Harty v. Limerick County Council [1999] IEHC 137 (23rd March, 1999)

1. On 17th December, 1998 Mr Justice O'Sullivan by order granted the Applicants leave to apply by way of Judicial Review for:-

(a) An Order of Mandamus requiring Limerick County Council to provide adequately and suitably for the accommodation needs as provided for by the Housing Acts, 1966/1998.

(b) An Order of Certiorari quashing the order made by the Limerick County Council on the 1st April, 1998 extinguishing the public right of way over the roadway at Barrack Road, Mungret in the County of Limerick.

2. On the 18th January, 1999 an appeal from Judge O'Leary of the Circuit Court in Limerick came before me by way of a Circuit Appeal, in which Irish Cement Limited were Plaintiffs and the Applicants in the Judicial Review proceedings were Defendants. Being of opinion that the matters were inter-related I directed that they be heard before the same judge and gave other directions and ordered Discovery, the matter was referred to in Court on 22nd February, 1999 and for mention on 1st March, 1999 and came on for hearing on 9th March, 1999 and today.

1. That Limerick County Council as a housing authority was aware of the fact that the Hartys were encamped on the Barrack Road, Mungret in Co Limerick and sought to avoid or circumvent their (i.e. the County Council's) statutory duty to house the Hartys under the Housing Acts, 1966/1998 and in particular Section 10(1) of the Housing (Miscellaneous Provisions) Act, 1992, by operating or invoking their powers as a road authority by order of 1st May, 1998 extinguishing the public right of way at Barrack Road, Mungret in the County of Limerick under the terms of the Roads Act, 1993.

2. That Limerick County Council as a housing authority realising the effect that the "closure" of the Barrack Road would have on the Hartys acted perversely and in failing to have regard to the special housing needs of the Hartys as provided for by the Housing Acts, 1966/1998.

(a) That they observed the statutory provisions and procedures under the Roads Act, 1993 and in particular Section 73 of the said Act and same was not invoked or abused so as to circumvent any entitlements the Hartys might have or might have had under the Housing Acts, 1966/1998.

(b) That the decision of Limerick County Council as a local authority as to how it should apply its resources and as to the manner in which it should prioritise the performance of its various statutory functions are matters of policy which are outside the ambit of judicial review.

5. Notwithstanding that general submission, it was contended that as a housing authority Limerick County Council had, prior to action brought, made offers of accommodation which were declined.

1. The roads department/section of Limerick County Council observed the provisions of the Roads Act, 1993. They did so without knowledge of or reference to the housing department/section of Limerick County Council or the social worker of the County Council for the area.

2. That the notice placed on the extinguished public right of way was placed in a position which was properly effective and within the provisions of the Act of 1993.

3. That it was usual but not inevitable in all cases of this character that the housing department/section and/or the social worker would be aware of the intention or actions of the roads department/section which would or could have an effect on those for whom the housing department/section and/or social worker were "responsible".

4. That the apparent want of co-ordination between the various departments/sections of Limerick County Council may be open to criticism in terms of modern day office procedures and management, but this is not evidence of a conscious effort to avoid obligations under the Housing Acts.

5. I am satisfied that the order extinguishing the public right of way over Barrack Road was not perverse or designed to circumvent the provisions of the Housing Act, 1966/1998 nor is it a necessary mandatory precondition to exercising its powers under Section 73 of the Roads Act, 1993 that a local authority/road authority should first comply with Section 10(1) of the Housing (Miscellaneous Provisions) Act, 1992 however desirable such a procedure may be, it does not lie with the Court to insert preconditions into the statute of 1993.

7. I am satisfied that the road closure procedure was adopted as a result of a request from residents, and that, notwithstanding any occasional informal discussions between the management department/section of the County Council and the housing and/or environmental department/section of the County Council.

6. That applications for housing were made by the Hartys and that refusal of offers was the response. From Edward Harty (paragraph 7) of the Affidavit of Kieran Lehane, sworn 10th February, 1999. This fact of refusal was not disclosed to the Court at the ex parte stage.

7. I am satisfied on the evidence submitted to the Court both on Affidavit and orally by the officials of Limerick County Council and in particular by Mr Lehane that there has been a compliance with the provisions of the Housing Acts by Limerick County Council and furthermore that Limerick County Council have with good sense and sensitivity tried to meet the requirements as well as the needs of the Applicants and tried reasonably and carefully to balance those requirements and needs having due regard to their other obligations under the Housing Acts and furthermore did so adequately and suitably for the needs of the Applicants.

8. I am satisfied that notwithstanding the averments as to want of knowledge of the extinguishment of the public right of way set forth in paragraph (9) of the affidavit of Mr Edward Harty (sworn on 15th December, 1998) the subsequent dispute of that fact in paragraph (14) of Mr Lehane's affidavit (sworn on 10th February, 1999) was not challenged in cross-examination by the Applicants and further the evidence of Mr O'Brien in paragraphs (3) and (4) of his affidavit (sworn on 10th February, 1999) who was cross-examined on this issue, satisfied me, and I find as a fact that at all material times the first named Applicant certainly knew and as a matter of all probability the second named Applicant knew and both admittedly knew since 7th October, 1998 (over five months ago) that they were and are trespassers.

9. There is no error on the face of the record of Limerick Council's Order of the extinguishment of the public right of way on Barrack Road, Mungret, County Limerick.

9. Notwithstanding agreement as to the facts in this case and the different legal considerations to be applied I deferred judgment in case any element in the evidence in the judicial review proceedings could be prayed in aid by the Defendants in this case. (The Hartys are the Defendants in the case being brought by Irish Cement Limited).

10. Having fully considered the matter, heard Counsels' submissions and all evidence tendered and authorities opened to the Court I am satisfied generally and in particular on my finding at number (8) in the judicial review proceedings that Irish Cement Limited are entitled to the relief claimed in the civil bill.

11. Accordingly, the order of the Circuit Judge against Edward Harty and James Harty will be vacated and set aside on the order of this Court as against the Defendants will be in the terms which I will now discuss with Counsel.)

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Harty v. Limerick County Council [1999] IEHC 137 (23rd March, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/137.html Cite as: [1999] IEHC 137

High Court of Ireland Decisions

Harty v. Limerick County Council [1999] IEHC 137 (23rd March, 1999)