High Court of Ireland Decisions

1. 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:

2. The respondent, which is the housing authority for the area, provides three halting sites for travellers in the Clondalkin area of County Dublin: two temporary halting sites, one at Bawnogue (Deansrath) and the other at Lynch’s Lane; and a permanent halting site at Kishogue.

3. All of the applicants are members of the traveller community.

4. In October, 1995, Mr. and Mrs. Smyth and their four young children were living in a caravan which was parked in a field situate at Lynch’s Lane, Clondalkin, County Dublin. The field, which, for the sake of clarity, I will refer to as “the Lynch’s Lane field” is within the functional area of the respondent. At that time, Mr. and Mrs. Casey and their two children, and Mr. and Mrs. Furey and their six children, were living in their respective caravans, which were also parked in the Lynch’s Lane field. In mid-October, 1995, the respondent served on each of the families a notice under s. 10 of the Housing (Miscellaneous Provisions) Act, 1992, requesting them to move their caravans to Bawnogue halting site. By order of this Court made on the 9th November, 1995, the Smyths, the Caseys and the Fureys were given leave to apply for various reliefs by way of judicial review and it was ordered that the respondent be restrained until after the determination of this application, or until further order in the meantime, from taking any action or proceedings which would have the purpose or effect of requiring them and their families to move into the temporary halting sites at Lynch’s Lane or Bawnogue.

5. In late November, 1995, Mr. and Mrs. Kerrigan and their family were living in a caravan which was parked on roadside ground at a road known as the Old Lynch’s Lane, Clondalkin, which is within the functional area of the respondent. On the 21st November, 1995, a notice under s. 10 of the Act of 1992 was served by the respondent on Mr. and Mrs. Kerrigan requesting them to move their caravan to Bawnogue halting site. On the 24th November, 1995, this Court granted Mr. and Mrs. Kerrigan leave to seek various reliefs by way of judicial review and made an order restraining the respondent until after the determination of this application, or until further order in the meantime, from taking action or proceedings which would have the purpose or effect of requiring the applicants and their families to move into the temporary halting site at Bawnogue.

6. On the 30th November, 1995, Mr. and Mrs. O’Rourke - their caravan in which they were living with their six young children having been moved by officials of Dun Laoghaire-Rathdown County Council off a plot of ground near the Dropping Well public house at Milltown, which is within the functional area of Dun Laoghaire-Rathdown County Council moved it on to an open space near the Ely Gate at Lower Dodder Road, which open space is within the functional area of the respondent. On the 1st December, 1995. the respondent served notice on Mr. and Mrs. O’Rourke under s. 10 of the Act of 1992 requesting them to move their caravan to Bawnogue halting site. By order of this Court made on the 7th December, 1995 , Mr. and Mrs. O’Rourke were given leave to seek various reliefs by way of judicial review and the respondent was restrained until after the 18th December, 1995 , from taking any action or proceedings which would have the purpose or effect of requiring the O’Rourke family to move into the temporary halting site at Bawnogue.

7. The Smyth family, the Casey family amid the Furey family are still residing in their respective caravans in the Lynch’s Lane field, although the Smyths moved away for a period at Christmas, 1995. By agreement with the respondent, the Kerrigan faniily moved to Kishogue halting site on the 30th November, 1995, and remained there until the 7th June, 1996, when Mrs. Kerrigan and her children moved to the Lynch’s Lane field, because they considered that the Kishogue halting site was badly maintained, the facilities were inadequate and it was too isolated. The O’Rourkes are still residing in their caravan on the open space near the Ely Gate. There are no sanitary services or other facilities or services of any description in the Lynch’s Lane field or on the open space near the Ely Gate.

8. Each of the applicants has sought declaratory relief in the same terms designed to define the duty of the respondent, as housing authority, to him or her, as a member of the traveller community. In its statement of opposition in each of the applications, the respondent has denied that s. 13 of the Housing Act, 1988, imposes any duty on the respondent to provide sites for caravans used by persons to whom the section applies. Moreover, at the hearing of the application, it was submitted on behalf of the respondent that s. 13 is permissive, but not mandatory. Having regard to the existence of four clear decisions of this Court as to the effect of s. 13 to the contrary, one of which affected the respondent, the respondent’s stance, which apparently is not merely a pleading posture, is wholly incomprehensible and unsustainable.

