High Court of Ireland Decisions

1. This is an application for Judicial Review by way of Mandamus sought by the Applicants who are all residents of an area between Ashgrove and Stag Hall, Belturbet,

2. Co. Cavan. They claim the County Council has failed in its statutory duty to maintain the road between Ashgrove and Stag Hall in good condition and repair. They claim the road is no longer safe to use and poses a real danger to road users. Liberty to issue the application for Judicial Review was granted on the 25th July, 1994.

3. In its statement of opposition the County Council pleaded that the Applicants did not have locus standi. This plea was later dropped and it was conceded that they

4. Mr. Tiernan, the county engineer, in his affidavit explains that County Cavan is broadly underlaid by a weak drumlin soil which when saturated has very low strength. It underlies approximately thirty seven per cent of the land area. The development of farm mechanisation has contributed to the break up of roads as has the increased permissible axle loading from 8 tonnes to 10.5 tonnes. Since the removal of rates from private dwellings in 1977 and from agricultural land in 1983, the County Councils are dependant on Government to make up lost revenue. This has not kept the pace with inflation. He said the Department seeks to match limited resources to unlimited/unachievable demands.

5. Cavan County Council receives funds through three sources, the levying of service charges, the levying of rates on commercial property and State support or other grants from Central Government.

6. He claims the County Council has a very small base for the payment of service charges (less than five thousand homes including homes liable for only partial charges) and the charges are levied at as high a figure as the County Council believes the market would bear. It is in a similarly disadvantageous position in raising finance through commercial rating. He said the County Council has no control whatsoever over Central Government funding although it makes representations regularly and at length. He said of 1350 County Roads in Cavan approximately six hundred could be described as being in a broadly comparable position towards the roads mentioned in these proceedings. It will cost approximately £40 million to bring all those roads into a satisfactory condition. To raise this money through rating would require the current rate on commercial property to be raised by about £92 in the pound bringing the total rate in the pound, to a figure in excess of £122 for eight years. It would cost £140,000 to bring the roads in this application to a satisfactory condition. £20,000 was expended on repairs on these roads in 1994, a decision which was taken before the issue of proceedings. He said the County Council is obliged to perform its functions within an overall budget. They have a total road survey every three years. This enables a total data base to be made depicting the road conditions in the entire network in the county.

7. The County Council did not dispute the factual condition of the roads (apart from pointing out the repairs). The position therefore is that this area comprises minor county roads, whose condition has deteriorated and which are dangerous to vehicles. The County Council has not enough money to repair them.

8. The legal issues are (a) whether there is a statutory duty to repair and maintain the roads (b) whether the lack of resources is a defence, and (c) whether there are discretionary grounds to refuse relief.

9. Under section (2) of the same Act “functions” includes powers and duties.

10. The Applicants submitted that that is an explicit reference to the liability, duty or obligation to construct or maintain roads and is internal evidence that ss(1) and (2) are indeed referring to the same.

11. The general rule is that the local authority must maintain the road in a condition adequate to meet ordinary traffic. [See Keane on Local Government (at p.66)].

12. The Applicants submit that Mandamus is the appropriate remedy. Section 1 of the Local Government (Ireland) Act, 1898 provides:-

13. Mandamus will issue in the case of nonfeasance (see R (Westropp) -v- Clare County Council) 1904 2 I.R. 569. If Mandamus is not granted there is no remedy available to the Applicants. They have a statutory right to have their roads maintained. It is not an answer to the Applicants' case that potential rights may be prejudiced if their roads are repaired. The County Council cannot escape liability by saying which among its duties it will choose.

14. The plea of impecuniosity is analogous to the plea made in relation to the maintenance of courthouses under the Courthouses (Provision and Maintenance) Act, 1935. Lynch J. in Hoey -v- Minister for Justice (1994 I.L.R.M. 334) held that if a local authority was liable there was a statutory obligation to force them and budgetary embarrassment was no answer.

15. Another example is Shannon Regional Fisheries -v- Cavan County Council (unreported) Murphy J., 21st December, 1994 where the County Council were prosecuted for pollution.

16. Under the local government (Financial Provisions) Act, 1978 domestic ratepayers were relieved of the obligation to pay rates. Section 9 (since modified) required the Minister to pay grants to Local Authorities equal to the aggregate of the allowances made under Sections 3, 4 and 6 of the Act in the local financial year. Pre 1978 there was a more generalised financial base on which a County Council could raise money. It could not be excused from complying with its statutory duties by saying the rates fund was not sufficient. Provision could be made by raising the rates in the following year.

17. Section 9 was again amended by Section 46 of the Local Government Act, 1994 by substituting a new Section:-

18. This removed any reference to the rateable income foregone. It was submitted that if a local authority would not be allowed pre-1978 to say that it had not sufficient funds, it should not be allowed to do so now. The County Council cannot decide whose rights will be vindicated and whose will not. This would give the County Council power to withdraw from its statutory duties. The answer is that it must obtain funding from Central Government. The Central Government having created statutory rights and taken away the County Council's power to raise adequate money by way of rates, must provide funds and cannot plead it has no money. To allow that is to abrogate rights out of existence.

19. While the Court would be slow to enjoin a body which is self governing and has difficult choices to make, it should do so if there is a manifest breach of statutory duty. In this case if Mandamus is not granted there is no remedy.

20. The County Council did make an offer that if the residents came up with £21,000 (i.e. fifteen per cent of the cost) the County Council would apply the balance of eighty five per cent. But it cannot be the case that statutory duty depends on a voluntary payment in order for it to be complied with.

21. For the County Council Mr. Finlay said that six hundred roads are in broadly comparable condition. It would be different if the Applicants' roads were uniquely bad . But limited resources have to be applied to competing claims. If Mandamus is granted all those will apply and the Court cannot order the allocation of funds.

