BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McDonagh v. Clare County Council [2002] IEHC 78 (19 July 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/78.html
Cite as: [2002] IEHC 78, [2003] 1 ILRM 36
[New search] [Printable RTF version] [Help]
McDonagh v. Clare County Council [2002] IEHC 78 (19 July 2002)
    THE HIGH COURT
    JUDICIAL REVIEW
    2002 No. 86 JR
    BETWEEN
    OWEN McDONAGH AND THOMAS McDONAGH
    APPLICANTS
    AND
    COUNTY COUNCIL OF THE COUNTY OF CLARE
    RESPONDENT
    JUDGMENT of O’Sullivan J. delivered the 19th of July, 2002.
    INTRODUCTION
    1.      The applicants are brothers and members of the travelling community. They seek various orders by way of judicial review against the respondent who is the housing authority for County Clare.
    THE FACTS
    2.      Owen McDonagh says that he lived most of his life in County Clare but with interruptions. After he married in June, 1988 he moved around Ireland but returned to County Clare. From 1991 to the present he has spent extended periods of time in County Clare mainly in the Shannon area. He accepts he would have left for short periods during that period. Following litigation in 1991 a temporary halting site with temporary facilities was provided by the respondent for the McDonagh clan including himself and his brother. Some members (not the applicants) of the clan were provided with a permanent halting site in September, 2000. In 1992 he placed his name in the County Clare housing list and has never removed it. He says he was never offered a permanent halting bay and so far as he is aware there are no transient halting sites available in County Clare. Having pleaded guilty in 1999 to committing criminal damage he was precluded by court order from residing within a 10 mile radius of Shannon for two years. He complied with that order and returned in August, 2001 and has since then resided on a disused roadway at Carygoran, Newmarket-on-Fergus, County Clare. The respondents brought proceedings to remove him and an order was made in December, 2001 to that effect. There were subsequent proceedings for attachment and committal and an appeal from the order: eventually the matter was adjourned on the 6th February, 2002 when he moved to his present location which I am informed is also on the side of the road in County Clare where he now resides with his wife and children.
    3.      Thomas McDonagh agrees with the foregoing affidavit of his brother. His family moved to County Clare around 1977; he travelled around the county for the next 14 years apart from times when he was evicted from the county. Since 1991 he says he spent extended periods of time in County Clare, mainly in the Shannon area. During most of these periods his children have attended St. Senan’s National School in Shannon, County Clare: at present they go to Newmarket-on-Fergus National School. He is unemployed and is now living in a caravan with his wife and five youngest children. He says that he too placed his name on the County Clare housing list in 1992 and never removed it from the list. He has never been provided with permanent accommodation. He says that since 1991 he did spend periods of time in England and other places but spent more time in Shannon and/or County Clare than elsewhere.
    4.      The details particularly in relation to residence in the foregoing affidavits were vague.
    5.      An affidavit was sworn on behalf of the respondent by Madeleine McCarthy who was an Administrative Officer of the Traveller Accommodation Unit of the respondent and contains a little more precision.
    6.      There is no reference to Owen McDonagh in a census of May, 1991, the first record of his household being November 1993, repeated in 1994, 1995, 1997 and 1998 but not in 1996, 1999 or 2000. The first record of Tom McDonagh’s family is in November, 1993, repeated in 1994, 1996, 1997 but not in 1995, 1999 or 2000. She says that Owen McDonagh was resident in County Clare for cumulative periods of around seven months in all in the three years immediately preceding the date of adoption of a Traveller Accommodation Programme by Clare County Council which was adopted on the 14th February 2000. This was based on a census carried out on the 31st March, 1999. (In the three year period immediately preceding that date he was only resident in County Clare for a cumulative period of eight months in all, of which the longest was of five months duration). With regard to Tom McDonagh, he was resident in County Clare for a cumulative period of seven months in all during the three months immediately preceding the adoption of the Traveller Accommodation Programme namely preceding the 14th February, 2000. He has been resident in County Clare since August, 2001 when he moved his temporary dwelling to lands at Carygoran, Newmarket-on-Fergus, County Clare. She says that the respondent has no record of any application for housing accommodation by Owen McDonagh but that the respondent was informed in August, 1996 he was moving to Ballybofey, County Donegal and would not be returning to Shannon and would not therefore require accommodation in the area. He applied to Mayo County Council for a house in July, 2001.
