O'Donnell & Ors -v- South Dublin County Council & Ors, [208] IEHC 454 (2008)

Docket Number:2006 1339 JR
Party Name:O'Donnell & Ors, South Dublin County Council & Ors
Judge:Edwards J.
 
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THE HIGH COURT JUDICIAL REVIEW2006 1339 JRBETWEENMARY O'DONNELL, PATRICK O'DONNELL, MICHAEL O'DONNELL (A MINOR SUING BY HIS MOTHERAND NEXT FRIEND MARY O'DONNELL), ELLEN O'DONNELL (A MINOR SUING BY HER MOTHERAND NEXT FRIEND MARY O'DONNELL),MARY O'DONNELL (A MINOR SUING BY HER MOTHERAND NEXT FRIEND MARY O'DONNELL),PATRICK O'DONNELL (A MINOR SUING BY HIS MOTHERAND NEXT FRIEND MARY O'DONNELL), MARGARET O'DONNELL, (A MINOR SUING BY HER MOTHERAND NEXT FRIEND MARY O'DONNELL),TERESA O'DONNELL, (A MINOR SUING BY HER MOTHERAND NEXT FRIEND MARY O'DONNELL),AND GERRY O'DONNELL (A MINOR SUING BY HIS MOTHERAND NEXT FRIEND MARY O'DONNELL)APPLICANTSANDSOUTH DUBLIN COUNTY COUNCIL, THE MINISTER FOR THE ENVIRONMENT, HERITAGEAND LOCAL GOVERNMENT,IRELAND AND THE ATTORNEY GENERALRESPONDENTSJudgment of Mr. Justice John Edwards delivered on the 11th day of January, 2008IntroductionThe 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 6th 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.The Relevant LegislationBefore 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 of Doherty & 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 22nd 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:"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 Act, 1988, 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." It is perhaps appropriate to interrupt the quotation here to add that section 2 of the 1988 Act defines "homeless" in terms 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 or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of …" 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:-"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."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, 2000 - 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:-"13 - (1) This section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life.A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of s. 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.(3) Section 56(2) of the Principal Act shall apply in connection with the provision of sites under this section as it applies in connection with the provision of dwellings under that section."21. Section 56(2) of the Housing Act, 1966, enables the authority to maintain buildings and services ancillary to housing. Section 13(7) of the Act of 1988, as substituted by s. 29 of the Act of 1998, defines a caravan as:-"Any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent." A site with limited facilities is defined by reference to the temporary nature of the stay but which, in that regard, must have sufficient water, a hard parking surface and facilities for waste disposal. Just as under the Housing Act, 1966, there was a duty to make an assessment of housing needs, so under the Housing (Traveller Accommodation) Act, 1998, Part II provides a duty on a housing authority to assess the need for sites and to adopt an accommodation programme for Travellers. Under s. 25, the authority may make a loan for the...

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