22. Mr. Finlay said that this subsection is inconsistent with an absolute duty to maintain a public road. If there was an absolute duty, there would be no need for a provision of this kind.

23. In construing the section the Court should have regard to the financing of road works contracts. Section 27(1) of the Local Government Act, 1925 provides for the expenses of maintaining and constructing roads to be raised and defrayed out of the poor rate levied on specified areas according to the type of road. This was repealed by Section 7 of the

24. Act, 1929. It shows the close connection between the ratepayer and the road repairs.

25. Now the only provision for financing is Section 82 of the Road Act, 1993 which provides:-

26. This places the liability for financing of roadworks in the hands of the Minister for Local Government subject to the Minister for Finance. The obligation imposed in the Local Government Act, 1978 to make up for the abolition of rates turned out to be illusory.

27. Section 13(2) places an obligation to maintain roads on a County Council but subsection 5 places an obligation to consider the needs of all road users.

28. He referred to s 7(1) of Local Government Act 1991 which provides:-

29. But subsection (2) provides:-

30. Mr. Finlay submitted that the provisions of Section 7 of the Local Government Act, 1991 do not advance the matter either way. The nature of the duty imposed by Section 13 has to be construed from the Roads Act, 1993.

31. He relied on the dicta in R (Hewson) -v- Wicklow County Council

32. He said further at page 112

33. In the same case Kenny J. said at page 123

34. Mr. Finlay said he could not suggest it was impossible to repair the road but it could only be done at the expense of another stretch of road. Mandamus would give the Applicants priority over the remainder of the other six hundred similar roads.

35. If the effect of Mandamus would be to compel the Government to give greater funds, it would cost £40 million to do all the similar roads in order to avoid favouritism. It is a matter for the legislature to decide the priorities for road maintenance. This is an analogous to a claim by travellers against a local authority requiring it to provide hardtop sites for caravans (see O'Reilly -v- Limerick Corporation 1989 I.L.R.M. 181).

36. In relation to the courthouses, Hoey -v- Minister for Justice (1994) I.L.R.M. 334) the statutory provisions are very particular. There is an absolutely clear obligation imposed on the local authority and on the Minister. But there is no equivalent section in the Roads Act, 1993.

37. The duty must be construed in conjunction with financial resources available and must apply to all roads and all road users. The County Council must make appropriate use of the available resources to do those duties. It is inappropriate to grant Mandamus. It would give priority to the Applicants over six hundred other roads in broadly similar condition. It is not within the power of Cavan County Council to require Central Government to provide more funds. If Mandamus is granted on the assumption of an increase in funds, it is inappropriate to grant it because it is distributive justice.

38. In reply Mr. McDowell submitted that R (Hewson) -v- Wicklow County Council depended on the facts and the particular background of that case. A statutory limit made it impossible legally to comply. It is not authority for the impecuniosity argument. Whereas in R (Westropp) -v- Clare County Council the decision was that Mandamus was the appropriate remedy for non-performance of statutory works. It is just as much alive today as it was then.

39. Where there is a clear statutory duty to maintain a road, failure to do so is not excused by a balancing process as provided in Section 7(1) of the Local Government Act, 1991 because Section 7(2) directs the Local Authority to perform its mandatory functions.

40. He said the Applicants are invoking the only remedy the Oireachtas has laid down. They are not complaining they have been unreasonably treated. Their case is that a statutory duty is not being complied with and their only remedy is Mandamus. It is not necessary that they show that the County Council acted unreasonably. The Hoey decision makes it clear that the criteria of reasonableness does not apply. The statutory duty to repair and maintain courthouses under the 1935 Act had a mechanism whereby the Minister for Justice backed up the statutory duty. The Applicants case is more analogous with the Hoey case than with the O'Reilly case.

41. In my opinion in the legislative labyrinth which starts with the Local Government (Ireland) Act, 1898, the statutory duty imposed on a local authority to repair and maintain roads within its area has remained constant. Section 13 of the Roads Act, 1993 subsections (1) and (2) must in my view be interpreted as not only giving a power but also imposing a duty/obligation to repair and maintain roads. At no stage was that statutory obligation of a local authority altered or lessened by reference to the money made available by Central Government. In fact the obligation of a local authority to perform functions which it is required by law to perform is reiterated in Section 7(2) of the Local Government Act, 1991. The reference in Section 7(1) to the obligation to have regard to resources available is subject to subsection 2.

42. The same obligation is repeated in Section 13(3) of the Roads Act, 1993.

43. The Oireachtas having imposed and continued a statutory obligation on a local authority to maintain roads, must, as long as that obligation remains unqualified, make it possible for the Local Authorities to perform its statutory duties. Pre-1978 the Local Authority would have had to increase its rate to discharge its obligations. But since the elimination of a broad based rating system it is no longer possible for a County Council to do this. The Central Fund therefore must make up the shortfall. This is not a case of telling the government how it must spend money. It is a case of the Oireachtas having imposed a statutory duty on local authorities, being required to provide the means of carrying out that duty.

44. Mandamus is the appropriate remedy (see R (Westropp) -v- Clare County Council 1904 2 I.R. 4 2 I.R. 569. Hoey -v- the Minister for Justice 1994 I.L.R.M. 334 is analogous.

45. It is not impossible for the County Council to carry out its statutory duties vis-à-vis the Applicants. The objection raised by the County Council is that the Applicants will get precedence over other similarly disadvantaged residents in County Cavan. That may well be so. But the fact is that they have applied to the Court for relief and they are entitled to it. The flood gates are a problem for another day unless the statutory duties are amended.

46. In my opinion there are no discretionary grounds which would warrant refusing the relief sought. Accordingly, an Order of Mandamus will issue.