    7.      She says that the respondents do have a record of an application from Tom McDonagh for housing in February 1992 and further says that he submitted an application on the 5th December, 2001 which is still under consideration. She says that at the time of swearing her affidavit he had left the functional area of the local authority and the respondent is awaiting reports in relation to the application. She further says that Owen McDonagh’s accommodation needs will be included by the respondent in the next assessment of accommodation needs in County Clare. Any application by him for accommodation will be examined on its own merits having regard to all the circumstances at the time.
    THE TRAVELLER ACCOMMODATION PROGRAMME
    8.      This was adopted on the 14th February, 2000. It was based on a census which took place on the 31st March, 1999. That census established that 53 indigenous traveller families were in immediate need of permanent accommodation. In addition eight transient traveller households were located in the respondent’s functional area. Cognisance was also taken of projected traveller population increase over the following five years. It was envisaged that additional transient sites may be deemed necessary.
    9.      The Traveller Accommodation Programme decided initially that eleven permanent and two transient sites would be required and the respondent proposed a tentative time scale for the phasing in of this programme. In addition an urgent need for emergency halting sites was recognised to accommodate families at present on the roadside.
    10.      The programme policy is to provide permanent accommodation only for indigenous traveller households which means households which had been permanently resident in the county for at least three years prior to February, 2000. Considerable resources have been made available to fund this programme. This accommodation issue has been a complex and contentious issue in County Clare during recent years and the efforts of the respondent has to some degree been frustrated by the actions of both the settled and travelling communities.
    11.      To date the steps taken by the respondent to implement the Traveller Accommodation Programme comprise eight families accommodated in a permanent halting site in Ballymurtagh, three in standard local authority housing, six families assisted to acquire their own houses and eight families accommodated in temporary emergency site accommodation since March, 2002. Tenders have been invited for the construction of a six unit complex for six families.
    12.      As soon as the permanent halting sites contemplated by the Traveller Accommodation Programme are in place the respondent will proceed to construct the two transient sites. The words “permanent” and “transient” refer to the period of occupancy of the travellers. It is the policy of the respondent with regard to the permanent sites that only indigenous travellers will qualify for consideration.
    13.      To sum up: at the time of the census neither applicant was in Clare and was not counted. They were considered, however, in the sense that their category was provided for by reference to the traveller trends. They will be included in the next assessment of needs if they are resident in the county at the time of the assessment.
    14.      There is an application for permanent standard housing from Tom McDonagh which is still under consideration. There is no record of an application from Owen McDonagh.
    15.      The policy of the respondent with regard to the permanent halting sites is to consider only indigenous travellers and neither applicants qualify in this category. At present the implementation of the traveller accommodation programme prioritises the permanent sites (for which the applicants do not apply) and there are no temporary halting sites (for which they do qualify).
    16.      The respondent will continue to consider the applicant’s accommodation needs in the course of ongoing implementation and review of their Traveller Accommodation Programme.
    THE CLAIM
    17.      By order of McKechnie J. of the 18th February, 2002 the applicants claim as follows:
    1. An order of mandamus directing the respondents to provide suitable accommodation (including emergency accommodation);
    2. A declaration that the respondent has a statutory duty to provide such accommodation for the applicants who are homeless and members of the travelling community;
    3. A declaration that the respondent in breaching such statutory duty has failed to vindicate and has infringed the constitutional rights to bodily integrity and health of the applicants;
    4. Certiorari quashing a decision of the respondents that the applicants have not been resident in County Clare for three years and therefore do not qualify for accommodation under their programme;
    5. A declaration that the policy of providing only for the county’s indigenous travelling community is ultra vires;
    6. A declaration that such policy unfairly discriminates against the applicants in breach of their constitutional right to equality of treatment;
    7. A similar declaration that such policy is in breach of the applicants’ constitutional rights to bodily integrity and not to have their health endangered; and
    8. Damages for breach of statutory duty.
    THE SUBMISSIONS
    18.      A number of preliminary points were taken by Mr. Connolly SC on behalf of the respondents and I propose first of all to deal with these.
    19.      1. He submitted that the application was out of time. The proceedings commenced on the 8th February, 2002. They challenged the introduction of the indigenous policy into the Traveller Accommodation Programme (“TAP”) in February, 2000. They are well out of time by reference to Order 84 of the Rules of the Superior Courts.
