O'Donnell and Others v South Dublin County Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 11 January 2008
• Neutral Citation: [2008] IEHC 454
• Docket Number: RECORD No. No. 1339 J.R./2006
• Court: High Court
• Date: 11 January 2008

[2008] IEHC 454

THE HIGH COURT

RECORD No. No. 1339 J.R./2006

O'Donnell (A Minor) & Ors v South Dublin Co Council & Ors

JUDICIAL REVIEW

BETWEEN/

MARY O'DONNELL, PATRICK O'DONNELL, MICHAEL O'DONNELL (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND MARY O'DONNELL), ELLEN O'DONNELL (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MARY O'DONNELL), MARY O'DONNELL (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MARY O'DONNELL), PATRICK O'DONNELL (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND MARY O'DONNELL), MARGARET O'DONNELL, (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MARY O'DONNELL), TERESA O'DONNELL, (A MINOR SUING BY HER MOTHER AND NEXT FRIEND MARY O'DONNELL), AND GERRY O'DONNELL (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND MARY O'DONNELL)

APPLICANTS

AND

SOUTH DUBLIN COUNTY COUNCIL, THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

DOHERTY v SOUTH DUBLIN CO COUNCIL & ORS (NO 2) 2007 2 IR 696 2007/15/3009 2007 IEHC 4

HOUSING ACT 1988 S2

HOUSING ACT 1966 S56

HOUSING ACT 1988 S13

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S29

HOUSING ACT 1966 S56(2)

HOUSING ACT 1988 S13(7)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 PART II

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S25

HOUSING ACT 1988 S15

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S30

HOUSING ACT 1988 S5

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992 S37

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992 S6

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1979 S6

HOUSING (DISABLED PERSONS & ESSENTIAL REPAIRS GRANTS) REGS 2001 SI 607/2001

EQUAL STATUS ACT 2000

EEC DIR 2000/43

CONSTITUTION ART 40.3

CONSTITUTION ART 41

CONSTITUTION ART 42

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

CONSTITUTION ART 41.1

HOUSING ACT 1988 S9

UNIVERSITY OF LIMERICK v RYAN & ORS UNREP BARRON 21.2.1991 1991/6/1486

O'BRIEN v WICKLOW UDC & WICKLOW CO COUNCIL UNREP COSTELLO 10.6.1994 2000/13/4988

MEATH VEC v JOYCE 1994 2 ILRM 210 1994/5/1414

MONGAN v SOUTH DUBLIN CO COUNCIL UNREP BARRON 31.7.1995 1995/20/5152

WARD & ORS v SOUTH DUBLIN CO COUNCIL 1996 3 IR 195 1996/15/4842

O'REILLY & ORS v LIMERICK CO COUNCIL 2007 1 IR 593 2006 IEHC 174

O'DONNELL v SOUTH DUBLIN CO COUNCIL UNREP LAFFOY 22.5.2007 2007 IEHC 204

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CODONA v UNITED KINGDOM UNREP ECHR 7.2.2006 (APPLICATION NO 485/05)

Mr. Justice John Edwards

1 The applicants are travellers. The first and second named applicants are wife and husband respectively and they have seven children, namely the third to ninth named applicants respectively. In an affidavit sworn by her on 6^th November, 2006, Mrs. Mary O'Donnell states that her seven children range in age from sixteen down to two. At that time, the third named applicant was sixteen years of age, the fourth named applicant fifteen years of age, the fifth named applicant twelve years of age, the sixth named applicant eight years of age, the seventh named applicant nine years of age, the eighth named applicant two years of age and the ninth named applicant thirteen years of age. The fourth named applicant, Ellen O'Donnell, has cerebral palsy and is confined to a wheelchair. Mrs. O'Donnell looks after the seven children full time and is not employed outside of the home. Her husband is unemployed and is in receipt of disability allowance. At present the family resides in a mobile home located at a temporary halting site operated by the first named respondent at Whitestown Way, Tallaght, Dublin 24. Their present accommodation is overcrowded and cramped. It is particularly unsuitable for the fourth named applicant, having regard to her disability. The particular needs of the fourth named applicant have been assessed by an occupational therapist and the relevant reports have been submitted to the first named respondent. In addition, the first named respondent has had its environmental health officer assess and report on the family's accommodation and a report has also been obtained from P.J. Rochford Mobile Home Repairs and Services. In general terms, the applicants claim in these proceedings that they are entitled by law to be provided with suitable, adequate and accessible caravan accommodation by the first named respondent and that, by failing to provide such accommodation, the Council has acted in breach of their statutory duty under the Housing Acts, 1966 to 2004 interpreted in accordance with s. 2 of the European Convention on Human Rights Act, 2003, contrary to s. 3 of the European Convention on Human Rights Act, 2003 and contrary to the applicants' rights under the Constitution of Ireland.

