County Meath v.E.C. v Joyce

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [1993 No. 28 M.C.A.]
• Court: High Court

High Court

[1993 No. 28 M.C.A.]

County Meath v. E.C. v. Joyce

In the matter of the Local Government (Planning and Development) Acts, 1963-1990, County Meath Vocational Education Committee

Applicant

and

David Joyce and Others, Respondents, and Meath County Council, Third Party

Cases mentioned in this report:—

McDonald v. Feely (Unreported, Supreme Court, 23rd July, 1980).

McNamee v. Buncrana U.D.C. [1983] I.R. 213; [1984] I.L.R.M. 77.

Housing - Housing authority - Statutory duty - Whether statutory duty to provide halting facilities for homeless travellers - Planning injunction - Travellers making unauthorised use of roadside - Joinder of housing authority as third party - Indemnity/contribution for breach of statutory duty - Housing Act, 1966 (No. 21), ss. 53, 54, 55, 56, 60 and 111 - Local Government (Planning and Development) Act, 1976 (No. 20), s. 27- Housing Act, 1988 (No. 28), ss. 2, 8, 9, 10, 11 and 13 - Local Government (Planning and Development) Act, 1992 (No. 14), s. 19, subsection 4 (g).

Local Government - Planning - Housing - Unauthorised use of roadside as halting site - Pollution and nuisance - Planning injunction - Housing authority joined as third party - Whether statutory duty to provide halting site for homeless travellers - Housing Act, 1966 (No. 21), ss. 53, 54, 55, 56, 60 and 111 - Local Government (Planning and Development) Act, 1976 (No. 20), s. 27 - Housing Act, 1988 (28), ss. 2, 8, 9, 10, 11 and 13 - Local Government (Planning and Development) Act, 1992 (No. 14), s. 19, sub-section 4 (g).

Practice and procedure - Planning injunction - Third party procedure - Unauthorised halting site - Whether housing authority can be joined to obtain indemnity/contribution for breach of statutory duty to provide halting site for homeless travellers - Housing Act, 1966 (No. 21), ss. 53, 54, 55, 56, 60 and 111 - Local Government (Planning and Development) Act, 1976 (No. 20), s. 27 - Housing Act, 1988 (No. 28), ss. 2, 8, 9, 10, 11 and 13 - Local Government (Planning and Development) Act, 1992 (No. 14), s. 19, sub-s. 4 (g).

Notice of motion.

The facts and the relevant statutory provisions are summarised in the headnote and appear in the judgment of Flood J., infra.

The applicant by notice of motion dated the 22nd June, 1993, sought injunctive relief against the respondents under s. 27 of the Local Government (Planning and Development) Act, 1976, as substituted by s. 19, sub-s. 4 (g) of the Local Government (Planning and Development) Act, 1992, in the following terms:—

"(a) an order pursuant to the above mentioned section restraining the respondents and each of them, their servants or agents or any person having notice of the making of such order from parking, halting, placing, or situating any vehicle or structure and in particular any caravan, tent, mobile home, motor car, van, lorry, bicycle, trailer or any temporary dwelling whatsoever on [the subject] lands . . .;

(b) an order directing and requiring the respondents and each of them, their servants or agents and any person having notice of the making of such order to remove from said lands all such vehicles and structures forthwith;

(c) further or alternatively an order prohibiting the continuance of the unauthorised use of the said lands;

(d) if necessary an order directing and requiring the respondents and each of them, their servants or agents to restore the said lands to its condition prior to the commencement of the unauthorised user as aforesaid."

By third party notice dated the 14th July, 1993, the respondents sought an indemnity or contribution from Meath County Council, quahousing authority, in the terms indicated in the judgment herein.

The case was heard on the 18th, 22nd and 25th February, 1994. By order dated the 25th February, 1994, Flood J. restrained the respondents from trespassing or causing a nuisance on the applicant's school premises, and from interfering in any way whatsoever with persons attending the applicant's school, but reserved his judgment on the substantive issues until the 22nd March, 1994.

In addition, Flood J. ordered the applicant to bear its own costs of the proceedings.

Following the decision of Flood J., three further orders were made. On the 25th March, 1994, the respondents were awarded the costs of the third party proceedings but not the costs of the s. 27 motion as against the applicant. An order of the 9th April, 1994, confirmed the previous orders. On the 29th April, 1994, the respondents were ordered to vacate the unauthorised site.

Section 27, sub-s. 1 of the Local Government (Planning and Development) Act, 1976, as substituted by s. 19, sub-s. 4 (g) of the Local Government (Planning and Development) Act, 1992, empowers the High Court to require a person to do, or not to do, or to cease doing whatever the court considers necessary to ensure that an unauthorised use of land is not continued.

The respondents represented a group of travellers sited upon a roadside near to the school premises of the applicant. The respondents generated considerable noise and pollution in the locality, and were offensive and abusive to persons connected with the applicant's school. The applicant sought an injunction under s. 27 of the Local Government (Planning and Development) Act, 1976, as amended, restraining the unauthorised use by the respondents of the roadside as a halting site.

The respondents joined Meath County Council, qua housing authority, as a third party in the above proceedings for the purpose of obtaining an indemnity or contribution. The respondents contended that their exposure to legal proceedings arose out of the third party's breach of statutory duty in failing to provide accommodation for homeless persons under the Housing Acts, 1966 and 1988.

The relevant provisions of the Housing Acts, 1966 and 1988, are as follows.

Section 2 of the Housing Act, 1988:—

"A person shall be regarded by a housing authority as being homeless . . . if-

• (a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him . . . can reasonably occupy or remain in occupation of, or . . . and he is, in the opinion of the authority, unable to provide accommodation from his own resources."

Section 13, sub-ss. 1 and 2 of the Housing Act, 1988:—

"A housing authority may provide, improve, manage and control sites for caravans used by [persons who traditionally pursue or have pursued a nomadic way of life] . . ."

Section 9, sub-s. 2 (a) and (b) of the Housing Act, 1988, provides that a housing authority is obliged, in making a housing assessment for persons in need of housing accommodation pursuant to s. 9, sub-s. 1, to have regard, inter alia, to the need for housing of homeless persons, or persons to whom s. 13 applies.

Section 11 of the Housing Act, 1988, provides that a housing authority is required to make a scheme determining the order of priority to be accorded in the letting of dwellings to persons in need...