    20.      Mr. McCullough SC for the applicants submits that the relevant decision in this case was not the “decision” of the respondents to introduce the indigenous policy into the TAP but rather the decision of the respondents that must have been taken prior to its Solicitor’s letter of the 2nd January, 2002 indicating its rejection of the applicants claims to be indigenous and therefore qualified to apply for permanent halting site accommodation. This decision must have been made after the 20th December, 2001 to which the former letter was a reply and accordingly the proceedings were brought within time. Mr. McCullough further submits that it would be unreal to expect persons such as the applicants to challenge the introduction of the indigenous policy into the TAP at the time of its publication. He further submits that the respondents cannot have it both ways: they cannot argue that there is no decision (in support of a contention that there is no judicial review of a policy in the absence of a specific decision) on the one hand, and on the other that the applicants are out of time by reference to a decision to refuse eligibility to apply for permanent accommodation.
    21.      I take the view that the letter of the 2nd January, 2002 has arisen because of a decision in relation to the application of the applicants contained in the letter under reply which inter alia said
    “Our clients have no water or sanitary facilities and are existing purely and simply on their own devices with no assistance from the County Council. Both of our clients have families, including infant children. We are sure you will agree that their current predicament is serious and in urgent need of resolution.
    We formally call upon you to address this situation as a matter of urgency and to revert to us with your immediate proposals for the housing of our clients.”
    22.      This request for an urgent response is nonetheless such a request because it arose in the context of ongoing litigation between the parties whereby the respondent was seeking to remove the applicants from an unauthorised site, had procured a court order to that effect and had indeed brought contempt proceedings for breach thereof by the applicants.
    23.      If I am incorrect in my view that the said letter is founded on a decision then I consider that there is good reason for extending the relevant period up to the time of the actual making of the application to court. The good reason is that it is not reasonable to expect the applicants in their situation to have become aware of the indigenous policy which they now, inter alia, seek to challenge prior to the said respondent’s solicitor’s letter.
    DISCRETION
    24.      Mr. Connolly SC submits that relief should be refused to the applicants in any event because the evidence shows that they have resided elsewhere frequently and persistently over the past number of years, and specifically over the three years preceding the introduction of the TAP; neither of them have applied for a halting site and indeed one, Owen McDonagh, applied to Mayo County Council for a council house in July, 2001. (He was refused apparently, also, on the basis that he did not satisfy an indigenous test).
    25.      One of the main issues which I will have to decide is whether the respondents are entitled to have an indigenous policy; if they are there will be a further question as to whether notwithstanding this, they must nonetheless entertain the specific application of the applicants for housing even if it is extremely unlikely that the application will be successful having regard to such a policy. It seems to me that it would be inappropriate, over and above these considerations, to take into account on a discretionary basis as a point against the applicants receiving relief the fact that they have in fact resided outside the respondents functional area during the previous three years. Either there is a duty or there is not: either that duty may be discharged by reference to a indigenous policy or it may not: it seems to me, a matter of statutory interpretation and application rather than discretion.
    26.      With regard to the point that neither applicants applied for halting site accommodation (Tom McDonagh applied for housing simpliciter in December, 2001 and February, 1992 and this application is under consideration by the respondent) it seems to me that the letters written on behalf of each on the 20th December, 2001 to which I have already referred constitute applications for whatever housing or assistance is appropriate. Furthermore in Mongan v. South Dublin County Council (Unreported, High Court, Barron J., 31st July, 1995) Barron J. said (p. 4)
    “It does seem to me that if names are not put on housing lists that it is very difficult both for those who seek the accommodation and for the authority to determine those for whom provisions should be made. I appreciate the problems that may exist in getting members of the traveller community to put their names upon a list but I have had evidence that there are annual assessments of the travellers in the area who require accommodation and it seems to me that there is nothing to prevent the local authority from automatically putting those persons on to a list.”
    27.      In light of this it seems that so far from being a point against the applicants that they had not applied for a particular kind of housing accommodation, it might be a point adverse to the respondents that they were not automatically included in some list - assuming, that is, that they are in a category which would entitle them to such listing: I do not think I should take this point into account against the applicants as a matter of discretion and rely on it to refuse them relief to which they might otherwise be entitled.
