Fitzgerald and Others v Tipperary North Riding County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 05 May 2009
• Neutral Citation: [2009] IEHC 211
• Court: High Court
• Docket Number: [No. 1068 J.R./2008]
• Date: 05 May 2009

[2009] IEHC 211

THE HIGH COURT

[No. 1068 J.R./2008]

Fitzgerald & Ors v Tipperary North Riding Co Council

BETWEEN

DAVID FITZGERALD, PAT ROHAN, DEBBIE ROHAN, EVELYN ROHAN AND BRENDA MAGUIRE

APPLICANTS

AND

THE COUNTY COUNCIL OF THE COUNTY OF TIPPERARY NORTH RIDING

RESPONDENT

AND

CHARLIE O'REILLY AND NOREEN O'REILLY

NOTICE PARTIES

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S7

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S16

LOCAL GOVT ACT 2001 S149

LOCAL GOVT ACT 2001 PART XIV CHAP 1

LOCAL GOVT ACT 2001 S130

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S7(3)

LOCAL GOVT ACT 2001 S132

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S1(2)

HOUSING ACT 1966 S56

MCDONALD v FEELY UNREP O'HIGGINS 23.7.1980 1980/15/2682

HOUSING ACT 1988 S13

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S29

EAST WICKLOW CONSERVATION COMMUNITY LTD v WICKLOW CO COUNCIL 1996 3 IR 175 1995 2 ILRM 16 1995/2/633

HOUSING ACT 1988 S8

HOUSING ACT 1988 S9

HOUSING ACT 1988 S9(2)

CONSTITUTION ART 40.1

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

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

LOCAL GOVT ACT 2001 S151(2)

LOCAL GOVT ACT 2001 SCHED 15

LOCAL GOVT ACT 2001 SCHED 15 ART 4

LOCAL GOVT ACT 2001 SCHED 15 ART 5

HOUSING

Traveller accommodation

Accommodation programme - Executive functions of local authority - Power to bypass accommodation programme - Tenancy agreement - Needs of family living in unsuitable conditions - Prohibition from concluding tenancy agreement - Whether arrangement ultra vires power of respondent - Whether conclusion of agreement by county manager ultra vires - Whether house not included in strategies identified in accommodation programme - Whether executive power under housing legislation being exercised -Constitutional rights - European convention rights - McDonald v Feely (Unrep, SC, 23/7/1980); Doherty v South Dublin County Council [2007] IR 696 and Ward v South Dublin County Council [1996] 3 IR 195 considered; East Wicklow Conservation Community Limited v Wicklow County Council [1996] 3 IR 175 distinguished - Constitution of Ireland 1937, Article 40.1 -Housing Act 1988 (No 28), ss 8, 9 and 13 - Housing (Traveller Accommodation) Act 1998 (No 33), ss 1, 7 and 16 - Local Government Act 2001 (No 37), ss 130, 132, 151 and 159 - Application dismissed (2008/1068JR - Hanna J - 5/5/2009) [2009] IEHC 211

Fitzgerald v Tipperary County Council

Facts: The applicant residents sought reliefs by way of judicial review to prevent the respondent from proceeding with the conclusion of a tenancy agreement between the respondent housing authority and the notice parties, who were members of the travelling community. The applicants sought inter alia an order of prohibition and an interim injunction restraining the respondents from concluding the agreement. Pursuant to s. 7 Housing (Traveller Accommodation) Act 1998, the respondent was obliged to draw up an accommodation programme and the respondent had adopted a Traveller Accommodation Programme 2005-2008, which the respondent was obliged to adopt pursuant to the Local Government Act 2001.

Held by Hanna J. that the Council was acting in an executive capacity in letting the house in question. The application would be dismissed.

Reporter: E.F.

JUDGMENT of

Mr. Justice Hanna

delivered on the 5th day of May, 2009

1 The applicants are residents of Cullenagh, Ballina, Co. Tipperary. As well as representing their own interests, they also say that they represent the interests of some 62 other persons being with Cullenagh Residents Association.

2 The respondent is Tipperary North Riding County Council. It is,inter alia, the housing authority for the area within which the applicants reside.

3 The notice parties are members of the travelling community who have eight children. They currently reside in roadside caravan accommodation near Ballina. The respondent has purchased a dwelling house in Cullenagh which is adjacent to where the applicants reside. The respondent intends to let this house to the notice parties, it being suitable for the needs of that family.

