O'Reilly v Limerick Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-HC 2829
• Court: High Court
• Date: 01 January 1989

O'REILLY v. LIMERICK CORPORATION

BETWEEN/

JOHN O'REILLY AND OTHERS

PLAINTIFFS

AND

LIMERICK CORPORATION AND OTHERS

DEFENDANTS

1988 WJSC-HC 2829

THE HIGH COURT

Synopsis:

LOCAL GOVERNMENT

Housing

Housing authority - Duties - Breach - Building programme - Review

- Provision for members of traveller community who refuse to live

in houses - Constitution - Personal rights - Infringement -

Damages - Administration of justice - Distributive and

commutative justice - Distinction - Separation of powers - The

plaintiffs were members of the traveller community who lived,

with their children, in conditions of great poverty and

deprivation in caravans on unauthorised sites within the

functional area of the defendant housing authority - The

plaintiffs lacked access to running water, toilet facilities,

hard standing for their caravans, and facilities for the storage

and removal of their domestic refuse - The plaintiffs submitted

(inter alia) in the High Court that the defendant authority was

in breach of a statutory duty to provide a sufficient number of

serviced halting sites for the needs of the plaintiffs, and they

claimed an order of mandamus directing the defendant authority to

provide such sites - The plaintiffs also claimed damages from the

State for the suffering, inconvenience and mental stress they had

endured by reason of the State's infringement of the personal

rights conferred on the plaintiffs and their families by Articles

40 and 41 of the Constitution - It was accepted by the defendant

authority that the plaintiffs were a special category of the

traveller community and that their housing needs could not be met

satisfactorily by the provision of standard houses - A working

party, consisting of representatives of the defendant authority

and local bodies, prepared a report which recommended the

provision of water, sanitary facilities, animal enclosures and

refuse arrangements at the existing unauthorised sites used by

the plaintiffs - The report also recommended the provision of ten

serviced sites for the accommodation of 40 families of the

traveller community - In April, 1986, the defendant authority

acknowledged the special needs of the traveller community in a

motion which accepted in principle the establishment of eight

serviced halting sites within the functional area of the

authority - Section 55, sub-s. 1, of the Act of 1966 states that

it shall be a duty of a housing authority to prepare and adopt a

building programme setting out the works which they propose to

undertake having regard to the housing needs of their functional

area - Sub-section 2 of s. 55 states that a building programme

shall include the proposals of a housing authority for the

provision of houses, amenities, buildings and other land together

with the ancillary works or services to be provided in connection

therewith; the sub-section states that a housing authority may

include in the programme an order of priorities relating to

projects to provide housing accommodation for particular

categories or persons - Sub-section 3 of s. 55 states that, in

preparing a building programme, a housing authority shall have

regard (inter alia) to the provision of adequate and suitable

housing accommodation for persons who, in the opinion of the

authority, are in need of and are unable to provide such

accommodation from their own resources - Sub-section 4 states

that, where a housing authority has prepared and adopted a

building programme, it shall review the programme from time to

time as the Minister "or occasion" may require, and that the

authority may make and adopt any variation which it considers

proper - Held that neither s. 55 nor s. 60 of the Act of 1966

imposes upon the defendant housing authority the duty to provide

serviced halting sites for members of the traveller community -

Held that the power of the defendant Minister under s. 111 of the

Act to order a housing authority to perform one of its functions

under the Act is a power exercisable at the discretion of the

Minister and is not one which a court could direct him to

exercise - Held that s. 55 of the Act confers on the defendant

authority power to include in it's building programme proposals

for the provision of serviced halting sites for use by members of

the traveller community - Held that, where (inter alia) the

necessary financial resources are available, a duty is imposed on

a housing authority by the Act of 1966 to include proposals for

the provision of such sites for such use - Held that, where the

need for such provision has arisen after the adoption of the

building programme of a housing authority, it is the duty of the

authority to vary the programme by adding a suitable proposal for

the provision of such sites - Held that the plaintiffs were

entitled to a declaration that the defendant authority is obliged

to review its building programme adopted in 1985 and to vary it

so as to include proposals relating to the provision of serviced

sites in its functional area for use by members of the traveller

community - Held that the plaintiffs" claim to damages against

the State for its failure to provide the plaintiffs with a basic

standard of living conditions, contrary to the rights conferred

on the plaintiffs by Articles 40 and 41 of the Constitution, must

be dismissed since that claim involved a review of the manner in

which the Oireachtas had disposed of the resources of the State

and, accordingly, fell outside the scope of the administration of

justice by the Courts as prescribed by the principle of the

separation of powers - Housing Act, 1966, ss. 55–60, 111 -

Constitution of Ireland, 1937, Articles 40, 41 - (1987/10319 P -

Costello J. - 3/5/88)

