The Housing Acts 1966 to 2002. Noreen O'Reilly, William O'Reilly and Others v Limerick County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 29 March 2006
• Neutral Citation: [2006] IEHC 174
• Date: 29 March 2006
• Court: High Court
• Docket Number: [2005 No. 787 JR]

O'REILLY & ORS v LIMERICK CO COUNCIL

IN THE MATTER OF THE HOUSING ACTS 1966– 2002

AND SECTION 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN

NOREEN O'REILLY, WILLIAM O'REILLY, KATHLEEN O'REILLY, ARTHUR CONWAY, NOREEN O'REILLY (A MINOR SUING BY HER MOTHER AND NEXT FRIEND NOREEN O'REILLY), WILLIAM PATRICK O'REILLY (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND NOREEN O'REILLY), MARTIN O'REILLY (A MINOR SUING BY HIS MOTHER AND NEXT NOREEN O'REILLY), KATHLEEN CONWAY (A MINOR SUING BY HER MOTHER AND NEXT FRIEND KATHLEEN O'REILLY), MARGARET CONWAY (A MINOR SUING BY HER MOTHER AND NEXT FRIEND KATHLEEN O'REILLY)

APPLICANTS

AND

LIMERICK COUNTY COUNCIL

RESPONDENT

AND

THE ATTORNEY GENERAL AND HUMAN RIGHTS COMMISSION

NOTICE PARTIES

[2006] IEHC 174

[No. 787 J.R./2005]

THE HIGH COURT

HOUSING

Traveller accommodation

Halting site accommodation - Duties and obligations of housing authority - Traveller accommodation programme - Ward v South Dublin County Council [1996] 3 IR 195;University of Limerick v Ryan (Unrep, BarronJ, 21/2/1991); O'Brien v Wicklow County Council (Unrep, Costello J, 10/6/1994); County Meath VEC v Joyce [1994] 2 ILRM 210 and Mongan v South Dublin County Council (Unrep, Barron J, 31/7/1995)followed - Housing Act 1988 (No 28), ss 2, 9 and 13 - Housing (Traveller Accommodation) Act 1998 (No 33), ss 7, 10, 16 and 29 - Relief granted (2005/787JR - MacMenamin J- 29/3/2006) [2006] IEHC 174 O'Reilly v Limerick County Council

Facts: The Applicants were members of the travelling community. They applied for orders by way of judicial review which raised the issue whether the respondent qua housing authority and/ or planning authority had fulfilled its duties as prescribed in the Housing Acts 1966 to 2004 and the Planning and Development Act 2000 with regard to the applicants.

Held by McMenamin J. in making orders in favour of the applicants that the statutory requirements of the Housing (Traveller Accommodation) Act 1998, the Planning and Development Act and the Housing Act 1988 had not been complied with. It was not a rational implementation of statutory duty to cite a long term aspiration as a basis for not dealing with the more immediate needs and requirements of the applicants as they were now located and the conditions under which they were constrained to live.

Reporter: R.W.

PLANNING & DEVELOPMENT ACT 2000 S160

HOUSING ACT 1988 S13

HOUSING (TRAVELLER ACCOMMODATION) ACT 1988 S29

CONSTITUTION ART 40.3

CONSTITUTION ART 41

CONSTITUTION ART s45

PLANNING & DEVELOPMENT ACT 2000 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S6

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S7

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S10HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S13

PLANNING & DEVELOPMENT ACT 2000 S10(2)(I)

RSC O.60A

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S16

HOUSING ACT 1988 S13(1)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S29(2)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S29(7)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S5

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S6

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S6(4)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S7(1)

O'REILLY v O'SULLIVAN UNREP SUPREME 26.2.1997 1997/11/3523

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S8(E)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S10(2)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S10(2)(e)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S16

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S16(1)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S16(3)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S16(4)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S10(3)

ROUGHAN v CLARE CO COUNCIL UNREP BARRON 18.12.1996 1997/6/2213

WICKLOW HERITAGE TRUST LTD v WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998 2000/17/6683

HOUSING ACT 1988 S2

HOUSING ACT 1988 S9

HOUSING ACT 1988 S9(2)

HOUSING ACT 1988 S9(2)(I)

HOUSING ACT 1988 S9(2)(J)

HOUSING ACT 1988 S13(2)

