Doherty v South Dublin County Council (No 2)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Charleton
• Judgment Date: 22 January 2007
• Neutral Citation: [2007] IEHC 4
• Docket Number: [2006 No.
• Date: 22 January 2007

DOHERTY v SOUTH DUBLIN CO COUNCIL & ORS

Judicial Review

in the matter of the european convention on human rights act, 2003, section

3

BETWEEN

Paddy Doherty and Bridget Doherty

Applicants

and

South Dublin County Council, the Minister for the Environment, Heritage and Local Government, Ireland and the Attorney General

Respondents

and

the Equality Authoruty

Notice Party

[2007] IEHC 4

[No. 131 JR/2006]

THE HIGH COURT

Abstract:

Planning and environmental - Travelling community - Caravan accommodation - Applicants' rights to be provided with caravan accommodation - Housing Acts 1966 to 2005 - European Convention on Human Rights Act 2003 ss. 2 and 3; Equal Status Acts 2000 to 2004 - Council Directive 2000/43/EC (The Race Directive).

The applicants sought a declaration that the failure of the respondents to ensure that the applicants were provided with a centrally heated, insulated and internally plumbed caravan was in breach of the respondents' duties under then Housing Acts 1966 to 2005, as interpreted in the light of the s. 2 of the European Convention on Human Rights Act 2003; was in breach of s. 3 of the European Convention on Human Rights Act 2003; was in breach of the Equal Status Acts 2000 to 2004; and was in breach of Council Directive 2000/43/EC (The Race Directive).

Held by Charleton J. in refusing the relief sought that the applicants' statutory rights or their human rights or constitutional rights had not been infringed.

Reporter: R.W.

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EQUALITY ACT 2004 S2

EQUAL STATUS ACT 2000 S3

EQUALITY ACT 2004 S48

EQUAL STATUS ACT 2000 PART III

EQUAL STATUS ACT 2000 S21

EQUAL STATUS ACT 2000 S25

EQUALITY ACT 2004 S59

EQUAL STATUS ACT 2000 S27

EQUALITY ACT 2004 S61

EQUAL STATUS ACT 2000 S28

EQUAL STATUS ACT 2000 S23

EQUALITY ACT 2004 S64

EQUAL STATUS ACT 2000 S38A

EEC DIR 2000/43

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963

UNFAIR DISMISSALS ACT 1977

REDMOND DISMISSAL LAW IN IRELAND 2ED 1999 3

CONSTITUTION ART 34.3.1

TORMEY v IRELAND 1985 IR 289

CONSTITUTION ART 34

DEIGHAN v HEARNE & ORS 1986 IR 603 3 ITR 253 1986 5 268

BENNION STATUTORY INTERPRETATION: A CODE 4ED 2002 53

LONRHO LTD v SHELL PETROLEUM CO LTD 1982 AC 173

EQUALITY ACT 2004 S54

MAHA LINGAM (ORSE MAHALINGHAM) v HEALTH SERVICE EXECUTIVE (HSE) UNREP SUPREME 4.10.2005 2005/36/7565 2005 IESC 89

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003

HOUSING ACT 1966 S60

HOUSING ACT 1966 S60(9)

HOUSING ACT 1988 S9

HOUSING ACT 1988 S10

HOUSING ACT 1966 PART IV

HOUSING ACT 1966 S56

HOUSING ACT 1988 S13

HOUSING (TRAVELLER ACCOMODATION) ACT 1998 S29

HOUSING ACT 1966 S56(2)

HOUSING ACT 1988 S13(7)

HOUSING (TRAVELLER ACCOMODATION) ACT 1998 PART II

HOUSING (TRAVELLER ACCOMODATION) ACT 1998 S25

HOUSING ACT 1988 S15

HOUSING (TRAVELLER ACCOMODATION) ACT 1998 S30

HOUSING ACT 1988 S2

HOUSING (TRAVELLER ACCOMODATION) ACT 1998 (COMMENCEMENT) ORDER 2000 SI 37/2000

MCDONALD v DUBLIN CO COUNCIL UNREP 23.7.80 1980/15/2682

O'REILLY & ORS v LIMERICK CO COUNCIL UNREP MACMENAMIN 29.3.2006 2006/47/9990 2006 IEHC 174

UNIVERSITY OF LIMERICK v RYAN UNREP BARRON 21.2.91 1991/6/1486

MEATH VEC v JOYCE 1994 2 ILRM 210

O'BRIEN & ORS v WICKLOW CO COUNCIL UNREP COSTELO 10.6.1994 EXTEMPORE

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 40.3

ANUFRIJEVA & ANOR v SOUTHWARK LONDON BOROUGH COUNCIL 2004 1 QB 1124

BOTTA v ITALY 1998 26 EHRR 241

HUMAN RIGHTS ACT 1998 (UK)

