McNamee v Buncrana Urban District Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1984
• Date: 01 January 1984
• Docket Number: [1983 No. 1210P
• Court: Supreme Court

High Court

Supreme Court

[1983 No. 1210P

McNamee v. Buncrana U.D.C.

Martin McNamee and Noeleen McNamee

Plaintiffs

and

The Council of the Urban District of Buncrana

Defendant

Cases mentioned in this report:—

¹ McDonald v. Feely (Supreme Court: 23rd July, 1980).

² Moran v. Corporation of Dublin (1974) 109 I.L.T.R.57.

³ Murphy v. Corporation of Dublin [1976] I.R. 143.

Local government - Housing - Allocation of houses - Housing authority's scheme of priorities - Categories of qualified applicants - Residence within functional area of authority - Whether a pre-condition to qualification - Statute - Interpretation - Application of enactment - Housing Act, 1966 (No. 21), s. 60.

Plenary Summons.

On the 21st February, 1983, the plaintiffs issued a summons and claimed therein a declaration that the amended scheme of priorities for the letting of dwellings adopted by the defendant Council pursuant to Part III of the Housing Act, 1966, had been made ultra vires the defendant and in breach of the defendant's statutory duties. The plaintiffs claimed a declaration that the proposed allocation of houses in accordance with such amended scheme had been made ultra vires the defendant and in breach of those statutory duties; and they claimed an injunction preventing the defendant Council from implementing the proposed allocation of houses to the persons described in the allocation or otherwise than in accordance with the defendant's statutory duties. The first plaintiff had applied unsuccessfully to the defendant Council for a tenancy in a house provided by the defendant pursuant to the Act of 1966. The first plaintiff and his wife, the second plaintiff, lived with their children in Buncrana in the county of Donegal in the house of the second plaintiffs father.

On the 21st February, 1983, the plaintiffs obtained in the High Court (Costello J.) an interim injunction restraining the defendant from making the proposed allocation of houses. By notice of motion dated the 23rd February, the plaintiffs applied for an interlocutory injunction. The parties agreed that the hearing of the plaintiffs' motion for an interlocutory injunction should be treated as the hearing of the action. The plaintiffs' motion was heard by Carroll J. on the 7th March, 1983.

The order of the High Court made pursuant to the judgment, supra,declared "that the Council of the Urban District of Buncrana is not entitled to allocate housing in accordance with their statutory powers and duties under the Housing Act, 1966, to persons without a residential qualification in their functional area."

The defendant appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 16th June, 1983.

Under s. 55 of the Act of 1966 it is the duty of a housing authority to prepare and adopt a building programme setting out the works which it proposes to undertake having regard to the housing needs of its functional area. Under s. 60 of that Act it is the duty of a housing authority to make a scheme determining the priorities to be accorded to categories of persons specified in the scheme in the letting of dwellings owned by the authority and provided by it under that Act.

The defendant Council, being a housing authority, prepared a scheme pursuant to s. 60 of the Act of 1966 specifying the priorities to be accorded to the persons described in the scheme. The scheme contained a clause which stated that no preference was to be given to a person who had been resident in the town of Buncrana for a period less than two years. That residence clause was subsequently deleted from the scheme which, as so amended, was then approved by the Minister for the Environment. The plaintiffs, being husband and wife, resided in the town of Buncrana. The first plaintiff had applied unsuccessfully to the defendant Council for a tenancy in a house provided by the Council. The plaintiffs objected to a proposed allocation by the defendant Council of houses which it had provided under the Act of 1966 and which it proposed to let to various applicants, including seven persons who resided outside its functional area. The plaintiffs claimed in the High Court a declaration that the defendant Council was not entitled to allocate houses under the Act of 1966 to persons who had no residential qualification in the functional area of the defendant Council.

Held by Carroll J., and affirmed by the Supreme Court (O'Higgins C.J.; Griffin and McCarthy JJ.), that the plaintiffs were entitled to the declaration sought by them since it was clear from the context of s. 60 within the Act of 1966 that the provisions of that section formed part of legislation which was designed to achieve the reduction by housing authorities of the housing needs of their functional areas.

Cur. adv. vult.

Carroll J.

The plaintiffs claim that the defendant Council is acting ultra vires in purporting to allocate houses to persons residing outside the...