1. In
these proceedings the Applicant seeks an order for Judicial Review having been
granted leave by Mr. Justice Kelly on the 16th July 1999 to seek the relief of
a Declaration and injunctions. The particular relief sought is a Declaration
that the continuing detention of the Applicant’s horses by the Respondent
its servants and agents is unlawful, an injunction directing the Respondent to
release his horses, an injunction restraining the Respondent from the disposing
of the Applicant’s horses and an injunction restraining the Respondent
from seizing the Applicant’s horses until such time as it is in a
position to comply with all relevant statutory regulations and enactments and
in particular the provisions of section 3 of the Control of Horses Act 1996.
The grounds upon which the Applicant seeks the various items of relief are:-
2. The
Applicant is a member of the travelling community and married to Kathleen
Mongan. For many generations the Mongan family have reared and traded in
horses. The Applicant was brought up with horses and claims that they have
always been part of his life. He states that he started buying horses
approximately 12 years ago. He says he always wanted to bring-up his children
with horses because he loves horses and because it keeps them out of trouble
and he wants to continue the traveller traditions and culture which has always
been to have a close relationship with horses. He states that he has the
highest number of horses now that he has ever had. He complains that 13 of his
horses were seized by the Respondent including a mare which had recently
foaled. He states he has 3 further horses at home. The Applicant states that
he asked the Respondent to take a foal of the mare to Kilkenny, otherwise the
foal may have died. The Applicant has frankly admitted that his horses have
been seized by the Respondent on numerous occasions since the coming into full
operation of the Control of Horses Act 1996 and bye-laws made thereunder. He
states that various horses had been seized on 5 different occasions since April
1998. He states that he had to borrow over £1,000.00 for fines in order
to retrieve his horses.
3. The
Applicant states that he is aware that under the provisions of the Control of
Horses Act, 1996 and bye-laws enacted on foot of this Act he must have a
suitable accommodation for his horses. He says that since the Act came into
operation he was aware that bye-laws would shortly be enacted which would
compel him to provide certain accommodation and care for his horses. He states
that he cares for his horses as best he can, but he had not been able to rent
land or stables in which to keep his horses. He states that he has a large
family and lives on the money that he gets from the Department of Social
Welfare and while he could borrow money he has been unable to rent land for his
horses.
4. Mr.
Mongan states that when the Act came into operation he instructed his
solicitors to contact the Respondent and ask them what steps he would have to
take in order to obtain licences for his horses. He states that his basic
problem is that he has to obtain a suitable quantity of land on which to keep
his horses and that this he has been unable to do. He has sought to rent land
from the Respondent without success. He states that he has placed
advertisements in the local newspaper but again without success. He says that
he has approached the Department of Agriculture and food asking it to consider
setting up a horse project for travellers in the Clondalkin area, but the
Department has refused to do this. He states that he has been making these
strenuous efforts because he has always been aware that if he did not resolve
matters, the Respondent could seize and eventually dispose of his horses. He
states that he is presently living in a field on Lynch’s Lane in
Clondalkin. He states that he has been negotiating with South Dublin County
Council for many years to provide him and his family with suitable
accommodation without success. Neither has he had success with the Respondent
in relation to his horses. He complains that the Respondent tried to move him
and his family on to a halting site in Lynch’s Lane in Clondakin and that
he had to issue High Court proceedings to prevent them from doing so because
the facilities on this site were not suitable for human habitation. Since that
time, which was in 1995, he and his family having been living in a field on
Lynch’s Lane and he has received no suitable offer of accommodation for
his family and himself from the Respondent. He understands that he cannot
insist that the Respondent provide him with accommodation for his horses, but
he hoped that it would accept that the traveller community has a very strong
tradition and culture involving horses and that this could be taken into
consideration when considering their particular circumstances.
