O'Driscoll and Another v Limerick City Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 09 November 2012
• Neutral Citation: [2012] IEHC 594
• Court: High Court
• Date: 09 November 2012

[2012] IEHC 594

THE HIGH COURT

[No. 1328 J.R./2010]

O'Driscoll & McCarthy v Limerick City Council & Ors

BETWEEN

JULIE O'DRISCOLL AND MARY MCCARTHY

APPLICANTS

AND

LIMERICK CITY COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 1902001 2 ILRM 241 2001 ELR 33 2001/6/1371

CAHILL v SUTTON 1980 IR 269

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992 S10

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 34

KLASS & ORS v GERMANY 1979-80 2 EHRR 214 1978 ECHR 4

LEONARD v DUBLIN CITY COUNCIL & ORS UNREP DUNNE 31.3.2008 2008/35/7594 2008 IEHC 79

HOUSING ACT 1966 S62

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

B (J) (A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010/3/736 2010 IEHC 296

EFE & OLUKAYODE v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 7982011 2 ILRM 411 2011/20/4992 2011 IEHC 214

DONEGAN v DUBLIN CITY COUNCIL & ORS 2012 2 ILRM 2332012 IESC 18

DUBLIN CITY COUNCIL v GALLAGHER UNREP O'NEILL 11.11.2008 2008/15/3150 2008 IEHC 354

PULLEN & DOUGLAS v DUBLIN CITY COUNCIL & HUMAN RIGHTS CMSN 2010 2 ILRM 61 2009/47/11709 2009 IEHC 452

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S32

INTERNATIONAL FISHING VESSELS LTD v MIN FOR THE MARINE (NO 2) 1991 2 IR 93

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & ANOR 1997 2 IR 4891997 2 ILRM 321 1997/4/1431

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 391992 ILRM 237

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENCES APPEALS BOARD & MIN FOR COMMUNCIATIONS 2009 1 IR 673 2008/11/2331 2008 IEHC 289

HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010 PARA 14.155

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

HOUSING ACT 1966 S62(1)

HOUSING ACT 1966 S62(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

MCDONAGH v KILKENNY CO COUNCIL & ORS 2011 3 IR 455 2007/36/7371 2007 IEHC 350

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S19

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CONNORS v UNITED KINGDOM 2005 40 EHRR 9 16 BHRC 639 2004 HLR 52

CONSTITUTION ART 40.5

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992 S10(4)

HOUSING LAW

Traveller accommodation

Judicial review - Applicants illegally occupying land owned by first respondent - Applicants refusing offers of alternative accommodation - First respondent issuing notice requiring applicants to remove dwellings - Whether judicial review providing effective remedy - Whether breach of fair procedures - Whether failure to give reasons for issuance of notice - Whether failure to vindicate applicants' rights - Whether lack of independent tribunal constituting breach of applicants' rights - Whether locus standi - McDonagh v Kilkenny County Council [2007] IEHC 350, [2011] 3 IR 455; Leonard v Dublin City Council [2008] IEHC 79 (Unrep, Dunne J, 31/3/2008); Deerland Construction Ltd v Aquaculture Licences Appeal Board [2008] IEHC 289, [2009] 1 IR 673; Efe v Minister for Justice, Equality and Law Reform [2011] IEHC 214, [2011] 2 IR 798 followed - Cahill v Sutton [1980] IR 269; B(J)(A minor) v Minster for Justice, Equality and Law Reform [2010] IEHC 296, (Unrep, Cooke J, 14/7/2010) and Donegan v Dublin City Council [2012] IESC 18 (Unrep, SC, 27/2/2012) considered - Housing (Miscellaneous Provisions) Act 1992 (No 18), s 10 - Housing (Traveller Accommodation) Act 1998 (No 33), s 32 - European Convention on Human Rights and Fundamental Freedoms 1950, arts 6 & 8 - Relief refused (2010/1328JR - Feeney J - 9/11/2012) [2012] IEHC 594

O'Driscoll v Limerick City Council

Facts: The applicants were both members of the Travelling Community who lived off a laneway leading to Bawney”s Bridge halting site which provided accommodation for eight traveller families and where a number of relatives of both lived. The first named respondent began making preparations to refurbish the halting site due to it being overcrowded but was unable to commence works due to the presence of the applicants” caravans. The first named respondent then wrote to the applicants requesting that they move to their caravans which were positioned on Council land without permission. This was despite the fact the Council had provided some basic amenities to them in the past.