9. Chronologically, the earliest of the four decisions is the decision of Barron J. in University of Limerick v. Ryan (Unreported, High Court, Barron J., 21st February, 1991). In his judgment, Barron J., having referred to the decision of the Supreme Court in McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July, 1980) and having considered the provisions of ss. 8 to 13 inclusive of the Act of 1988 went on to state as follows at p. 28:-

10. The foregoing is such a clear statement of the effect of s. 13 that, in my view, it would be otiose to attempt to elaborate on it. The only comment which I think is necessary in the context of the instant applications is that I believe that, by the expression “temporary halting site” in the last sentence, Barron J. meant a halting site for transient travellers.

11. The construction put on s. 13 by Barron J. in University of Limerick v. Ryan was expressly accepted by Costello J., as he then was, in 0’Brien v. Wicklow County Council (Unreported, High Court, Costello J., 10th June, 1994). In County Meath V.E.C. v. Joyce [1994] 2 I.L.R.M. 210 , Flood J. also came to the conclusion that s. 13 imposes a duty on a housing authority. In his judgment at p. 219, lie stated as follows:-

12. By virtue of the provisions of s. 13, this phrase is applicable to and includes the travelling community.”

13. The final decision in the quartet, is the decision which affects the respondent itself, that is to say, the decision of Barron J. in Mongan v. South Dublin County Council (Unreported, High Court, Barron J., 31st July, 1995). The issues in that matter were practically identical to the issues which arise on the instant applications. The Mongan family, who were members of the traveller community, had been served with notices under s. 10 of the Act of 1992 directing them to move their caravans to the respondent’s temporary halting site at Lynch’s Lane. In his judgment, Barron J. reiterated that s. 13 of the Act of 1988 imposes an obligation on a housing authority to provide halting sites for travellers, but it is not an absolute duty; it is a duty to provide for those who are assessed under s. 9, sub-s. 1 of the Act of 1988 as being homeless. In his judgment, Barron J. specifically addressed the question of the level of services to be provided under s. 13 and stated as follows at p. 2:-

14. Barron J. indicated that he proposed making a declaration that persons who are identified as being entitled to have sites for caravans provided for them under s. 1 3 are entitled to have the same services provided for them as would be provided for those persons for whom permanent housing is provided. On the facts of that case, he held that the evidence showed the services at the temporary halting site at Lynch’s Lane were totally inadequate. However, the Mongan family had been offered a site at Kishogue which, on the evidence, had got all the necessary services and there was no reason why that offer should not be accepted by them.

15. Despite the stance adopted by the respondent as to the effect of s. 13 of the Act of 1988, the thrust of the evidence adduced on behalf of the respondent was that the respondent was and is committed to providing, and is doing its best in difficult circumstances to provide, accommodation for the traveller community. To illustrate the strength of its commitment, it was pointed out that according to the 1994 Traveller Census carried out by the Department of the Environment, 16% of the total number of halting site units constructed in the country are located within the respondent’s functional area, although it has only 7% of the country’s traveller population. To illustrate the extent of the difficulties facing the respondent, it was pointed out that the number of traveller families within the respondent’s functional area requiring permanent accommodation rose by 28% to 219 families between the 1994 Traveller Census and the most recent traveller census, the 1995 Traveller Census.

16. The respondent meets traveller accommodation needs by allocating standard housing and providing and allocating group housing and halting sites. Its current priority is to implement the remaining elements of its current five year program, which dates from 1991. Implementation of proposals in respect of four schemes, which will accommodate 30 families, is in train and the projected cost of the four schemes is in excess of £2,000,000. The respondent is also engaged in the upgrading of the Lynch’s Lane halting site and the projected cost of this work is £682,000. Proposals have been approved by the Department of the Environment for a major and complete redevelopment of the Bawnogue halting site. The redeveloped site will be subdivided into approximately six self-contained halting sites with a range of facilities. The scheme is estimated to cost £2.7 million and it is hoped that it will be completed by June, 1997.

