Ward v South Dublin County Council

• Jurisdiction: Ireland
• Judgment Date: 31 July 1996
• Date: 31 July 1996
• Docket Number: [1995 Nos. 286, 312 and 319 JR]
• Court: High Court

Ward v. South Dublin County Council

Bernard Ward and Others

Applicants

and

South Dublin County Council

Respondent

[1995 Nos. 286, 312 and 319 JR]

High Court

Local government - Housing - Travellers - Whether housing authority obliged to provide permanent halting sites for travellers assessed as homeless - Standard of services to be provided at such sites - Housing Act, 1988 (No. 28), ss. 8, 9, 11 and 13.

Local government - Housing - Temporary dwellings - Housing authority empowered to require movement of temporary dwellings to official halting site if such dwellings can be appropriately accommodated there - Meaning of "appropriately accommodated" - Housing (Miscellaneous Provisions) Act, 1992 (No. 18), s. 10.

Section 13 of the Housing Act, 1988, applies to "persons belonging to the classes of persons who traditionally pursue or have pursued a nomadic way of life".

By s. 13, sub-s. 2 a housing authority may "provide, improve, manage and control sites for caravans" used by such persons, and may carry out any works incidental thereto including the provision of services for such sites.

Section 10, sub-s. 1 of the Housing (Miscellaneous Provisions) Act, 1992, provides:—

"Where, without lawful authority, a person erects, places, occupies or otherwise retains a temporary dwelling in a public place within a distance of five miles from any site provided, managed or controlled by a housing authority under section 13 of the [Housing Act, 1988] and the temporary dwelling could, in the opinion of the authority, appropriately be accommodated on that site, the authority may serve a notice on the person requiring him, within a specified period, to remove the said dwelling to the said site."

The applicants, five traveller families, were encamped near to temporary halting sites maintained by the respondent. The respondent, in purported exercise of its power under s. 10, sub-s. 1 of the Act of 1992, served notices requiring the applicants to move to one of the temporary halting sites. The applicants refused on the basis that the halting site was inadequate. They sought injunctions restraining the respondent from taking further steps on the s. 10 notices, and also claimed that the respondent had a statutory duty to provide accommodation for them under s. 13 of the Act of 1988.

Held by Laffoy J., in directing the respondent to ascertain the accommodation requirements of the applicants and assess their eligibility, 1, that s. 13 of the Housing Act, 1988, imposed an obligation upon the respondent to provide halting sites for caravans used by persons to whom that section applied and who were assessed as homeless. Those sites must be permanent and the quality of services available must be the same as the quality of services for those provided with homes.

University of Limerick v. Ryan (Unreported, High Court, Barron J., 21st February, 1991), O'Brien v. Wicklow County Council (Unreported, High Court, Costello J., 10th June, 1994), County Meath V.E C. v. Joyce [1994] 2 I.L.R.M. 210 and Mongan v. South Dublin County Council (Unreported, High Court, Barron J., 31st July, 1995) applied.

2. That having regard to the reasonable efforts of the respondent to meet its statutory duties to the travelling community under s. 13 of the Act of 1988, there were no grounds for granting a mandatory injunction to compel further activity. It was not the function of the Court to direct a local authority as to how it should deploy its resources or as to the manner in which it should prioritise the performance of its various statutory functions. These were matters of policy outside the ambit of judicial review. However, because the duty imposed by s. 13 of the Act of 1988 was vague and lacking in specificity it must be performed in a rational and reasonable manner; accordingly, a coherent and fair system of allocating halting sites to persons qualifying, or expecting to qualify, under the provisions of the Act should be adopted.

3. That in determining whether a temporary dwelling could "appropriately be accommodated" at a halting site specified in a notice under s. 10, sub-s. 1 of the Act of 1992, the test was whether the housing authority was in a position to provide a bay at the site which was adequate and suitable for the continued occupation of the temporary dwelling at the location by the relevant family. If there was accommodation in the halting site to which a person was directed by a s. 10 notice, which was located in hygienic environs and was in proper physical condition and adequately serviced, the person on whom the notice was served disobeyed it on pain of incurring the sanctions set out in section 10.

McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July, 1980) applied.

4. In the present case, the evidence was that the designated site was not adequate or suitable by reason of its physical condition, and the inadequacy of services there. Accordingly, the notices served on the applicants were invalid.

5. That service of a notice under s. 10 of the Act of 1992 was not an implicit acknowledgment that the housing authority owes the recipient of such notice a duty under s. 13 of the Act of 1988. Section 10 relates to unauthorised encampments and not the travelling community as such.

6. That in directing a member of the traveller community to a halting site under s. 10 of the Act of 1992, the housing authority does not have to take account of differences in traveller culture and identity in order to ensure that there is compatibility with existing occupiers at the designated halting site.

7. That the fact that a halting site was designated by the housing authority as a temporary halting site and not intended to be maintained permanently as a halting site, was not a factor which, on its own, would render the halting site inappropriate accommodation within the meaning of s. 10 of the Act of 1992.

Cases mentioned in this report:—

County Meath V.E.C. v. Joyce [1994] 2 I.L.R.M. 210.

McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July, 1980).

McNamee v. Buncrana U.D.C. [1983] I.R. 213; [1984] I.L.R.M. 77.

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., 10th June, 1994).

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

Judicial review.

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

Leave to apply for judicial review was granted by the High Court (Laffoy J.) on the 9th November, 1995. An interlocutory order was made on the same day restraining the respondent from taking any action or proceeding which would have the purpose or effect of requiring the applicants to move to a temporary halting site prior to the determination of the main application.

The action was heard by the High Court (Laffoy J.) on the 19th June, 1996.

Cur. adv. vult.

Laffoy J.

At the hearing of this application for judicial review, only six of the applicants pursued the application, namely, Darren Smyth, Derrill Smyth, John Casey, Adaline Casey, John Furey and Rose Furey. The application was heard concurrently with the following applications:

• (a) Bernadette Kerrigan and John Kerrigan v. South Dublin County Council (No. 312 J.R. of 1995) and

• (b) Patrick O'Rourke, Mary O'Rourke, Edward Cawley, Elizabeth Cawley & Cathleen Cawley v. South Dublin County Council (No. 319 J.R. of 1995), in which only Patrick O'Rourke and...