A social worker for the first named respondent contacted the applicant”s and made it clear that the refurbishment of the halting site would not lead to them being able to reside there when completed. However, an offer was made to provide traveller specific accommodation elsewhere. This was refused. In response, the first named respondent served both applicants with a notice under s. 10 of the Housing (Miscellaneous Provisions) Act 1992 indicating that it was the Council”s opinion that the applicant”s had unlawfully erected temporary dwellings in a public place causing nuisance and obstruction and requesting that they be removed from the area or criminal proceedings would be sought against them. As a consequence, various reliefs were sought by the applicants including an order of certiorari and a declaration of incompatibility with Article 5 of the European Convention on Human Rights. Leave to apply for judicial review was granted.

The applicants claimed that their Constitutional and European rights were breached as sufficient reasoning was not provided by the first named respondent in issuing a s. 10 notice. The respondents averred that there was no obligation to do so. The applicants also claimed that there was no adequate safeguard that allowed the decision of the first named respondent in issuing a s. 10 notice to be challenged. The respondents claimed that there was no ‘fact’ to be challenged as the issue of the notice was based on the opinion of the first named respondent and that judicial review proceedings were adequate.

Held by Feeney J that s. 10 of the Housing (Miscellaneous Provisions) Act 1992 only allowed a Council to issue a notice when they believed that a nuisance had arisen. In relation to the first complaint of the applicants, it was unnecessary to decide whether the first named respondent was obliged to give sufficient reasoning as it was apparent that they had done so. The applicants had received various correspondence and meetings with a social worker before the notice was issued which outlined the Council”s position. Fair procedures did not require the first named respondent to outline the reasons in one document if it was easily discernible. The court was therefore satisfied that when the notice was issued, the applicants already knew the basis for them. The reasons were also held to be logical.

In relation to the second ground, the court accepted the respondent”s submission that there was no factual dispute as the notice was based on the opinion of the Council as to whether a nuisance had arisen. Judicial review proceedings were determined to be an adequate remedy to satisfy Article 8 of the European Convention on Human Rights to deal with this case as to the proportionality of the Council”s opinion. As it had already been held that the reasons given were logical, the court was entitled to reject the application.

Application refused.

1 Judgment of Mr. Justice Feeney delivered on 9th day of November, 2012.

2 2 1.1 This is an application by the two applicants for judicial review. Leave to apply by way of an application for judicial review was granted by this Court on the 18 ^th October, 2010 wherein a number of reliefs, including an order of certiorari, a declaration of incompatibility pursuant to s. 5 of the European Convention on Human Rights Act 2003, a declaration that a section of a statute was unconstitutional and injunctive relief was sought. Subsequent to that order an amended statement required to ground the applicants' application for judicial review was filed on the 27 ^th October, 2010. In paragraph 5, the applicants identified the grounds upon which relief was sought.

3 3 1.2 Judicial review is considered by the courts not by reference to a placeless vacuum. Except in the rarest of cases, the Court will only grant relief by way of judicial review to a person aggrieved in respect of an ultra vires administrative action. Whilst the Court retains discretion to quash an order at the behest of a person who is "not directly affected by the illegal acts which he attacks", it is recognised that such jurisdiction arises in only rare cases (see judgment of Finlay J. in de Roiste v. Minister for Defence[2001] 1 I.R. 190 at p. 200 where he identified that the discretion to quash an order at the behest of an applicant who is not directly affected "are rare").

4 4 1.3 The general approach of the Court to the grant of judicial review is that it will grant relief only to a person aggrieved. In the Supreme Court case of Cahill v. Sutton[1980] I.R. 269, Henchy J. observed that an applicant must show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering. He dealt with the requirement for concrete personal circumstances (at p. 283) in the following terms:

"While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury, to bring proceedings to have a particular statutory provision declared unconstitutional, there are countervailing considerations which make such an approach generally undesirable and not in the public interest. To allow one litigant to present and argue what is essentially another person's case would not be conducive to the administration of justice as a general rule. Without concrete personal circumstances pointing to a wrong suffered or threatened, a case...