5. The
Applicant complains that at 5.30 a.m. on Wednesday the 14th of July 1999 he was
awoken by the sound of dogs barking. He saw two Gardaí and saw that his
horses were being seized. He states that nobody approached him and he was not
told where his horses were being taken. Following previous seizures the horses
had been taken to a pound in Saggart in County Dublin. On this occasion he
drove to Saggart but found the horses were not there. He then went to the
Respondent’s offices in Tallaght and subsequently learned that his 13
horses had been taken to a pound in Kilkenny. He states that he negotiated
with Mr. Larry Kelly of the Respondent that day and he was told that if he paid
a fine of £2,521.20 on the 14th of July 1999 that the Respondent would
return the horses to him and would not take any further action, provided that
he moved the horses from the South Dublin County Council area prior to the 8th
of August 1999. He states that following subsequent negotiations on the 15th
of July 1999 he was told that the Respondent would not take any further action
in relation to disposal of his horses prior to close of business on Friday 16th
July 1999. He received an undertaking in writing in these terms. He states
that his understanding is that unless he paid a total of £2,521.20 by the
close of business on Friday the 16th of July that his horses would be disposed
of. He states that in the past the Respondent has disposed of horses by
selling them to individuals in England. He says he is not sure what happens to
them then but he presumes that they are destroyed. The Applicant complains
that when his horses were seized that he was not served with any notice of
seizure or detention. He complains that the Respondent is not interested in
the welfare of his horses. He states that all it wants from him is that he
removes his horses out of its area. He says that he himself has been evicted
on may occasions by the Respondent and believes now that it is adopting the
same attitude towards his horses, that it had previously adopted towards him,
namely that it does not care where he goes or what he does as long as he is out
of its administrative area.
6. On
behalf of the Respondent an affidavit has been sworn by Laurence Kelly who is
an Administrative Officer. He agrees that Mr. Mongan has previously had his
horses seized by the Respondent. He states that since April 1998, and prior to
the seizure of the horses the subject matter these proceedings, 25 of the
Applicants horses were seized and detained by the Respondent. It is stated
that on each occasion Mr. Mongan approached the Respondent he paid the
requisite fine to recover the horses and gave a sworn undertaking that the
seized horses, when recovered by him, would be accommodated on lands procured
by him. Despite these sworn undertakings, some of which are in fact statutory
undertakings, given by Mr. Mongan, some of the horses reappeared subsequently
on lands within the Respondent’s administrative area and had to be seized
because Mr. Mongan was again in breach of the bye-laws. On this basis it is
deposed by Laurence Kelly that it is clear that these undertakings were given
by the Applicant simply to get his horses released.
7. Mr.
Kelly agrees that there has been a long history in relation to the question of
accommodation of the Mongan family. In 1995 the Applicant and his wife
instituted proceedings in the High Court seeking a Judicial Review in respect
of a notice requiring them to move into a halting site at Lynch’s Lane in
Clondalkin. They successful claimed in these proceedings that the halting site
was not suitable. At this time the Mongan family was offered alternative
suitable accommodation at Kishogue permanent site which was a half mile from
where the family was residing at the time. Mr. Kelly states that this offer of
suitable alternative accommodation was rejected out of hand by Mr and Mrs.
Mongan and they refused to move from the unauthorised site which they occupied.
Notwithstanding this, the Applicant and his wife have refused to move and
remain residing at Lynch’s Lane to the present time.
8. Mr.
Kelly refers to the report of the Task Force Report on the Travelling Community
of July 1995 in which under the general heading of Traveller Economy it is
stated:-
9. Mr
Kelly refers to the events of the 14th of July 1999 where a round up of horses
was carried out by the Respondent in relation to horses which were suspected of
being unlicensed. It is stated that 13 horses were seized and transported to
the pound at Urlingford in County Kilkenny. The reason the Applicant was not
approached was stated to be because the identity of the horse owner could not
be determined until each horse was scanned and this scanning took place at the
pound in Urlingford. Mr. Mongan was identified as the owner. A meeting took
place on the afternoon of the 14th of July 1999 where Mr. Kelly was in
attendance with Aisling Glennon, Clerical Officer of the Respondent and the
Applicant. Also in attendance were Ms. Sandra Mullen and Ms. Grainne
O’Toole both of the Clondalkin Travellers Development Group. Mr. Kelly
states that at that meeting he informed the Applicant of the fee to be paid
before the horses could be released. He states that he indicated to the
Applicant that because of the number of horses required to be removed from the
pound, the Applicant could take two days over which he could arrange for the
removal of the horses and that no fee would be charged for those two days. Mr.
