Oædonnell v South Dublin County Council

• Jurisdiction: Ireland
• Judgment Date: 22 May 2007
• Date: 22 May 2007
• Docket Number: [2006 No. 1904
• Court: High Court

[2007] IEHC 204,

High Court

[2006 No. 1904 P]

O'Donnell v. South Dublin County Council

Mary O'Donnell (a minor suing by her mother and next friend Bridget O'Donnell), Patrick O'Donnell (a minor suing by his mother and next friend Bridget O'Donnell) and Bernard O'Donnell (a person of unsound mind suing by his mother and next friend Bridget O'Donnell)

Plaintiffs

and

South Dublin County Council

Defendant

Cases mentioned in this report:-

Anufrijeva v. Southwark London Borough Council[2003] EWHC Civ 1406, [2004] Q.B. 1124; [2004] 1 W.L.R. 603; [2004] 1 All E.R. 833.

Bode v. Minister for Justice [2006] IEHC 341, (Unreported, High Court, Finlay Geoghegan J., 14th November, 2006).

Botta v. Italy (App. No. 21439/93) (1998) 26 E.H.R.R. 241.

Chapman v. The United Kingdom (App. No. 27238/95) (2001) 33 E.H.R.R. 399.

Codona v. The United Kingdom (App. No. 485/05) (Unreported, European Court of Human Rights, 7th February, 2006).

T.D. v. Minister for Education [2001] 4 I.R. 259.

Doherty v. South Dublin County Council (No. 2)[2007] IEHC 4, [2007] 2 I.R. 696.

East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1973) 109 I.L.T.R. 13.

Ireland v. United Kingdom (App. No. 5310/71) (Unreported, European Court of Human Rights, 18th January, 1978).

Moldovan and others v. Romania (App. Nos. 41138/98 & 64320/01) (Unreported, European Court of Human Rights, 30th November, 2005).

Mongan v. South Dublin County Council (Unreported, High Court, Barron J., 31st July, 1995).

O'Brien v. Wicklow County Council (Unreported, High Court, Costello J., 1st June, 1994).

O'Reilly v. Limerick Corporation [1989] I.L.R.M. 181.

Poplar Housing Association Ltd. v. Donoghue [2001] EWHC Civ 595, [2002] Q.B. 48; [2001] 3 W.L.R. 183; [2001] 4 All E.R. 604.

R. v. A. (No. 2) [2001] UKHL 25, [2002] 1 A.C. 45; [2001] 2 W.L.R. 1546; [2001] 3 All E.R. 1.

R. (Bernard) v. Enfield London Borough Council[2002] EWHC 2282 (Admin), [2003] L.G.R. 423.

R. (J.) v. Enfield London Borough Council [2002] EWHC 735 (Admin), [2002] L.G.R. 390; [2002] 2 F.L.R. 1.

In re S. (Care Order: Implementation of Care Plan)[2002] UKHL 10, [2002] 2 A.C. 291; [2002] 2 W.L.R. 720; [2002] 2 All E.R. 192.

Sisojeva & Others v. Latvia (App. No. 60654/00) (Unreported, European Court of Human Rights, 16th June, 2005).

University of Limerick v. Ryan (Unreported, High Court, Barron J., 21st February, 1991).

Statutory interpretation - Construction - European Convention - State's obligations - Interpreting and applying statutory provisions - Manner compatible with obligations under Convention - Interpretative obligation - Principles applicable - Techniques to be used - Reading down of express language - Separation of powers - Boundary between interpretation and amendment - European Convention on Human Rights Act 2003 (No. 20), ss. 2, 3 and 5.

Human rights - European Convention - Private and family life - Whether positive obligation to vindicate right - Recognition of vulnerable position of minorities - Whether maladministration constitutes breach of article 8 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 8.

Housing - Traveller accommodation - Obligation to provide caravan site if preferred - Whether obligation to provide caravan in addition to site - No express obligation - Whether obligation to be implied - Compatibility with European Convention - Housing Act 1988 (No. 28), ss. 9 and 13 - Housing (Traveller Accommodation) Act 1998 (No. 33) - European Convention on Human Rights Act 2003 (No. 20) - Constitution of Ireland 1937.

Plenary summons

The facts have been summarised in the headnote and are more fully set out in the judgment of Laffoy J., infra.

Proceedings were commenced by plenary summons dated the 3rd May, 2006, by which the plaintiffs claimed, inter alia,declaratory reliefs and damages in respect of alleged breach of duty owed to them on the part of the defendant.

The matter came on for hearing before the High Court (Laffoy J.) on the 30th January, 2007.

The European Convention on Human Rights Act 2003 provides in relevant part as follows:-

"2. (1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions. "

• …

• 3. (1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions.

• (2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate."

Article 8 of the European Convention for the Protection of Human Rights 1950 provides:-

"Right to respect for private and family life

• (1) Everyone has the right to respect for his private and family life, his home and his correspondence.

• (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Section 13 of the Housing Act 1988, as amended by s. 29 of the Housing (Traveller Accommodation) Act 1998, provides in relevant part:-

"(1) This section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life.

(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of section 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites."

The plaintiffs were siblings and members of a traveller family who resided with their parents and other family members in a mobile home at a temporary halting site provided by the defendant. The three plaintiffs suffered from Hurler's syndrome which leads to severe abnormalities in development resulting in orthopaedic complications with pain and immobility, visual impairment, loss of hearing and learning disability.

The defendant had in place a traveller accommodation programme, as required by the Housing (Traveller Accommodation) Act 1998, covering the period from 2005 to 2008. In the implementation of its programme the defendant was in the course of developing a permanent facility to comprise ten residential caravan bays and ten group houses. The plaintiffs' family was to be provided with a large bay in that development which would accommodate two or three caravans and include a day house.

Expert evidence was given that the mobile home in which the plaintiffs lived with seven other members of their family was seriously overcrowded and inadequate having regard to the needs of the family members with disability. The defendant contended, inter alia, that the plaintiffs' next friend acquire another caravan with the help of a loan for same. The maximum loan for the purchase of a caravan available under the traveller accommodation schemes was EUR6,350.

The plaintiffs claimed that the defendant, in allowing them to remain living in such overcrowded and inadequate conditions, was in breach of its statutory duties to them and in breach of their constitutional rights. They sought an order requiring the defendant to provide accommodation for them as had been assessed as suitable to their needs, involving, inter alia, wheelchair accessibility, or in the alternative funding to enable them to provide such accommodation.

In addition the plaintiffs claimed that there had been a failure on the part of the defendant to perform its functions in a manner compatible with the State's obligations under the European Convention for Human Rights, in particular articles 3 and 8 thereof, and sought,inter alia, damages under s. 3 of the European Convention on Human Rights Act 2003. The plaintiffs also invoked the Equal Status Act 2000 and article 14 of the Convention.

The defendant denied any breaches of duty, asserted that it had assessed the plaintiffs' long term accommodation needs and that appropriate permanent accommodation would be provided for them under the traveller accommodation programme in the new development and asserted that it had made reasonable efforts to meet their temporary accommodation needs and for the provision of financial assistance by means of loans and grants.

Held by the High Court (Laffoy J.), in finding that there had been a breach of article 8 of the Convention by the defendant, 1, that the question which arose in determining whether there had been a breach of article 8 was whether practical and effective respect for the private and family life and home of each of the plaintiffs required the defendant to adopt the measure which the plaintiffs contended was necessary to alleviate the overcrowded and potentially unsafe conditions in which the plaintiffs were living. In determining that issue, the court had to strike a fair balance between competing interests, the interests of the community as a whole, on the one hand, and the interests of the individual...