McDonagh v The County Council of Clare and Ennis Town Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: MR. JUSTICE SMYTH
• Judgment Date: 20 May 2004
• Neutral Citation: [2004] IEHC 184
• Date: 20 May 2004

[2004] IEHC 184

THE HIGH COURT

Record No. 103JR/2002

McDONAGH & ORS v. CLARE CO COUNCIL & ENNIS TOWN COUNCIL

DUBLIN

HELEN McDONAGH & ORS

Applicants

-v-

THE COUNTY COUNCIL OF THE COUNTY OF CLARE AND ENNIS TOWN COUNCIL

Respondents

Citations:

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41

HOUSING ACT 1988

HOUSING ACT 1988 S2

HOUSING ACT 1988 S11(2)(c)

HOUSING ACT 1988 S9(2)(a)

HOUSING ACT 1988 S9(2)(b)

HOUSING ACT 1988 S9(2)(c)

HOUSING ACT 1988 S9(2)(d)

HOUSING ACT 1988 S9(2)(e)

HOUSING ACT 1988 S9(2)(g)

HOUSING ACT 1988 S9(2)(i)

PUBLIC HEALTH (IRL) ACT 1878 S107

LOCAL GOVERNMENT (SANITARY SERVICES) ACT 1948 S32

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992 S10

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S14

DUBLIN CORPORATION V MCGRATH 1978 ILRM 208

WARD & ORS V SOUTH DUBLIN CO COUNCIL 1996 3 IR 195

O'BRIEN & ORS V WICKLOW URBAN DISTRICT COUNCIL & WICKLOW CO COUNCIL UNREP COSTELLO 10.6.1994 2000/13/4988

MCDONAGH V CORK CO COUNCIL UNREP KINLEN 12.1.1998 1998/24/9655

MCDONALD V FEELY UNREP SUPREME 23.7.80 1980/15/2682

UNIVERSITY OF LIMERICK V RYAN & ORS UNREP BARRON 21/2/1991 199/ 6/1486

Abstract:

Judicial review - Provision of housing - Housing Acts 1966 to 1998 - Section 10 of the Housing (Miscellaneous) Act, 1992 - Whether the respondents complied with their statutory obligations by providing the applicants with temporary accommodation on a halting site.

The applicants received notices pursuant to section 10 of the 1992 Act obliging them to leave an unauthorised site where they had been living and to move to a temporary traveller halting site provided by the first named respondent. Prior to that the applicants had been living in conventional housing, which had been provided by the respondents. However, the applicants were required to leave that property due to a combination of alleged intimidation and their own behaviour and conduct. Consequently, the applicants sought a declaration by way of an application for judicial review that the respondents had a statutory obligation pursuant to the Housing Acts, 1966 to 1998, to provide suitable and adequate conventional housing for the applicants, being persons who were homeless and qualified for such accommodation.

Held by Smyth J. in refusing the application:

1. That the respondents did not act ultra vires in serving the section 10 notice on the applicants. The notice was appropriate to the circumstances and it was not intended that the move to the halting site was a final solution and accordingly it was an adequate and sufficient discharge of the duty of the respondents to the applicants.

2. That it would have been unwise and inappropriate for the respondents to have disclosed to the applicants where they stood in the scheme of priorities of the housing list.

Reporter: L.O’S.

1 APPROVED JUDGMENT DELIVERED BY MR. JUSTICE SMYTH ON THURSDAY 20TH MAY 2004

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

APPEARANCES

For THE APPLICANT:

MS. M. O'TOOLE SC

Instructed by:

For THE RESPONDENT:

MR. J. CONNOLLY SC

Instructed by:

COPYRIGHT:

3 Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

JUDGMENT OF MR. JUSTICE T.C SMYTH DELIVERED THE 20TH DAY OF MAY 2004

MR. JUSTICE SMYTH: On 25th February 20 02, by Order of McKechnie J, the Applicants obtained leave to apply for judicial review for the reliefs following:-

4 1. A Declaration that the first and second-named Respondents have a statutory obligation under the Housing Acts, 1966- 1998, to provide suitable and adequate conventional housing for the Applicants, being persons who are homeless within the terms and meaning of the Housing Acts, 1966-1998 and qualified for such accommodation.

