McDonagh v Clare County Council

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 19 July 2002
• Neutral Citation: [2002] IEHC 78
• Court: High Court
• Docket Number: [2002 No. 86 J.R.]
• Date: 19 July 2002

McDONAGH v. CLARE CO COUNCIL

JUDICIAL REVIEW

BETWEEN

OWEN McDONAGH AND THOMAS McDONAGH

APPLICANTS

AND

COUNTY COUNCIL OF THE COUNTY OF CLARE

RESPONDENT

[2002] IEHC 78

No. 86 JR/2002

THE HIGH COURT

Synopsis:

JUDICIAL REVIEW

Local authority

Traveller accommodation - Housing issues - Whether respondent's indigenous policy in respect of traveller accommodation ultra vires - Whether respondent required to provide accommodation for applicants - Whether respondent had fettered its discretion in considering the applicants" application for accommodation (2002/86JR - O'Sullivan J - 19/07/2002)

McDonagh v Clare County Council - [2002] 2 IR 634 - [2003] 1 ILRM 36

Facts: the respondent, in 2000, adopted a traveller accommodation programme which contained a policy of giving priority to indigenous travellers as part of its duties as the housing authority for Co. Clare. The applicants were travellers who had previously applied to the respondent for permanent accommodation and who received a letter on the 2nd January, 2002, rejecting their claim to be indigenous and therefore qualified to apply for permanent halting site accommodation. The applicants sought, inter alia, an order directing the respondent to provide suitable accommodation and a declaration that the policy of providing for the county's indigenous travelling community was ultra vires.

Held by O'Sullivan J in granting an order directing the respondents to consider the application of the applicants for accommodation generally and directing that in so considering the applications they must not exclude the applicants in limine by reference to the indigenous policy, but refusing to make an order directing that the respondents provide accommodation for the applicants, that the matter was one of statutory interpretation and application rather than discretion and that it would be inappropriate to take into account, on a discretionary basis, as a point against the applicants receiving relief either the fact that they had resided outside the respondent's functional area during the previous three years or the fact that the respondents had not applied for a particular kind of housing accommodation. Given that the duty to assess accommodation needs was owed to travellers in the functional areas of housing authorities, the plans and schemes of a housing authority must not only be rational and coherent but also flexible. The inclusion of an indigenous requirement in a traveller accommodation programme was something to be left to the informed judgement of the housing authority and was within its statutory powers and accordingly lawful. However, it should not be applied so rigidly that it becomes an effective bar to any consideration by the housing authority of an application for housing by a member of the traveller community. The letter of the 2nd January, 2002, constituted a refusal to even consider the applicants for permanent traveller accommodation by reference to the indigenous policy.

Citations:

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

MCNAMEE V BUNCRANA UDC 1983 IR 213

MCDONALD V FEELY UNREP SUPREME 23.7.1980 1980/15/2682

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN FOR TRANSPORT 1997 1 ILRM 241

R V PORT OF LONDON AUTHORITY EX PARTE KYNOCH 1919 1 KB 176

BRITISH OXYGEN LTD V MIN FOR TECHNOLOGY 1971 AC 610

MCGEOUGH, STATE V LOUTH CO COUNCIL 107 ILTR 13

MCNAMEE V BUNCRANA UDC 1983 IR 213

O'NEILL V MIN FOR AGRICULTURE 1997 2 ILRM 435

HOUSING ACT 1988 S9(2)

HOUSING ACT 1988 S13

O'BRIEN V WICKLOW CO COUNCIL UNREP COSTELLO EX-TEMP 10.6.1994

N, RE A SOLICITOR UNREP DAVITT 30.6.80 1980/8/1514

D, RE A SOLICITOR 1958 95 ILTR 60

1 O'Sullivan J. delivered the 19th of July, 2002.

INTRODUCTION

2 The applicants are brothers and members of the travelling community. They seek various orders by way of judicial review against the respondent who is the housing authority for County Clare.