    28.      Nor do I think it a point against Thomas McDonagh that he applied for housing in County Mayo. It is something to be taken account in the overall picture. This overall picture includes the fact that he apparently communicated to an official of the respondent that he was moving to County Donegal in 1996 and told her that he would not be returning to Shannon and therefore would not require accommodation. These are matters which I must bear in mind when considering whether or not the respondent have discharged whatever duty they may have with regard to the applicants but I do not think that I should refuse relief as a matter of discretion on the basis of all or any of these considerations. A further preliminary point was made by Mr. Connolly SC to the effect that declaratory relief should only be sought by way of plenary summons where no other reliefs are or could be included in the application. I do not need to determine this point because in my view a decision was made and the application to court for certiorari thereof made within time. I do not understand any case to be made that the inclusion of declaratory relief is not appropriate in these circumstances.
    SUBSTANTIVE POINTS
    Indigenous policy
    29.      This refers to the following policy contained in the TAP:
    “It is the council’s policy to provide non transient accommodation only for the county’s indigenous travelling community. For this purpose the council will only regard a traveller household as “indigenous” where the household has been permanently resident in the county for at least three years.”
    30.      It was explained to me that the requirement of permanent residence was operated by the respondents with some discretion so that a traveller who had gone to England for a family wedding, for example, would not be regarded as having broken the three year permanent residency requirement.
    31.      Mr. McCullough SC submitted that there is no justification in the relevant statutory provisions for the inclusion of such an exclusion policy. He further says it is discriminatory in two senses: it means that a traveller who applies for accommodation in a permanent halting site will be required to satisfy this residency test whereas a member of the settled community who applies for permanent accommodation will not - this is discriminatory against travellers; furthermore there is discrimination between out-of-county travellers (which according to the respondent includes the applicants) as against travellers who satisfy this test and are therefore seen by the respondents as indigenous to County Clare.
    32.      Mr. Connolly SC submits that this policy is justified in particular by reference to the Supreme Court decision in McNamee v. Buncrana UDC [1983] I.R. 213.
    33.      I turn therefore to consider this latter decision.
    34.      It will be recalled that in an earlier case (McDonald v. Feely (Unreported, Supreme Court, 23rd July, 1980) the Supreme Court per O’Higgins C.J. had considered the obligations of the housing authority towards travellers. The applicant travellers in that case were living in dire circumstances but were admittedly trespassing on corporation property. A motion was passed by the councillors requiring the manager to move them on. This he sought to do but the plaintiffs brought an injunction to prevent him. They obtained such an injunction in the High Court from Barrington J. The corporation appealed. Before the hearing of the appeal the corporation had offered accommodation to the plaintiffs which the Supreme Court held in all the circumstances she could not refuse although she wished to because she was afraid of intimidation from another occupant of the site. In those circumstances the High Court injunction was discharged. In the course of delivering judgment O’Higgins C.J. said (at pp 8 - 11):
    “It does not seem to me to matter whether in fact the Plaintiff’s husband had been born in the County of Dublin and thereby qualified his family for housing by the County Council or whether the family had been over four years resident somewhere in the County or whether in fact they were not qualified - at least their housing needs deserved consideration and attention if a scheme of priorities paying due regard to the primary objectives laid down in Section 60(3) were effectively to be operated.
    Questions such as these could have arisen for decision had what was contemplated on the 14th May taken place.
    ... The important fact is that consideration was given to the provision of accommodation which might be adequate and suitable for the Plaintiff and her family. This was done ... the undoubted rights in law of the Defendants as owners of the site cannot be overlooked or ignored once it appears that they are been exercised properly and lawfully. These rights are now being properly exercised with such regard as is possible, in the circumstances, to the housing needs of the Plaintiff and her family. She cannot be accorded a right of veto over what is proposed merely because of the possibility of unlawful action by others.”
    35.      Counsel for the applicants relies in particular on the similarity of the facts in McDonald to the present case in so much as it appears from the above quotation that a traveller could only qualify for housing by the county council by being over four years resident somewhere in the county. Notwithstanding this the Chief Justice specified that at least their housing needs deserved consideration and attention and in that context it did not seem to him to matter whether or not the plaintiff’s husband or herself had qualified by reference to such a policy.