|O'Reilly v. Corporation of Limerick|

CONSTITUTION

Courts

Administration of justice - Oireachtas - Social policy -

Application - Review by courts sought by plaintiff - Review

excluded from jurisdiction of courts - Unsuccessful claim by

members of traveller community for damages from the State for its

failure to provide basic living conditions - ~See~ Local

Government, housing - (1987/10319 P - Costello J. - 3/5/88)

|O'Reilly v. Corporation of Limerick|

HIGH COURT

Jurisdiction

Oireachtas - Social policy - Application - Review - Separation of

powers - Exclusion of review from jurisdiction of court -

Unsuccessful claim by members of traveller community for damages

from the State for its failure to provide basic living conditions

- ~See~ Local Government, housing - (1987/10319 P - Costello J. -

3/5/88)

|O'Reilly v. Corporation of Limerick|

Citations:

MCDONALD V FEELY UNREP 1980/15/2682

HOUSING ACT 1966 S53

HOUSING ACT 1966 S55

HOUSING ACT 1966 S55(1)

HOUSING ACT 1966 S55(2)

HOUSING ACT 1966 S55(3)

HOUSING ACT 1966 S55(4)

HOUSING ACT 1966 S55(5)

HOUSING ACT 1966 S56

HOUSING ACT 1966 S56(2)

HOUSING ACT 1966 S57

HOUSING ACT 1966 S58

HOUSING ACT 1966 S59

HOUSING ACT 1966 S60

MCNAMEE V BUNCRANA UDC 1983 IR 213, 1984 ILRM 77

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41.2

CONSTITUTION ART 40.3.1

1 Judgment of Mr. Justice Costello delivered the 3rd day of May 1988. Mary P. O'Donoghue Registrar

2 Housing Act, 1966- Mandatory Injunction - Plaintiffs, members of travellers community, living in caravans on unauthorised sites - whether defendant corporation under a statutory duty to provide serviced sites for plaintiffs - whether the Minister for the Environment under a statutory duty to provide such sites - "Building Programme" - Duty of corporation to review its "Building Programme" so as to include proposals for provision of serviced sites.

3 Constitution û Arts. 40(3) (2) and 41(2) - Whether State under a constitutional duty to provide serviced sites for plaintiffs - whether court has jurisdiction to entertain a claim for damages for breach of the constitutional duty alleged.

4 The plaintiffs are members of the traveller community residing in caravans on unofficial sites in the City of Limerick. They and their children (of which there are 150 under the age of 16) live in conditions of great poverty and deprivation. They have no running water or toilet facilities; no hard surface on which to place their caravans; no means for storing their domestic refuse and no service for its collection. They are the persons referred to by the City Manager in a report to the City Council of the 4th December 1987 "as living in totally unacceptable conditions without basic facilities".

5 The plaintiffs' wants are comparatively modest. They do not demand that they be rehoused by the Corporation; what they need are serviced halting sites, that is, sites with hard surfaces on which their caravans could be placed, toilet facilities, running water and a regular refuse collection. Their principal claim is for a mandatory injunction directing the Corporation to provide such sites claiming that the Corporation have a duty to do so under the Housing Act, 1966.Their second principal claim is that the State should pay them damages for the past suffering, inconvenience and mental distress which they have undergone, a claim based on an allegation that the conditions which they have been required to endure amounted to a breach of their constitutional rights.

6 The plaintiffs are, as I have said, travellers. It is accepted by all the parties to these proceedings that this is an identifiable group in Irish society and for the purposes of these proceedings I will use the phrase as it was defined in the Report of the Travelling People Review Body of February, 1983 in which (at paragraph 1.6) members of the traveller community are described as

"an identifiable group of people, identified both by themselves and by other members of the community (referred to for convenience as the "settled community") as people with their own distinctive life style, traditionally of a nomadic nature but not now...