Mongan indicated that he would remove the horses on the following two days,
namely Thursday and Friday the 15th and 16th of July 1999. Mr. Kelly states
that he informed the Applicant that if he got suitable land or facilities
within the South Dublin County Council administrative area that he could apply
for licences for the horses. It is stated that the Applicant indicated that he
would be placing the horses on lands at Balgaddy, Clondalkin and it was clearly
indicate to him that if the horses reappeared in the South Dublin
administrative area without proper facilities and accommodation there was a
risk the horses could be impounded again. It is stated that following this
discussion, Mr. Mongan said that he would pay the fees as outlined but
requested a period of three weeks in which to make alternative arrangements for
the horses. Mr. Kelly states that he indicated to the Applicant that he would
be permitted to maintain the horses until the 8th of August 1999, so that he
could make alternative arrangements for his horses. Mr. Kelly says that a
written undertaking to this effect was given to him which was witnessed by
Ms.Glennon, Ms. Mullen and Ms. O’Toole.
10. In
addition to the undertaking given by Mr. Kelly to the Applicant, Mr. Mongan,
the Applicant also signed an undertaking to the effect that he undertook to
make arrangements to move his horses out of the South Dublin County Council
area by the 8th of August 1999. The Council undertook not to remove the
Applicant’s horses from his land on or on before that date. Mr. Kelly
denies at any stage whatsoever did he and or any other official at that meeting
tell the Applicant that his horses would be sold or destroyed. He states that
the Applicant is well aware of the procedures involved in the impounding and
disposal of horses. Before an impounded horse is considered for disposal or
destruction, a notice to this effect is served on the owner, if know. This
Notice is to the effect that the Council intends to sell or dispose of the
horse after a certain period unless claimed by the owner. It is stated that no
such notice was either served or contemplated in respect of the
Applicant’s 13 horses seized on the 14th of July 1999. Mr. Kelly
continues that in particular, as to his understanding, agreement had been
reached with regard to the recovery by the Applicant of his horses, the
question of sale or destruction did not arise in this instance. Mr. Kelly
finally states that from the behaviour of the Applicant over the past year in
relation to the failure to properly accommodate his horses and his seeking an
injunction in respect of the 13 horses seized on the 14th July 1999, despite
the fact that agreements had been entered into in relation to the retrieval by
the Applicant of his horses, that the Applicant has no intention whatsoever of
abiding by the Bye-Laws in force at the moment nor has he any intention of
providing suitable accommodation and facilities for his horses.
11. Insofar
as the Applicant has had the horses in question returned to him, the only
matter outstanding in these proceedings is the determination of the lawfulness
of the acts of the Council, the issue of damages and costs. It is complained
that amongst the horses seized were foals and pursuant to section 19 (1) (i)
foals are exempt from the licensing requirement. It is submitted accordingly
that the seizure and detention of the foals was without any lawful authority.
It is submitted further that pursuant to section 37 of the Control of Horses
Act of 1996, an authorised person is authorised to seize and detain horses. It
is submitted by reference to section 3 that these powers may be exercised
within the functional area of the appointing Local Authority. It is pointed
out that section 3 also allows for an ‘authorised person’ to act in
the area of another Local Authority where on in inter-local authority agreement
exists.