    36.      This case was misunderstood by local authorities who considered that it in fact determined that housing authorities had a duty to provide accommodation for people not resident within their jurisdiction. This latter issue came up for determination again by the Supreme Court in McNamee. In that case the housing authority had originally passed a housing scheme as required under the Housing Act, 1966 which contained a clause which stated that no preference was to be given to a person who had been resident in the town of Buncrana for a period less than two years. This clause was deleted and the policy passed without it. In the High Court Carroll J. analysed the Supreme Court decision in McDonald and ruled that the duty referred to therein by the Supreme Court relates to the functional area of the housing authority and further clarified that the Act of 1966 did not place a duty on a housing authority to have regard to the housing needs of persons living outside its functional area. She then went (p. 216) as follows
    “But Mrs. McDonald’s claim rested on the fact that she and her family were resident in the functional area and that, therefore, the housing authority owed a duty to them. All that was criticised in that judgment was the requirement that a birth qualification or residence for a specific length of time was necessary in order to qualify for consideration in relation to housing needs. Nowhere in that judgment can I find any basis for contending that the Chief Justice said that a housing authority is bound to house persons who are resident outside their functional area.”
    37.      With that judgment O’Higgins C.J. and the rest of the Supreme Court agreed. In the course of delivering the judgment of the Supreme Court O’Higgins C.J. said (at pp 219-220)
    “What I had in mind (and what, I hope, I conveyed in my judgment) was that irrespective of whatever scheme of priorities may from time to time be in operation, each housing authority must have regard to those who in fact at any particular time are in its functional area and are in need of housing. Even if such people cannot be housed under the existing programme and in accordance with present priorities, their existence and needs must be borne in mind for the future. It was not intended to suggest that a housing authority need not have regard, as a matter of priority, to those in its functional area who had been resident or domiciled there for a particular period of time.”
    38.      Mr. Connolly SC submits that this passage acknowledges the appropriateness of a residence policy in a housing accommodation scheme. Mr. McCullough submits that the opposite is true. He points to the fact that Carroll J. identified that in McDonald there was criticism of “the requirement that a birth qualification or residence for a specific length of time was necessary in order to qualify for consideration in relation to housing needs.”
    39.      O’Higgins C.J. when specifying that a housing authority must have regard to those who are in fact in its functional area did acknowledge that such people might not be housed under the existing programme and in accordance with present priorities but that nonetheless their existence and their needs must be borne in mind by the housing authority for the future. He further said that it was not intended (in McDonald) to suggest that a housing authority need not have regard as a matter of priority to those in its functional area who had been resident or domiciled there for a particular period of time.
    40.      Subsequent cases have emphasised that a housing authority is obliged to discharge its obligations (which include the making of an assessment of accommodation needs - including needs of travellers; the preparation of a plan to accommodate those needs which will be made inter alia in light of available resources; and the implementation of such a plan in accordance with such resources and in light of such complex and altering circumstances which apply) in a rational and coherent fashion. Furthermore it is clear that the accommodation needs which a housing authority will to a significant extent be constantly changing given that the duty is owed to travellers in the functional areas of housing authorities and the persons to whom such duty is owed or some of them at least are constantly moving by reason of their nomadic way of life. The plans and schemes of a housing authority in these circumstances must be not only rational and coherent but also flexible.
    41.      Again the cases have shown, and this present case is an example of it, that the implementation of specific plans for halting sites or other accommodation for travellers can produce hostility, litigation and delay. All of this must, I think, form part of the picture which the court takes into account when considering the discharge by a housing authority of its obligations in these circumstances. In McNamee the Chief Justice emphasised that a housing authority did have an obligation to have regard as a matter of priority to those in its functional area who had been resident or domiciled there for a particular period of time. When Carroll J. indicated that the birth qualification or residence for a specific length of time was criticised in McDonald I understand her to have been referring to the fact that the Chief Justice in McDonald had indicated that these policies by reference to which qualification for housing accommodation were to be established did not matter in the circumstances in which the plaintiff in that case found herself, namely that she lived in a caravan on a plot of ground at Templeogue with nine children who were going to school or training locally and she was threatened with eviction if necessary accompanied by Gardaí and bulldozers to move her caravan and belongings from the site without having an offer of an alternative accommodation of any kind from the housing authority. In those circumstances O’Higgins C.J. did not think the qualification policy mattered in determining that “at least their housing needs deserved consideration and attention if a scheme of priorities ... were effectively to be operated.”