4 There is no dispute as to the unfortunate plight of the notice parties. They are currently living in cramped and unfit conditions. Mrs. O'Reilly suffers from a physical disability and is cared for by Mr. O'Reilly. Of their eight children, one suffers from scoliosis of the spine and requires special attention. Two children have special needs and another child suffers from attention-deficit hyperactivity disorder. They have been residing in the area for a number of years and the children are being educated both in Ballina and in Killaloe.

5 According to the affidavit filed on behalf of the respondent, Ms. Sharon Kennedy, Senior Executive Officer of the Housing Capital Schemes Section of the respondent, the family has been on the housing list since the year 2000 along with some 370 others approximately. She confirms that the family live in unfit and overcrowded conditions, which are materially unsuitable for human habitation. The family desire to be accommodated in a halting site. This is not, however, a feasible option in the short to medium term. Previous efforts to accommodate the family did not come to fruition.

6 7. The dwelling house at the centre of the dispute between the parties herein was purchased pursuant to an order signed by the Deputy County Manager on the 3^rd July, 2008, and was transferred to the ownership of the respondent by deed of transfer dated the 8^th September, 2008. It is important to note that the suitability of the house for the needs of the notice parties have been noted by the local authority before it proceeded to acquire same. It seems that the Council's intention was not made known either to elected representatives or to the public in general and the applicants and their co-residents in particular until some time prior to the execution of the deed of transfer. The intentions of the Council were then made known to councillors and to the applicants.

7 8. Reference is made in the proceedings to certain incidents which allegedly occurred following on from news of the proposed actions by the Council. These resulted in the bringing, by the respondent, of injunction proceedings in the High Court. This Court is not concerned with those proceedings or with any alleged wrongful acts by any party. I will concern myself only with the issues raised in these proceedings and will not dwell further upon matters raised in parallel proceedings.

8 9. On the 24^th September, 2008, the applicants applied for leave to bring judicial review proceedings. That application was refused by Charleton J. This refusal was then appealed to the Supreme Court. The appeal was successful. The applicants were given leave to apply for a number of reliefs. They were as follows:-

9 (i) An order of prohibition preventing the respondent from proceeding with the conclusion of a tenancy agreement between the respondent and members of the O'Reilly family of Cullenagh, Ballina, Killaloe, Co. Tipperary for the lease of the house at Cullenagh, Ballina, Co. Tipperary, recently purchased by the respondent from Peter Lyons and Louise Barry, or any agreement in respect of the occupation of the said house pursuant to the respondents Traveller Accommodation Programme;

10 (ii) In the alternative, in the event that such an agreement has been executed, an order ofcertiorari setting the said agreement aside;

11 (iii) An interim injunction restraining the respondent from concluding any such tenancy agreement and from causing the said house to be occupied by the said O'Reilly family pursuant to any such lease or by the said family or any persons pursuant to the said Traveller Accommodation Programme of the respondent pending further order of the court;

12 (iv) An interlocutory injunction restraining the respondent from concluding any such tenancy agreement and from causing the said house to be occupied by the said O'Reilly family pursuant to any such lease or by the said family or any persons pursuant to the said Traveller Accommodation Programme of the Respondent pending the determination of these proceedings or further order of the court;

13 (v) Such further or other order as this Honourable Court shall seem meet;

14 (vi) Costs.

15 10. The applicants were granted leave to rely upon two grounds. First, that the respondent had purchased the house the subject matter of the application and has stated through its County Manager that it proposes to house a traveller family therein and to execute a tenancy agreement with the said family to that end. The applicants contend that such an agreement and such an arrangement would be ultra vires the power of the respondent. Secondly, that the housing of the said family, as aforesaid, is proposed to be organised by the respondent's County Manager and in concluding such an agreement and/or arrangement, the said County Manager would be acting ultra vires.

16 11. The property has been transferred to the local authority as noted above. No letting agreement has yet been signed.

17 12. On behalf of the applicants, Mr. Rodgers S.C. pointed to the fact that pursuant to s. 7 of the Housing (Traveller Accommodation) Act 1998, the respondent was obliged to draw up an accommodation programme specifying the accommodation needs of travellers in its functional area and the provision of accommodation required to address those needs. Pursuant to the said legislation, the respondent adopted its Traveller Accommodation Programme 2005-2008. Under s. 16 of the said Act of 1998, Mr. Rodgers contended, the respondent was required to implement the programme and take such steps as were necessary...