to inspect them. Such an inspection is a requirement under the South Dublin County Council Horse Bye-Laws and is necessary prior to horse licenses being issued in accordance with s.20 of the 1996 Act and prior to the return of the horses to their owner. Its purpose is to ensure that the facilities for maintaining the horses are adequate and that the owner is fit to take care of them. The veterinarian found that everything was in order.

7

7 3.6 On the 17 th June, 2011, Mr. Dunne reclaimed his horse. The applicant discharged his impound fee on the basis that they had a livery arrangement. His horse was returned to him on the 20th June.

8

8 3.7 On the 28 th June, 2011, the applicant applied for licences, paying for one licence in cash and the others by cheque. The four licences were issued to him immediately. However, on the 5 th July, 2011, the cheque was returned to the respondent unpaid and marked "return to drawer". The applicant contends that he did not know that the cheque for the licences had "bounced" and he was not made aware of this by his bank.

9

9 3.8 From the outset a significant exchange of correspondence ensued between the applicant's solicitors and the respondent seeking the return of the horses, wherein the applicant argued that he should not be held liable for payment of the round-up and impound fees as he was not culpable for the escape of the horses, whose disappearance could only have been brought about by criminal action. He argued that the respondent's requirement to pay fees up front was unfair and such a policy should not be applied rigidly in his case given the particular circumstances of it. On the 6 th July, 2011, the applicant's solicitors in a letter to the respondent inquired if there was a facility for him to make representations either orally or in writing to this effect. The respondent replied, also on the 6 th July, indicating that it had already disposed of the horses by way of manager's order of the 1 st July, 2011.

10

10 3.9 The applicant sought leave to apply for judicial review of the council's decision to dispose of the horses on the 25 th July, 2011 Mr. Justice Peart inquired at the leave stage as to whether or not the horses in question were still alive. Neither the applicant nor the respondent were in a position to answer this. However, in a letter dated the 28 th July, 2011, the respondent informed the applicant that the horses were indeed alive and had been "re-homed" on the 2 nd July, 2011, and thus were then in the possession of new owners. It indicated however that it would not reveal the identity of the new owners. This information was given to Mr. Justice Peart who granted the applicant leave to seek judicial review on that basis. However, it subsequently transpired that the information in this regard was incorrect and that the horses had in fact been killed.

11

11 3.10 The applicant was first made aware of this fact when the respondent indicated in a letter to his solicitors dated the 22 nd November, 2011, that Cantor Equine Ltd had disposed of one horse on the 5 th July, 2011, and the remainder of them on the 30 th July, 2011. Subsequently by letter of the 7 th...

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3 cases
  • McDonagh v Galway County Council
    • Ireland
    • High Court
    • 10 Mayo 2019
    ...In that regard, the applicant, Mr McDonagh, relied on the judgment of the High Court (Hedigan J) in Burke v South Dublin County Council [2013] IEHC 185. The applicant maintained that a local authority is not entitled to use its statutory power to destroy an animal for the sole purpose of, a......
  • McDonagh v Galway County Council
    • Ireland
    • High Court
    • 1 Noviembre 2019
    ...This power has been fairly characterised as “Draconian” by the High Court (Hedigan J.) in Burke v. South Dublin County Council (No. 1) [2013] IEHC 185. The Control of Horses Act 1996 and the Bye-Laws prescribe few enough constraints on the exercise of this power. One such constraint is tha......
  • O'Donoghue v Laois County Council
    • Ireland
    • High Court
    • 31 Julio 2020
    ...no basis for reading in such a requirement. Counsel relied on the statement of Hedigan J. in Burke v. South County Dublin County Council [2013] IEHC 185, where a similar argument had been made, but was firmly dismissed as follows:- ‘Accepting that he was not at fault however does not mean t......

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