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998 S29

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

UNIVERSITY OF LIMERICK v RYAN UNREP BARRON 21.2.1991 1991/6/1486

MCDONNELL v DUBLIN CO COUNCIL UNREP SUPREME 23.7.1980

HOUSING ACT 1988 S8

HOUSING ACT 1988 S10

HOUSING ACT 1988 S11

HOUSING ACT 1988 S12

HOUSING ACT 1988 S13

MONGAN v SOUTH DUBLIN CO COUNCIL UNREP BARRON 31.7.95 1995/20/5152

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992 S10

HOUSING ACT 1988 S9(1)

O'DONOGHUE v LIMERICK CORPORATION 2003 4 IR 93

HOUSING ACT 1988 S9(2)(b)

1 JUDGMENT of Mr. Justice John MacMenamin dated the 29th day of March 2006 .

2 1. The first and second named applicants are husband and wife. They have three children who are the fifth, sixth and seventh named applicants. The third named applicant has been involved in a long term relationship with her fiancée the fourth named applicant. There are two children of that relationship who are the eighth and ninth named applicants in these proceedings. For ease of reference in these proceedings I will refer to the first set of applicants as the O'Reillys and the second set of applicants as the Conways.

The O'Reillys

3 2. The O'Reillys are members of the Travelling community. The first named applicant is originally from Castletroy in Limerick. She has lived in a caravan style accommodation all of her life except for a short period which she spent living in an apartment. She lived with her parents on a halting site in Castletroy until she got married to the second named applicant in 1994. The second named applicant is a native of Kilmallock and lived on the halting site in that town until the time of the marriage. Thereafter as there was insufficient room on the halting site the applicants moved to the side of the road and applied for accommodation from the respondent.

4 3. There are three children of the marriage. The eldest who is the fifth named applicant is called Noreen and she is nine years old. She is attending the National School in Kilmallock. The other two children of the marriage who are the sixth and seventh named applicants are twin boys who were born on 17th June, 2005 a month before the proceedings herein were initiated. The birth was somewhat difficult for the first named applicant as she had to have a caesarean section and she is still suffering from pain and discomfort. She has been advised by her doctor that for a full recovery she should be placed in proper accommodation.

5 4. There has been an unfortunate history between the applicants and the respondent County Council as regards the provision of accommodation. The O'Reillys state that caravan style accommodation is the only way of life that they know. To the recollection of Mrs. O'Reilly they have filled out three application forms for accommodation with the respondent. The first such application was in 1995 soon after the marriage. They sought halting site accommodation in the Kilmallock area. The second application form was completed in or around 1999 when a Traveller Accommodation Programme was being prepared. The O'Reillys had then been on the side of the road for about five years awaiting the development of a halting site in Kilmallock. They say there was no sign this was ever going to happen. The first and second named applicants have little formal education and did not understand that they should have applied specifically for halting site accommodation on the form. In fact when they were filling out the form they ticked all options other than that for a halting site. The family were not wholly sure what they had applied for as a local community development group filled out the forms for them and never fully discussed with them exactly which options they wanted, although they did sign the forms when they were prepared. They freely acknowledge that they should have been more careful in the way that they dealt with their accommodation application. The respondent employs two social workers in their traveller accommodation section. However the applicants state that they did not have their accommodation options fully explained to them or the importance of filling out the form accurately nor were they ever asked for their preferences even though they had poor literacy skills and little experience of dealing with officialdom. The O'Reillys say that the officials were consistent in saying that there would never be a new halting site in Kilmallock. Consequently they say it would not have made any difference what accommodation option had been indicated in the form as they were always going to be required by the respondent to accept housing.

6 5. In June 2003 the O'Reillys were finally offered accommodation in Kilmallock. This was almost 8 years after they had first applied. At the time they were under pressure to accept the offer, they say, from officials in Limerick County Council. The applicants say that they were informed that there would never be another halting site in Kilmallock and therefore their only option was to move on to an existing halting site, or accept the apartment which they were been offered, or if those alternative offers were refused, that they would be removed from the side of the road where they were camped in Kilmallock.

7 6. It must be said that the situation in relation to the existing halting site in Kilmallock was rendered more complicated as a result of other factors. The site itself is a small one in the village. It has been occupied by other members of the O'Reilly family (of which the second named applicant is a member) for upwards of 30 years. The first named applicant states that the site has been "effectively run" by the second named applicant's father Mr. Martin O'Reilly. This has apparently been the situation for upwards of 20 years. On the first day this case was listed for hearing on 8th December,...