12. It
is the Applicant’s contention that the authorised persons who seized and
detained his horses, took them out of the function area and to a pound in
Kilkenny. It is submitted that in this case they purported to exercise their
functions outside the functional area, where no inter-local authority agreement
exists. Based upon these facts it is submitted that the actions of those
parties in moving and detaining the horses to Kilkenny was without lawful
authority. It is further submitted that the continued detention of the horses
at Kilkenny by an ‘authorised person’ was without any lawful
authority. Insofar as the Respondent relies on section 37 (3) which states
that a horse seized may be detained in the pound anywhere, it is submitted that
it is implicit that section 37 (3) is referring to the exercise of the powers
of detention by an ‘authorised person’ and accordingly it is
delimited by reference to section 3. It is further submitted in respect of
horses detained under section 37 that the Respondent had power under section 39
(1) (d) to deal with the horses pursuant to its bye-laws. It is submitted that
the Respondent choose to ignore its own bye-laws. Reference is made to bye-law
6 which contains a mandatory rule in relation to the detention of horses. It
is submitted that this bye-law at paragraph (a) requires service of a Form 1 on
the owner, where known, as soon as possible. It is stated that the form on the
face gives a five day notice of intention to dispose of the horse in default of
compliance with the Notice. Bye-Law 6(g) deals with the actual disposal. It
is submitted that the Respondent threatened to take steps to dispose of the
horses, without serving this Form 1 and within a period less that the mandatory
prescribed notice-period of five days. Insofar as the Respondent seeks to rely
on section 40 of the Act in respect of any particular horse, it is submitted
that it has not complied with the provisions of this section. It is further
complained on behalf of the Applicant that the Respondent sought fees and
expenses from the Applicant in a manner not authorised by the bye-laws in
particular bye-law 6(d). It was further submitted that insofar as the
Respondent may have a general power, independent of the power vested in
authorised persons, to deal with the detention and disposal of horses detained
under section 37, that power is to be found in section 39 subsection 4. It is
submitted that section 39 (4) does not authorise the detention of horses
outside its function area. It is submitted that the entire tenor of the Act is
that functions are discharged within the functional area, save where specific
inter-local authority agreements exist. It is further submitted on behalf of
the Applicant that the exercise of powers under section 39 (4) require in the
first instance a lawful seizure and lawful detention and in the second instance
compliance by the Respondent with its own bye-laws. The Applicant contends
that the actions of the Respondent were tortious in that they involved a
trespass to his chattels and detinue. It is submitted on behalf of the
Applicant by Mr Ó Dúlacháin of Counsel that the Act in
question must be interpreted in a strict fashion and in a manner least
restrictive to the individual rights of the Applicant.
13. With
reference to the alleged tortious action of the Respondent it is submitted by
Mr. Ó Dúlacháin by reference to the decision of the High
Court in the case of Patrick J. Farrell, -v- The Minister for Agriculture and
Food, (unreported) High Court 11th October 1995 in a judgment delivered Miss
Justice Carroll where at page 19 of her judgment the learned High Court judge
in reference to the tort of trespass
quoted
with approval from the text on torts second edition by McMahon and Binchy, that
tresspass must be forcible and direct, not consequential. The learned authors
point out that
where
precisely the line is to be drawn between direct and indirect interference is
not easy to say.
14. Carroll
J states that the tort consists of wrongfully and directly interfering with the
possession of chattels. It is submitted on behalf of the Applicant that there
was no statutory immunity from tort given by the Act in question in favour of
the Respondent. With regard to the undertakings alleged to have been given by
the Applicant it is submitted that the Applicant was at all times someone who
was illiterate. It is queried whether the Local Authority had power to levy
the charge in question upon the Applicant. While the Applicant’s horses
were in fact released without any charges in fact having been paid, what is in
issue in these proceedings is an interpretation of the Act in assessment of the
actions of the Respondent in July of 1999.