17. In an effort to advance its accommodation and support programmes for travellers, the respondent has set up a Joint Committee on the Travelling Community, consisting of elected councillors, Council officials and representatives of travellers’ sites, traveller interest groups, community representatives and voluntary and statutory groups interested in the welfare of the travelling community such as Crosscare, the Eastern Health Board and the Department of Education, and its inaugural meeting was held on the 16th April, 1996. The evidence also establishes that the problem of traveller accommodation is being addressed at national level following the Task Force Report on the Travelling Community published in 1995 and the setting up of a special unit within the Department of the Environment to bring forward a five year national strategy for the accommodation of the travelling community.

18. As is clear from the decisions of this Court in University of Limerick v. Ryan, 0’Brien v. Wicklow County Council and County Meath V. E. C. v. Joyce, this Court will intervene and provide relief by way of mandatory injunction where inactivity on the part of a housing authority in relation to its obligations under s. 13 of the Act of 1988 is such to constitute a breach of that housing authority’s statutory duty. On the evidence, I am satisfied that the respondent is currently taking steps to fulfil its statutory obligations under s. 13 to the members of the traveller community to whom it owes such obligations.

19. It is not the function of this 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 are matters of policy which are outside the ambit of judicial review. Moreover, in relation to the function at issue here, the provision of accommodation in the form of halting sites for members of the travelling community to whom a housing authority owes a duty under s. 13, while there may be informed opinions as to how the function would be best performed, which differ from the approach being adopted by the housing authority, it is no function of this Court to adjudicate on the merits between the differing points of view.

20. The respondent specifically denies that any of the applicants, other than the Kerrigans and, perhaps the Caseys, are persons to whom it owes a duty to provide halting site accommodation. It is contended that the Smyth family and the Furey family, having recently arrived from England and having no residential history within the functional area of the respondent, are not owed a duty. The attitude to the Casey family, seems to be ambivalent in that it was suggested at one stage that, having recently moved from the functional area of Fingal County Council to the Clondalkin area, they are not owed a duty, while at another stage it was acknowledged that they are owed a duty. It is contended that the O’Rourkes do not require to be accommodated by the respondent; that they are seeking permanent halting site accommodation within the functional area of Dun Laoghaire-Rathdown County Council.

21. In making the mandatory periodic assessments of the need for the provision of adequate and suitable housing accommodation stipulated in s. 9 of the Act of 1988, a housing authority is enjoined to have regard to the need for housing of persons to whom s. 13 applies, that is to say, persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life. By contrast to the provisions contained in the Act of 1988 in relation to the allocation of dwellings, which must be allocated in accordance with a scheme of priority made by the housing authority and approved by the Minister for the Environment under s. 11, s. 13 is remarkably vague and lacking in specificity as to the manner in which halting sites are to be allocated. I respectfully agree with the view expressed by Flood J., in the passage from County Meath V.E.C. v. Joyce [1994] 2 I.L.R.M. 210 quoted above, that the functions of a housing authority under s. 13 must be performed in a rational and reasonable manner. This, in my view, must involve the adoption of a coherent and fair system of allocating halting site units to persons who have been included in the most recent assessment under s. 9 or who will be required to be included in the next assessment.

22. While a person to whom s. 13 applies who has recently arrived within the function area of a particular housing authority may have little prospect of qualifying for accommodation under the prevailing system for allocation of halting site units, nevertheless, as is clear from the judgment of O’Higgins C.J. in McNamee v. Buncrana Urban District Council [ 1983] I.R. 213, the housing authority must have regard to the fact that housing needs and traveller accommodation needs in its area are continuing to grow, if that be the case, or to change and, accordingly, cannot ignore the fact that there are people without accommodation, even though, at the particular point in time, they do not qualify under an existing scheme or system. It is for the housing authority, however, to determine priorities in relation to allocation of halting site units and, as was recognised in the judgment of Costello J., as he them was, in 0’Brien v. Wicklow County Council (Unreported, High Court, Costello J., 10th June, 1994) this Court has no function in ordering provision of a halting site unit for any particular applicants or in any particular order.

23. In each of these cases, the event which precipitated the institution of the application was the service of a notice under s. 10 of the Act of 1992. In addition to the broad objective of obtaining declaratory relief as to the respondent’s duty to him or her, each applicant also has a narrower objective of preventing the respondent from acting on foot of the relevant s. 10 notice.