GHAIDAN v GODIN-MENDOZA 2004 3 WLR 113

CHAPMAN v UNITED KINGDOM 2001 33 EHRR 18

CODONA v UNITED KINGDOM UNREP ECHR 7.2.2006

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

MIN LABOUR v GRACE 1993 2 IR 53

D (T) & ORS v MIN EDUCATION & ORS 2001 4 IR 259 2001/5/1050

Facts

1 1. The applicants have been married to each other for fifty three years. They have fourteen surviving children and over one hundred grandchildren. They are members of the Irish Traveller Community. Most of their lives have been spent as nomads. Mrs. Doherty is seventy years old while Mr. Doherty is seventy five. They have always lived in a caravan. The pattern of where, and how, they have lived is a reflection of the changing legal attitudes towards their community. For decades they moved from place to place, for ten years they had lived in a place called Hillside in Galway, along with other traveller families, though without facilities. They had also lived near Ennis on a site which had basic services. As a result of trouble the site was closed down and they then lived on the side of the road for around four years. When they moved to Dublin, about ten years ago, it was the first time that they had access to any accommodation facilities or services in their lives. After an error, they were offered a place at Lynch's Lane halting site on a temporary basis pending the provision of permanent halting site accommodation. This has continued for some seven or eight years.

2 2. Lynch's Lane was opened by South Dublin County Council in the mid-1990s in order to provide serviced bays for the caravans of Travellers who traditionally pursued a nomadic way of life and to accommodate Travellers who are awaiting the provision of permanent accommodation by the Council. There are twenty four caravan bays accommodating twenty two families. The transient nature of the site means that not every bay has a standard electricity supply. To provide this, according to the Council, would mean that what was supposed to be transient or temporary becomes permanent. Their long-term plan, due to be completed in mid 2008, involves the redevelopment of Lynch's Lane to the most modern standard for the caravan accommodation of members of the Irish Traveller Community. Meanwhile, the facilities on Lynch's Lane are basic. The applicants now live in a mobile home that was purchased three or four years ago with the assistance of a loan from the Council. It has not been repaid. Its electricity supply is basic, it has no internal plumbing, so therefore toilet and shower facilities are in a central block; with pots in the caravan providing temporary relief. The applicants live and sleep in the sitting room area of the caravan in order to keep warm. Only one electrical appliance can be used at a time. The applicants are in poor health. Mrs. Doherty uses an electrically powered nebuliser for up to sixteen hours a day. The attempt to heat the caravan has caused condensation in cold weather and the resulting dampness seems to be contributing to them both picking up ailments including, in Mrs. Doherty's case, pneumonia. She needs to use the toilet frequently and, in consequence of her increasing immobility, the use of a pot at night is the best practical facility available to her. Because of concerns in relation to her health, and the poor standard of their accommodation, an occupational therapist's report was prepared in November, 2004. Whether this was brought to the attention of the Council or not at the time, it appears that it was never placed on their housing file, a fact which became apparent on 5th October, 2005, when the applicants" solicitor made a request to seek the release of the housing file.

3 3. When, on 27th April, 2005, Mrs. Doherty was discharged from the Adelaide and Meath Hospital, Dublin; Irene Dunne, the Community General Nurse, wrote to the Travellers Unit of South Dublin County Council indicating that Mrs. Doherty had a serious chest condition which in its final stages had to be treated with home oxygen. Her letter indicated that the basic needs of Mrs. Doherty were for an indoor toilet, central heating in her caravan, and hot running water. The letter continued:-

"The caravan she is living in is cold and damp and ideally needs to be replaced with a newer model with double glazing, central heating and indoor sanitation. I understand that all of this is a very tall order for the Council to meet, however as Mrs. Doherty's health is under serious stress because of their living conditions they deserve your immediate consideration in this matter."

The Offers

4 4. These proceedings were commenced in February, 2006. The first substantive offer to the applicants was made about six weeks later. The material part of the letter reads as follows:-

"The Council has been advised by the County Architect that equivalent standards and specifications required for standard type social housing under Departmental Guidelines and the Building Regulations are not found in, and cannot be achieved in respect of, caravan/mobile home type accommodation ....

In the circumstances, the Council is of the opinion that the provision of another, albeit newer, caravan with internal plumbing would not adequately or safely address the needs of the applicants or safeguard them against cold, draughts and dampness. Accordingly, the Council is unable to provide your Clients with caravan accommodation of the type sought by them. As your Clients can no longer remain in occupation of the caravan situate in Bay 16, they may now be regarded as homeless persons for the purpose of the Housing Acts. While the Council is in a position to arrange them temporary accommodation of the type offered to other homeless applicants, that is, accommodation in a "Bed and Breakfast" establishment, it is accepted that such accommodation would not be appropriate having regard to your Client's ill health and advancing years. The Council accepts that your Clients have indicated that standard housing accommodation is not generally acceptable or suitable to them as members of the Traveller...