15. On
behalf of the Respondent it is submitted that the Applicant knew that the
horses were not going to be disposed of by reason of the agreement entered into
by him with the Respondent. Reliance is placed by the Respondent on the
behaviour of the Applicant. With regard to the points made on behalf of the
Applicant it is submitted that only one foal was in question in these
proceedings. With regard to the power to hold animals in a place other than
within the function area of the Respondent it is submitted, having regards to
the provisions of section 37 (3), that these can be held anywhere within the
State. In this regard it is submitted that there is no limitation to the
power being exercise within the functional area of the Respondent. It is
submitted that the various sections of Act must be read together such as to
show that in the first place, the Respondent authority had:-
16. It
is submitted that with regard to the agreement necessary to be reached with
other Local Authorities that this relates to the seizure function set forth in
the Act. It is submitted that the impounding can be done anywhere. It is
submitted in regard to the service of Notice, that even if there was a
technical breach in this regard it was overcome by the negotiations which took
place between the Applicant and the Respondent. It is submitted by counsel
that the Respondent treated the Applicant very fairly and that this is borne
out by the affidavit of Mr. Kelly. While the Applicant relies upon a threat to
dispose of his animals the Respondent relies upon the fact that this is
controverted by Mr. Kelly. With regard to the general principals of law relied
upon by the Applicant it is submitted that even if the Act in question are
construed strictly that the appearance in the section of the word “
anywhere”
when applied strictly cannot be construed as meaning anywhere within the
functional area of the Respondent. It is submitted that the Control of Horses
Act 1996 balanced the rights of a Local Authority on the one hand and the owner
of horses on the other hand and that these rights are in no way absolute. The
Respondent places reliance upon the fact that the Applicant concedes that that
he has unlicenced horses. It is submitted on behalf of the Respondent that no
arbitrary power was exercised by the Local Authority and that no tortious
action was perpetrated by the Council. Furthermore it was submitted that there
was no evidence of any damages having been sustained by the Applicant and no
case of damage has in fact been made out by him or on his behalf. With regard
further to the relief sought it is submitted these are items of discretionary
relief. Reliance is placed upon the fact that the Applicant went to the
Respondent at its offices and this is not a case where the Council went to the
Applicant in the first place. It is further submitted that the fees had to
paid before the horses were released. Again it is submitted that the functions
of an authorised officer under section 3 are not limited to seizure. In the
circumstances it is submitted that the Applicant is not entitled to the relief
which he seeks in these proceedings.
17. With
regard to the fees arising in this case, it is clear from a reading of section
39 (2) of the Act that fees to be paid by the owner or keeper of such horses
including fees in respect of their keep, any veterinary services any
transportation may be provided for in bye-laws.
“
In relation to horses detained within its functional area under section
37”.
18. It
is clear from the facts of this case the horses in question were not detained
within the functional area of the Respondent Council. Accordingly the bye-laws
in question made by the Respondent simply relate to such horses as are in fact
detained within its functional area. On the other hand bye-laws may have been
made by Kilkenny County Council relating to the detention of horses within its
the functional area in circumstances where they were detained outside of the
Respondent’s functional area. Accordingly I am of the opinion that
certain of the charges levied by the Respondent are in excess of those which
may be imposed by it on the Applicant in circumstances where it has not be
shown that these charges are in accordance with bye-laws made by Kilkenny
County Council as the horses were held within its functional area.
19. In
conclusion this Court must refuse the Applicant the essential relief which he
seeks. While the Applicant has referred to the traditions of the Traveller
Community in Ireland and in this regard has indicated his wish to bring his
children up with horses because of his love for horses, because it keeps them
out of trouble and wishes to continue the Traveller traditions and culture,
which he states has always been to have a close relationship with horses, it is
important for the Applicant and any other member of the Travelling Community to
realise that changes have been affected in the law by the Control of Horses
Act, 1996 and notwithstanding his wishes to maintain traditions and culture
that these traditions and culture can only be maintained within the terms of
the law. This is as set out of the Control of Horses Act, 1996 and bye-laws
made under the provisions of that Act. Nevertheless, it is hoped that the
Respondent may be in a position to assist the Applicant and other members of
the Travelling Community to maintain their traditions and culture within
reasonable limits.