2 Before proceeding to rehearse in any detail the parties' respective pleadings and the evidence before me I must allude to the relevant legislative scheme and refer with particularity to certain provisions of it. The relevant scheme has already been reviewed and summarised succinctly by Charleton J in a case ofDoherty & Doherty - v- South Dublin County Council, The Minister for the Environment, Heritage and Local Government, Ireland and the Attorney General; the Equality Authority, Notice Party, delivered on the 22^nd of January 2007, to which I was referred by both sides in the present case. In Doherty, Charleton J considered the case of two elderly travellers suffering from ill health who were residing in a damp and draughty caravan and who claimed, inter alia, a right under the Housing Acts 1966-2004 when interpreted in accordance with the principles laid down in the European Convention on Human Rights Act 2003 to be provided with a centrally heated, insulated and internally plumbed caravan. In the circumstances I propose to adopt his excellent summary for the purposes of this judgment. Commencing at paragraph 19, he states:

3 2 "19. The Housing Act, 1966 consolidated existing legislation as to the provision of housing. It also cast a duty on local authorities to survey the need for housing within their functional area and to make provision, based on the scheme of priorities, whereby people who are otherwise unable to afford housing might be offered accommodation at reasonable rent. Section 60 provided that it is the duty of a housing authority to make a scheme determining the priorities to be accorded to categories of persons who are in need of housing. This scheme was a public document which could be inspected; s. 60(9). The primary objectives of this section were replaced by s. 9 of the Housing Act1988, which recasts s. 60, which it repealed. Section 9 makes it the duty of a housing authority to assess the needs of the homeless, of Travellers, of those in unsuitable accommodation, of young people without family support, of the sick and the elderly, and those without adequate means. This includes those who may later enter the functional area of the authority."

4 It is perhaps appropriate to interrupt the quotation here to add that section 2 of the 1988 Act defines "homeless" in terms that a person shall be regarded by a housing authority as being homeless if

5 a "(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of …"

6 Resuming then the quotation from Charlton J, he continues:

"Under s. 10 further powers to offer accommodation, such as Bed & Breakfast accommodation, are conferred on the housing authority. Part IV of the Act of 1966 is concerned with the elimination of slum and tenement dwellings and, in that regard, empowers local authorities to serve orders for repair or demolition and to bring prosecutions in respect of related offences. Section 56 of the Act of 1966 provides:-"

2 "56- (1) A housing authority may erect, acquire, purchase, convert or reconstruct, lease or otherwise provide dwellings (including houses, flats, maisonettes and hostels) and such dwellings may be temporary or permanent.

(2) A housing authority may, in connection with dwellings provided, to be provided or which in the opinion of the authority will in the future require to be provided under this Act, provide and, if they think fit, maintain in good order and repair roads, shops, playgrounds, places of recreation, parks, allotments, open spaces, sites for places of worship, factories, schools, offices and other buildings or land and such other works or services, as will, in the opinion of the authority, serve a beneficial purpose either in connection with the requirements of the persons for whom the dwellings are provided or in connection with the requirements of those persons and of other persons."

7 20. The following section of the Act of 1966 allows for the provision of sites for housing in a similar way. There is no specific mention in the Act of 1966 of the Irish Traveller Community. One notes however, the reference in s. 56 to temporary accommodation which could, although it is not specified, include a mobile home or caravan. Section 13 of the Housing Act, 1988 applies only to those who belong "to the class of persons who traditionally pursue or have pursued a nomadic way of life." The section was replaced by s. 29 of the Housing (Traveller Accommodation) Act, 1998. It is to be noted that the definition does not confine the rights enabled by the section to those who have pursued this lifestyle on this island, as does the Equal Status Acts, 200-2004. It applies, on the face of it, to all traditional nomads. As substituted by s. 29 of the 1998 Act, s. 13 of the 1988 Act reads, as to its material part:-

8 2 "13-(1) This section applies to persons belonging to the class of...