    42.      My conclusion is that the incorporation of a residence or indigenous policy in a traveller accommodation programme is something within the statutory power of a housing authority but - and it is an important but - it must not be applied with the rigidity of a rule to such circumstances as, for example, Mrs. McDonald found herself in in May, 1980. Her housing needs deserved consideration and attention notwithstanding such a policy. To that extent such a policy was “criticised” - to use the phrase of Carroll J. in McNamee. But equally to use the phrase of O’Higgins C.J. in McNamee it was never intended (by the Supreme Court in McDonald) “to suggest that a housing authority need not have regard, as a matter of priority, to those in its functional area who had been resident or domiciled there for a particular period of time.”
    43.      In light of subsequent cases which emphasised that the carrying out of the duties by a housing authority must be done coherently and rationally it seems to me that the inclusion of a indigenous requirement - its precise provisions, length of the residency requirement and so on - is something to be left to the informed judgment of the housing authority and is within its statutory powers. The indigenous policy referred to above of the respondents in their TAP seems accordingly to be lawful.
    44.      But this does not end the matter: counsel for the applicants has relied on a number of well known Irish and UK cases to submit that even if such a policy is lawful it cannot be applied rigidly as an exclusionary rule or preliminary hurdle which bars a particular traveller family from having their application for accommodation considered and assessed if they fail to qualify by reference to it. Mr. McCullough submits that there was no proper consideration of the applicants’ claim for accommodation since that they were simply told in effect that they were not residents by reference to the indigenous policy and therefore would not be considered for accommodation in permanent halting sites. (The situation is that there are no transient halting sites available at present because the TAP requires the permanent halting sites to be built before transient halting sites). In this connection Mr. McCullough relies inter alia on the judgment of Keane J. (as he then was) in Carrigaline Community Television Broadcasting Company Ltd v. Minister for Transport Energy & Communications [1997] 1 I.L.R.M. 241 at 28) where he said:
    “In the case of this and similar licensing regimes, the adoption by the licensing authority of a policy could have the advantage of ensuring some degree of consistency in the operation of the regime, thus making less likely decisions that might be categorised as capricious or arbitrary. But it is also clear that inflexible adherence to such a policy may result in a countervailing injustice. The case law in both this jurisdiction and the United Kingdom illustrates the difficulties in balancing these competing values. The locus classicus of the law is the following passage in the judgment of Bankes LJ in R. v. Port of London Authority ex parte Kynock [1919] 1 KB 176 at p.184:
    “There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit, that if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule or come to a determination not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.”
    However, in British Oxygen Ltd v. Minister of Technology [1971] AC 610 Lord Reid, while approving of the passage just cited, said:
    “The circumstances in which discretion are exercised vary enormously and that passage cannot be applied literally in every case. The general rule is that anyone who has to exercise a statutory discretion must not shut his ears to an application (to adopt from Bankes LJ at p. 183). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument, reasonably presented, urging a change of policy. What the authority must not do is to refuse to listen at all. But a ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say - of course I do not mean to say that there need be an oral hearing.”
    45.      A little further on Keane J. (as he then was) appears to accept the lawfulness of a residence policy in a housing authority’s programme when he says (at p. 285)
    “While Kynock was not referred to in the judgments of the High Court or the Supreme Court, (in State McGeough v. Louth County Council) it is clear that the adoption of a policy by the relevant authority in relation to the granting of consents was not, of itself, seen as unlawful. A similar approach was adopted by O’Higgins CJ in McNamee v. Bundoran UDC where he declined to categorise as unlawful the policy of a housing authority of giving priority on the housing list to persons living within the functional area of the housing authority. On the other side of the line, Finlay P in In re N. a Solicitor set aside a decision of the Law Society to refuse an applicant a practising certificate on the ground that they had been unduly rigid in their application of a particular policy to the extent that their decision could be regarded as unjust.”