5 2. A Declaration that the first and second-named Respondents have failed by virtue of the breach of statutory duty in omitting to provide suitable and adequate accommodation to vindicate the Constitutional rights of the Applicants and have infringed the rights of the Applicants to bodily integrity and their right not to have their health endangered as warranted by Article 40.3.1 - 2 and have infringed the family rights of the Applicants as warranted by Article 41.

6 3. A Declaration that the Applicants' housing needs have been assessed by the first and second-named Respondents within the terms and meaning of the Housing Acts, 1966- 1998and that the Applicants are approved and included in an allocation by the first and second-named Respondents for suitable and adequate conventional housing accommodation.

7 4. A Declaration that the provision of temporary halting site accommodation with the intention that the tenants will reside there for a period of years is an unlawful, insufficient and inadequate performance of the duty of the Respondent to provide the Applicants with suitable living accommodation.

8 5. An Order of mandamus requiring the first and second-named Respondents to take such steps as are necessary to provide the Applicants with suitable and adequate accommodation in conventional housing, including suitable and adequate temporary or. emergency accommodation in conventional housing.

9 6. Without prejudice to the foregoing, an Order of mandamus obliging the first and second-named Respondents to disclose and provide details to the Applicants concerning their place in the order of priority on the first and second-named Respondents' housing lists pursuant to the scheme of priorities under the Housing Act, 1988.

10 The grounds upon which reliefs were given to the Applicants were that:-

11 1 (a) The Respondents are housing authorities exercising concurrent statutory duty pursuant to the Housing Acts, 1966- 1998. The Applicants were on the housing list in respect of the provision of conventional housing of both Respondents. The Respondents had a duty to provide suitable and adequate accommodation for the Applicants in conventional housing. The Respondents had a duty to make particular provision and have special regard in any scheme of priorities for the letting of dwellings for persons such as the Applicants who were qualified for the provision of housing and in need of accommodation arising from an emergency.

12 2 (b) The Applicants were homeless within the terms and meaning of Section 2 of the Housing Act, 1988, members of the Travelling Community and persons whom the Respondent housing authorities had reason to believe required and were in need of conventional housing and unable to provide same from their own resources. The Applicants' living circumstances were unfit for human habitation and were materially unsuitable and overcrowded and they were in urgent need of suitable and adequate accommodation in conventional housing for medical reasons.

13 3 (c) The Applicants' immediate need for suitable and adequate accommodation arises from an emergency and in the scheme of priorities in respect of the letting of dwellings (as provided for in Section 11(2) (c)) and in respect of the making of housing assessments pursuant to Section 9(2) (a), (b), (c), (d), (e), (g) and (i) of the Housing Act, 1988, the first and second named Respondents have a duty to make particular provision for persons whose immediate and urgent need for accommodation arose from such emergency and to have regard for the particular circumstances of the Applicants. Section 10 of the Housing Act, 1988 contained express provisions permitting the provision of a financial assistance and assistance with accommodation for homeless persons. The Applicant family's sole income was derived from social welfare benefit payments and they were unable to provide for the accommodation needs of their families from their own resources. The Respondents had a duty to provide by way of interim measures, suitable and adequate accommodation in conventional housing for the Applicants.

14 2. Some of the children of Thomas and Mary McDonagh are suffering from ill health and the failure by the first and second named Respondents to provide them with suitable and adequate conventional housing accommodation infringed the constitutional rights of those Applicants to bodily integrity and their right not to have their health endangered.

15 3. (a) The first named Respondent has acted ultra vires Housing Acts, 1966- 1998and in purporting to invoke the provisions of Section 10 of the Housing (Miscellaneous Provisions) Act. The Applicants are owed a duty in respect of the provision of suitable and adequate accomodation in conventional housing which duty cannot be adequately or sufficiently met by the use or mechanism of a Notice under Section 10. The purported Notices were issued in circumstances where the first named Respondent is in continuing breach of its statutory duty to the Applicants.

16 4 (b) The purported provision of accommodation for the Applicants at a temporary halting site at Glenina, Gort Road, Ennis is neither appropriate, suitable or adequate for the Applicants who have extensive health and medical problems within their families and who have expressly and clearly stated their wish to be accommodated in conventional non traveller specific accommodation and who have been accepted as qualified for such accommodation by the respective Housing Authorities.

17 4. The Respondents had a duty to operate and implement pursuant to Section 11 of the Housing Act, 1988any scheme of priorities for the letting of dwellings to persons who are homeless and in particular need of accommodation on medical and safety grounds. This duty included the maintenance and availability of housing stock of conventional housing including the availability...