Dooley and Others v Killarney Town Council and Kerry County Council
| Jurisdiction | Ireland |
| Judge | Justice Michael Peart,Mr Justice Michael Peart |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2008] IEHC 242 |
| Court | High Court |
| Date | 18 December 2008 |
[2008] IEHC 242
THE HIGH COURT
Between:
And
FREEDOM OF INFORMATION ACT 1997
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3
CONSTITUTION ART 3
CONSTITUTION ART 8
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14
O'REILLY v LIMERICK CO COUNCIL UNREP MAC,ENAMIN 29.3.2006 2006/47/9990 2006 IEHC 174
HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S7(1)
HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S10
HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S10(2)(e)
HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S16
HOUSING ACT 1988 S2
HOUSING ACT 1988 S9
HOUSING ACT 1988 S13
O'REILLY & ORS v O'SULLIVAN & DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP SUPREME 26.7.1997 1997/11/3523
HOUSING ACT 1988 S9(12)
DOHERTY v SOUTH DUBLIN CO COUNCIL & ORS 2007 2 IR 696
MCDONAGH & ORS v CLARE CO COUNCIL & ENNIS TOWN COUNCIL UNREP SMYTH 20.5.2004 2004/34/7794 2004 IEHC 184
DOHERTY v SOUTH DUBLIN CO COUNCIL & ORS 2007 1 IR 246
HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S16(1)
HOUSING ACT 1966 S66(2)
HOUSING ACT 1966 S63
A declaration that the respondents have a statutory obligation under the Housing Act 1966 - 2002 to provide suitable accommodation to the applicants, and that by decision dated 19 th October 2004 the first named respondent assessed the applicants as requiring local authority housing, which said assessment the respondents are under a statutory duty to perform.
A declaration that the temporary housing provided by the respondents to the applicants in October 2004 at Deerpark Halting Site in Killarney, in which the applicants have since had to reside, is not sufficient performance of the respondents' statutory duty to provide the applicants with permanent housing.
Further to 2, a declaration that the applicants cannot reasonably continue to occupy the chalet at Deerpark Halting Site in Killarney which the first named respondent provided for them as a temporary measure in October 2004, and which is under the management and control of the second-named respondent.
An order of Mandamus requiring the respondent to perform their statutory duty to provide the applicants with a permanent house and to comply with the first named respondent's assessment dated 20 th March 2006 that the applicants qualified for a three bedroomed house, and the second-named respondent's Traveller Accommodation Programme 2005 - 2008.
A declaration that the respondents have acted in breach of the applicants' right to constitutional justice and fair procedures in failing to provide the applicants with information as to when they can expect to be allocated permanent housing and in failing to provide the applicants with information as to the respondents' compliance with their own internal programmes and guidelines in respect of the provision and allocation of housing.
An order of Mandamus requiring the first named respondent to provide the applicants with an updated copy of all documents and correspondence that it has on file in respect of the applicants, as requested by the applicants under the Freedom of Information Act.
A Declaration that the respondents are under a duty to provide equality of treatment between members of the Traveller Community and the settled community in the provision of housing in "bricks and mortar" where that is their preferred choice.
A Declaration that the respondents have failed to comply with a duty to provide equality of treatment in the provision of housing in "bricks and mortar" because the respondents have treated the applicants differently to members of the settled community by placing the applicants in temporary halting site accommodation.
An order of Mandamus requiring the respondents to process the applicants' application for housing in a manner that complies with their duty to provide equality of treatment between members of the Travelling Community and the settled community.
A declaration that the failure of the respondents to provide the applicants with adequate housing is in breach of the applicants' rights under Articles 3 and 8 of the European Convention on Human Rights, and in breach of the respondents' duties under section 3 of the European Convention on Human Rights Act, 2003.
A Declaration that the respondents have unlawfully discriminated against the applicants in breach of the Constitution (Articles 3 and 8) when read in conjunction with Article 14 of the European Convention on Human Rights, and section 3 of the European Convention on Human Rights Act, 2003.
Such further or other relief as to this Honourable Court shall seem meet.
An order providing for costs.
The first and second named applicants ("the applicants") who are members of the Traveller Community were married on 20 th December 2002, and resided first of all with the parents of the first named applicant in Killarney. However at that time six of the first named applicant's siblings also resided there and it was therefore deemed to be overcrowded. The previous August they had commenced living there together, and say that they applied to the first named respondent ("the Town Council") for accommodation, although it appears from the affidavit of John Breen sworn on the 8 thNovember 2007 that the Town Council file does not record this application.
While they resided with her parents, she gave birth to their first child in November 2003 and a second child in October 2004. The first named applicant states however that while she was pregnant with her second child she and her husband went to the Town Council and explained their need for housing. They were asked to complete a form declaring themselves as homeless. That form was completed on 13 th July 2004 and returned to the Town Council, explaining therein that as members of the Traveller Community they were unable to obtain private rented accommodation. On that date they also completed a Housing Service Application Form. This application was acknowledged by the Town Council by letter dated 14 th July 2004. She has exhibited a memo from the Town Council file in which Dan O'Leary of that body comments that they are living in conditions that were very overcrowded, and recommends to the Housing Administration section that " this couple would accept a house anywhere in Killarney or a hay in the halting site would be an option also". The first named applicant states that they never indicated that a bay in a halting state was acceptable on any permanent basis, but only as a way of relieving their situation on a temporary basis, and that what they wanted was a house.
In any event it appears that by letter dated 19 th October 2004 the Town Council informed the applicants that they had been approved for local authority housing on account of their circumstances and that their application would be " progressed in due course subject to the Local Authorities Scheme for Letting Priorities for Housing and the availability of houses for allocation in the area of [their] choice". However, Mr Breen in his affidavit states that the accommodation specified in the recommendation of Dan O'Leary dated 19 th October 2004 " is not short term, emergency accommodation".
After that date they received an offer of halting bay accommodation at the Deerpark halting site in Killarney ("Deerpark") sometime towards the end of October 2004. In support of the relief claimed in relation to discrimination as members of the Traveller Community, the first named applicant states that the Town Council made this offer solely on the basis that they are members of that community and would never make such an offer to a member of the settled community. She goes on to state that they accepted this offer of halting bay accommodation only as a temporary measure, since it was a chalet consisting only of a kitchen, sitting-room, bathroom and one bedroom, all of which was too small for her, her husband and their two children. She states also that even though she is proud of her traveller roots she wishes to live in a house. Her evidence has been that her own family (as opposed to her husband's family) are settled travellers and that she, unlike her husband, had never lived in a halting site. However, Mr Breen avers that this offer was not on the basis that it was a temporary solution to the applicants' situation, and arose from Mr O'Leary's recommendation.
There is clearly an issue arising as to whether the applicants accepted the offer of halting site accommodation as a permanent solution to their situation, or whether they accepted this offer of accommodation only as a temporary measure until such time as a house was available for allocation to them.
Mr Breen denies that there is any discrimination in the manner in which this accommodation was offered to the applicants, and that it was the only long-term solution available at that time. He also states that if the applicants had turned down that accommodation, there were other families looking to be accommodated at that Deerpark site, and that the applicants would have had to await an allocation of housing, and, in the interim, have had in common with other housing applicants, to have sourced private rented accommodation.
On 21 st February 2005 the applicants completed a housing application form, and in this form they specifically stated that they were not applying for "Traveller accommodation". This is confirmed in a copy of that form which...
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