McNamee v Buncrana Urban District Council

JurisdictionIreland
JudgeMiss Justice Carroll,O'HIGGINS C.J.
Judgment Date08 March 1983
Neutral Citation1983 WJSC-HC 3128
Docket NumberNo. 1210P/1983
CourtHigh Court
Date08 March 1983

1983 WJSC-HC 3128

THE HIGH COURT

No. 1210P/1983
McNAMEE v. BUNCRANA UDC

BETWEEN:

MARTIN McNAMEE AND NOELEEN McNAMEE
Plaintiffs

and

THE COUNCIL OF THE URBAN DISTRICT OPBUNCRANA
Defendant

Subject Headings:

LOCAL GOVERNMENT: housing; housing

Subject Headings:

LOCAL GOVERNMENT: housing; housing

1

Judgment of Miss Justice Carrolldelivered the 8th day of March 1983

2

The Plaintiffs, Mr. and Mrs. McNamee, claim that the Defendant, Buncrana Urban District Council, is acting ultra vires in purporting to allocate houses to persons residing outside the urban district of Buncrana

3

Buncrana U.D.C. is the housing authority for the urban district of Buncrana (see section 2(1) of the Housing Act 1966).

4

Under section 53 of that Act there is a duty on a housing authority to inspect houses in their functional area and ascertain to what extent there are houses unfit for human habitation in the area, whether there is overcrowding in the area, and other matters as the Minister may specify. They must then assess as respects the areathe adequacy of the supply of housing and prospective futuredemand.

5

It is clear that it is the housing needs of their functional area with which the housing authority are concerned.

6

Under section 55 there is a duty on a housing authority to prepare and adopt a programme setting out works they propose having regard to the housing needs of their functional area. In preparing the building programme the housing authority must have regard to certain objectives including the repair, closure or demolition of houses unfit for human habitation, the elimination of over-crowding, the provision of housing for persons unable to provide accommodation from their own resources and other objectives set out in sub-section (3)

7

Again it is clear that the building programme must relate to the housing needs of the functional area.

8

Under section 60 there is a duty on a housing authority to make a scheme determining the priorities to be accorded to categories of persons specified in the scheme. In making the scheme the housing authority must have regard to certain primary objectives which are the repair, closure or demolition of houses unfit for human habitation, the elimination of overcrowding, the provision ofadequate and suitable housing for persons unable to provide from their own resources or suffering from T.B. The scheme may specify particular priorities to be accorded to particular categories of persons.

9

Under sub-section (2) the housing authority have power to review thescheme.

10

The Buncrana U.D.C. adopted a scheme on the 10th September 1969. By resolution dated the 18th September 1978 they eliminated Condition 3 of that scheme which provided as follows;

"No preference shall be given to any person who has not been resident in the town for a period of less than two years".

11

The deletion was to take effect from the 1st September 1979. The Minister for the Environment approved the amendment of the scheme in accordance with sub-section (5) of section 50 on the 2nd November1978.

12

On the 20th August 1981 the Department of the Environment wrote to Buncrana U.D.C. (among others) referring to a residence clause in the Dublin County Council scheme which was considered in the case of McDonald .v. Feeley and The Dublin County Council(Supreme Court dated the 23rd July 1980). The letter drew attention to the judgment of the Supreme Court delivered by the Chief Justice and in particular to the reference to the residence clause in the Dublin County Council scheme of letting priorities. It set out the following quotation from the judgment:-

"It does not seem to me to matter whether in fact the Plaintiff's husband had been born in the County of Dublin and thereby qualified his family for housing by the County Council or whether the family had been for four years resident somewhere in the county or whether in fact they were not qualified - at least their housing needs deserved consideration and attention if a scheme of priorities paying due regard to the primary objectives laid down in section 60(3) were effectively to beoperated."

13

The letter concluded as follows:-

"In view of these comments by the Chief Justice on the residence clause each scheme of letting priorities which incorporate such a clause should now be reviewed by the local authority concerned. A copy of the Supreme Court judgment as referred to above, as forwarded to each City and County Manager on the 26th November 1980."

14

As Buncrana U.D.C. had already deleted the residence clause in their scheme, no further steps were taken.

15

The Council has built 28 houses which are now available for allocation. They received 165 applications, 100 of which were eliminated on grounds not relevant to this matter. The regaining 63 applications were divided into four categories , (1) unfit and overcrowded, (2) unfit only, (3) overcrowded only, (4) unfit but not seriously overcrowded. There was one special case.

16

The Buncrana U.D.C. admits that seven of these applicants reside outside the functional area. In his affidavit the county manager states that he is obliged to house applicants residing outside the functional area relying on the dictum of the Chief Justice set out in the circular letter which he considered a direction from the Minister that applicants living outside the functional area would be considered forallocation.

17

In my opinion this contention cannot be sustained and is based on a misapprehension of the judgment of the Supreme Court. McDonald .v. Feeney and The Dublin County Council is not a similar case. There the Plaintiff, Mrs. McDonald, was resident in the functional area of the Dublin County Council and had been for fourteen months. The facts were that the County Council passed a resolution on the 12th May 1980,Mrs. MacDonald was informed on the 14th May and was required to move by the 17th May. No offer of an alternative site was given. She was therefore faced with an emergency and it was in those circumstances that the proceedings were commenced on the 16th May.

18

The Chief Justice says at page 7:-

"Having the duty to prepare such a scheme would seem to involve a corresponding duty to operate such and in doing so to have regard to the housing needs of those living in unsuitable or overcrowded conditions and those in need of housing and unable to provide forthemselves."

19

It seems to me that it is inherent in that statement that the duty relates to their functional area. In my opinion the Act does not place any duty on a housing authority...

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