    46.      Keane J (as he then was) went on in Carrigaline to hold that the Minister had unduly fettered his discretion by foreclosing consideration of an application for a licence by reference to a rule that one form of retransmission alone would be permitted and that franchises would be granted for it to the exclusion of any other system. That was not a valid exercise of the power vested in the Minister. In O’Neill v. Minister for Agriculture and Food [1997] 2 I.L.R.M. 435) Keane J. (as he then was) again condemned a decision by the Minister on the basis that he unduly fettered his discretion by reference to inflexible adherence to a policy which effectively divided the country up in a way not contemplated by the relevant statutory provisions so that only one licence would be granted in each of the divisions. That again was an undue fettering of the Minister’s discretion.
    47.      In my opinion a residence or indigenous policy is a proper inclusion by a housing authority in its Traveller Accommodation Programme. But it must not be applied so rigidly that it becomes an effective bar to any consideration by the housing authority of an application for housing by a member of the traveller community. In its letter of the 2nd January, 2002 the respondent effectively did this. There was as I have held an application calling upon the respondent as housing authority “to address this situation as a matter of urgency.” The letter of the 2nd January, 2002 constitutes a refusal to consider the applicants for permanent traveller accommodation by reference, it is clear, to the indigenous policy.
    48.      This is not to say that the respondents were not entitled to take the view that the applicants were most unlikely to succeed if they were so considered. By refusing to consider the application at all, however, no matter how unpromising, they fell foul, in my opinion, of the principles enunciated by Bankes L.J. in R v. Port of London Authority ex parte Kynock and Lord Reid in British Oxygen Ltd v. Minister of Technology both of which were referred to with approval by Keane J. (as he then was) in the Carrigaline case. In particular it is worth re-quoting Lord Reid to the effect:-
    “What the authority must not do is to refuse to listen at all.”
    49.      That assertion was made notwithstanding the context where a local authority would have dealt with a multitude of applications and would almost certainly have evolved a policy so precise that it could well be called a rule.
    50.      Again Bankes L.J. saw a wide distinction between effectively telling an applicant that by reference to their policy it was most unlikely that the applicant would succeed unless there was something exceptional in his case on the one hand, and on the other, a case where the local authority determines by reference to their policy not even to entertain such an application. The line may be fine from the point of view of the local authority: but the authorities establish that “what the authority must not do is to refuse to listen at all.” In my view that is what the respondents have done in the present case.
    51.      The above conclusion would be sufficient, I think, to entitle the applicants to an order in effect directing the respondents to re-consider their application and in so doing not to exclude same in limine by reference to the indigenous policy notwithstanding that they may have regard to same.
    52.      Counsel for the applicants goes one step further. He seeks an order from the court directing the respondent to provide accommodation by reference to the fact that the respondent, he says, has failed in its duty to the applicants. He submits that the applicants qualify under four of ten categories of need identified in Section 9(2) of the Housing Act, 1988 which deals generally with housing assessments. They are, he submits, homeless persons to whom Section 13 applies (that is travellers), living in unfit accommodation and living in overcrowded accommodation. This entitles them to high priority. In light of the breach of the respondents he submits they are, therefore, now entitled to a declaration that they are entitled to be accommodated by the respondents and to an order directing the respondents to provide such accommodation.
    53.      In making this submission he relies on the constitutional rights of bodily integrity and not to have their health impaired which he says can be deployed by the court to inform its interpretation of the relevant statutory provisions. In this latter context he relies on the judgment of Costello J (as he then was) in O’Brien v. Wicklow (Unreported, High Court, 10th June, 1994) and in particular on the following extract from page 4
    “If statutory powers are given to assist in the realisation of constitutionally protected rights by a local authority and if the powers are given to relieve from the effects of deprivation of such constitutionally protected rights and if there are no reasons why such statutory powers should not be exercised then I must interpret such powers as being mandatory.
    No reason has been advanced by the defendants why these serviced sites cannot be provided. It was clear from the evidence that there was no financial reason why this could not be done.”
    54.      There was debate between the sides as to whether the duties owed by a housing authority could ever be duties owed to a particular individual as distinct from a class of travellers or whoever. In my view it is clear from the decisions of both the High and Supreme Courts in Housing Act cases that the courts will in particular instances make specific orders in favour of particular individuals. In the present case I have concluded that the respondents were in breach of a duty to consider the application for housing of the applicants. I also said, however, that they may well be entitled by reference to their lawful indigenous policy to take the view that such applications were very unlikely to succeed - at least immediately. This case is therefore different from the case before Costello J. in O’Brien because reasons have been advanced by the respondents as to why the accommodation needs of these applicants may not be satisfied immediately. There is a rational and comprehensive programme in place which has been prepared by reference to available resources notwithstanding complexity and difficulties from both the traveller and residents section of the community and no places seem to be immediately available.