THE FACTS

3 Owen McDonagh says that he lived most of his life in County Clare but with interruptions. After he married in June, 1988 he moved around Ireland but returned to County Clare. From 1991 to the present he has spent extended periods of time in County Clare mainly in the Shannon area. He accepts he would have left for short periods during that period. Following litigation in 1991 a temporary halting site with temporary facilities was provided by the respondent for the McDonagh clan including himself and his brother. Some members (not the applicants) of the clan were provided with a permanent halting site in September, 2000. In 1992 he placed his name in the County Clare housing list and has never removed it. He says he was never offered a permanent halting bay and so far as he is aware there are no transient halting sites available in County Clare. Having pleaded guilty in 1999 to committing criminal damage he was precluded by court order from residing within a 10 mile radius of Shannon for two years. He complied with that order and returned in August, 2001 and has since then resided on a disused roadway at Carygoran, Newmarket-on-Fergus, County Clare. The respondents brought proceedings to remove him and an order was made in December, 2001 to that effect. There were subsequent proceedings for attachment and committal and an appeal from the order: eventually the matter was adjourned on the 6th February, 2002 when he moved to his present location which I am informed is also on the side of the road in County Clare where he now resides with his wife and children.

4 Thomas McDonagh agrees with the foregoing affidavit of his brother. His family moved to County Clare around 1977; he travelled around the county for the next 14 years apart from times when he was evicted from the county. Since 1991 he says he spent extended periods of time in County Clare, mainly in the Shannon area. During most of these periods his children have attended St. Senan's National School in Shannon, County Clare: at present they go to Newmarket-on-Fergus National School. He is unemployed and is now living in a caravan with his wife and five youngest children. He says that he too placed his name on the County Clare housing list in 1992 and never removed it from the list. He has never been provided with permanent accommodation. He says that since 1991 he did spend periods of time in England and other places but spent more time in Shannon and/or County Clare than elsewhere.

5 The details particularly in relation to residence in the foregoing affidavits were vague.

6 An affidavit was sworn on behalf of the respondent by Madeleine McCarthy who was an Administrative Officer of the Traveller Accommodation Unit of the respondent and contains a little more precision.

7 There is no reference to Owen McDonagh in a census of May, 1991, the first record of his household being November 1993, repeated in 1994, 1995, 1997 and 1998 but not in 1996, 1999 or 2000. The first record of Tom McDonagh's family is in November, 1993, repeated in 1994, 1996, 1997 but not in 1995, 1999 or 2000. She says that Owen McDonagh was resident in County Clare for cumulative periods of around seven months in all in the three years immediately preceding the date of adoption of a Traveller Accommodation Programme by Clare County Council which was adopted on the 14th February 2000. This was based on a census carried out on the 31st March, 1999. (In the three year period immediately preceding that date he was only resident in County Clare for a cumulative period of eight months in all, of which the longest was of five months duration). With regard to Tom McDonagh, he was resident in County Clare for a cumulative period of seven months in all during the three months immediately preceding the adoption of the Traveller Accommodation Programme namely preceding the 14th February, 2000. He has been resident in County Clare since August, 2001 when he moved his temporary dwelling to lands at Carygoran, Newmarket-on-Fergus, County Clare. She says that the respondent has no record of any application for housing accommodation by Owen McDonagh but that the respondent was informed in August, 1996 he was moving to Ballybofey, County Donegal and would not be returning to Shannon and would not therefore require accommodation in the area. He applied to Mayo County Council for a house in July, 2001.

8 She says that the respondents do have a record of an application from Tom McDonagh for housing in February 1992 and further says that he submitted an application on the 5th December, 2001 which is still under consideration. She says that at the time of swearing her affidavit he had left the functional area of the local authority and the respondent is awaiting reports in relation to the application. She further says that Owen McDonagh's accommodation needs will be included by the respondent in the next assessment of accommodation needs in County Clare. Any application by him for accommodation will be examined on its own merits having regard to all the circumstances at the time.

THE TRAVELLER ACCOMMODATION PROGRAMME

9 This was adopted on the 14th February, 2000. It was based on a census which took place on the 31st March, 1999. That census established that 53 indigenous traveller families were in immediate need of permanent accommodation. In addition eight transient traveller households were located in the respondent's fuctional area. Cognisance was also taken of projected traveller population increase over the following five years. It was envisaged that additional transient sites may be deemed necessary.

10 The Traveller Accommodation Programme decided initially that eleven permanent and two transient sites would be required and the respondent proposed a tentative time scale for the phasing in of this programme. In addition an urgent need for emergency halting sites was recognised to accommodate families at present on the roadside.

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