24. Sub-section 1 of s. 10 provides as follows:-

25. Sub-section 4 provides that any person on whom a notice under sub-s. 1 is served who fails in any respect to comply with any requirement of the notice shall be guilty of an offence and sub-s. 12 provides that any person guilty of an offence under sub-s. 4 shall be liable on summary conviction to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding one month or to both such fine and such imprisonment. Sub-section 5 empowers the housing authority, if the requirements of a notice under sub-s. 1 have not been complied with, to remove or procure the removal of the temporary dwelling to the site specified in the notice or to another location for storage. Under sub-s. 3 the consequences of sub-ss. 4 and 5 can be avoided by removing the temporary dwelling to a location in which it may be lawfully retained.

26. It is clear that the purpose of s. 10 is to control unauthorised encampment and unauthorised parking of caravans and mobile homes generally. It is not specifically directed at the traveller community. It achieves its purpose by constituting disobedience to a notice served thereunder a criminal offence. It is a precondition to the service of a valid notice under s. 10 that there should be within a distance of five miles from the location of the offending temporary dwelling a halting site provided by the housing authority on which the offending temporary dwelling could “appropriately be accommodated”. In relation to each of the s. 10 notices in issue here, the principal controversy was whether, when the notice was served, the temporary dwelling in relation to which it was served could “appropriately be accommodated” at Bawnogue Halting Site. In each case the temporary dwelling was occupied by a family when the notice was served and that occupation would require to continue after relocation. In my view, in determining whether, where each notice was served, the temporary dwelling in relation to which it was served could “appropriately be accommodated” at Bawnogue Halting Site, the test to be applied, adopting the test applied by the Supreme Court in McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July, 1980) is whether the respondent was in a position to provide a bay at Bawnogue Halting Site which was “adequate and suitable” for the continued occupation of the temporary dwelling at that location by the relevant family. On the evidence, I am satisfied that by reason of the physical condition of and the inadequacy of the services at the bays at Bawnogue Halting Site which were vacant when the s. 10 notices were served, the applicants’ temporary dwellings could not have been appropriately accommodated at Bawnogue Halting Site. Therefore, I am of the view that the respondent was not entitled to invoke s. 10 and that the purported notices were not validly served under s. 10 amid that the respondent was and is not entitled to take any action on foot of those notices.

27. A number of propositions have been advanced on behalf of the applicants in relation to s. 10 which I reject. First, service of a notice under s. 10 on a person is not an implicit acknowledgement that the housing authority owes a duty to that person under s. 13 of the Act of 1988. In enacting s. 10 the legislature has impliedly authorised a housing authority to use a halting site provided under s. 13 for the purposes of dealing with unauthorised encampment and unlawful parking under section 10. Secondly, in directing a member of the traveller community to a halting site under s. 10, a housing authority does not have to take account of traveller culture and identity and does not have to ensure compatibility with existing occupiers in selecting the location to which such a person is directed in the s. 10 notice. Thirdly, the fact that a halting site has been designated by the housing authority as a temporary halting site and is not intended to be maintained as a halting site permanently, is not a factor which, on its own, would render that halting site inappropriate accommodation. In short, in my view, if there is accommodation in the halting site to which a person is directed by a s. 10 notice, which is located in hygienic environs and is in proper physical condition and adequately serviced, the person on whom it is served disobeys the notice on pain of incurring the sanctions provided for in section 10.

28. In the case of the Kerrigan family it was submitted that the respondent had not established that when the s. 10 notice was served the Kerrigan family caravan was located on a “public place” as defined in section 10. While, on the evidence before me, I cannot determine whether the Kerrigan family caravan was located on a public place at the relevant time, the point is academic because, in any event, I find that the s. 10 notice was invalid in that this caravan could not have been at that time appropriately accommodated at Bawnogue halting site, to which the s. 10 notice had directed it. On the evidence, 1 am satisfied that the accommodation at Kishogue halting site, which the Kerrigan family subsequently accepted from the respondent, constituted appropriate accommodation within the meaning of s. 10 of the Act of 1992.

29. Having regard to what I consider to be the proper interpretation of the relevant statutory provisions, as set out above, and my conclusions on the evidence adduced on these applications, I consider that the only reliefs to which the applicants are entitled are as follows:-