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Harty v. Limerick County Council [1999] IEHC 137 (23rd March, 1999)
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[1999] IEHC 137
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Harty v. Limerick County Council [1999] IEHC 137 (23rd March, 1999)
THE
HIGH COURT
1998
No. 484 JR
BETWEEN
PATRICK
HARTY EDWARD HARTY AND JAMES HARTY
APPLICANTS
AND
THE
COUNTY COUNCIL OF THE COUNTY OF LIMERICK
RESPONDENT
AND
IRISH
CEMENT LIMITED
NOTICE
PARTY
EX
TEMPORE JUDGMENT of Mr Justice Smyth delivered the 23rd day of March, 1999.
HISTORY
OF LITIGATION
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.
THE
SUBMISSIONS
3. The
submissions of the Applicants were:-
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.
4. The
Respondent's submissions were:-
(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.
FINDINGS
6. I
find as a fact or as agreed in evidence very briefly as follows:-
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.
CONCLUSION
8. I
discharge the effect and order of O'Sullivan J. and dismiss the application.
Footnote
to judgment
The
Circuit Appeal.
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.)
© 1999 Irish High Court