    55.      On the other side, counsel for the applicants submits that a consideration of the applicants claim for accommodation may well result in some degree of assistance or other consideration by the respondent authority. He submits that the applicants are entitled to be considered for accommodation by reference to the entire range of facilities provided by the respondent authority. I do not know what consideration the respondents might bring to bear on assessing the application of the applicants. I have held that the applicants were entitled to have their applications considered by the local authority and that this was not done. I have also refused to hold that the respondent authority’s indigenous policy in its traveller accommodation programme was unlawful. That being the case the respondent, when considering the application for accommodation by the applicant, is entitled to have reference, inter alia, to that programme. Even if Mr. McCullough SC is correct in saying that the relevant statutory provisions are enacted to implement the constitutional guarantees in relation to bodily integrity and health I do not see that this entitles his client to an order directing the respondents to provide them with accommodation. The breach which I have identified was a failure to consider the application. That consideration will be done by reference to the statutory criteria and the programme which includes the indigenous policy. I do not think this is a case, such as O’Brien, where no reason was advanced by the local authority as to why the relevant accommodation cannot be provided - on the contrary such a case has been advanced and includes reference to the indigenous policy which is a lawful one. In these circumstances I refuse to make an order directing the respondents to provide accommodation for the applicants.
    56.      There will therefore be an order directing the respondents to consider the application of the applicants for accommodation generally and that in so considering these applications they must not exclude the applicants in limine by reference to the indigenous policy. In so considering the applications, however, they are entitled to have regard to their indigenous policy but not to apply it as a rule without exceptions.
    57.      In this latter context I think it might be of some assistance if I referred to the judgment of Finlay P. (as he then was) in In re N. a Solicitor (Unreported, High Court 30th June, 1980). A solicitor appealed to the President against a refusal of the Incorporated Law Society to issue him with a practising certificate. He was admitted as a solicitor in 1947 and practised with his father in a family law firm for 19 years and thereafter on his own for 7. Then, in 1973, his bank accounts were frozen by the then President of the High Court and in July, 1975 Finlay P. discharged that freezing order. His last practising certificate had issued to him in January, 1971: at no time was he struck off the roll of solicitors nor was he suspended from practice. From the time he ceased to practice in March, 1973 he had a period of some 18 months employed as a legal assistant but had not worked otherwise as a lawyer during that 7 year period. On his application under appeal the Law Society had indicated they would grant him a limited certificate, that is a certificate to practice as an assistant solicitor with any firm of solicitors, government body, commercial firm or company and that such limited certificate would issue when he notified them of the name of his employer. He gave evidence on appeal that he had failed to obtain work on this basis and the President considered that the conditions attaching to the proposed certificate had a bearing in this regard. The applicant again applied to the Society which in effect confirmed their earlier decision. They wrote:
    “I am informed by the Registrar’s Committee that the grounds on which the above set out condition was imposed is that, in the opinion of the society, you are unfitted (sic) to hold an unconditional Practising Certificate because of the lapse of time since the date of your last Practising Certificate and the admitted fact that you have not practised since. The limited Cert. cannot issue until the Society is advised of your place of business within the State.”
    58.      Counsel for the Society before the President stated that these terms and conditions were those ordinarily and usually imposed by the Society upon any solicitor applying for a practising certificate after a significant absence from practice.
    59.      The applicant explained that while he was in practice with his father he had little independent control and that the collection of costs had been haphazard and individualistic and faced him with difficulties when his father died which he was unable to overcome in succeeding years.
    60.      Against these facts Finlay P referred to the judgment of the Supreme Court In re D., a Solicitor [1958] 95 I.L.T.R. 60 (per Davitt P.) as follows:
    “When considering whether a certificate should or should not be issued the Society should however take into account all the relevant circumstances existing at the time the decision has to be made having due regard to: the interest of the public; the interest of the profession; the interests of the clients of the solicitor in question; and the interest of the solicitor himself.
    No attempt should be made to lay down a rule which should be applied to all cases irrespective of individual circumstances. We are not suggesting that any such attempt was made by the Society in this case but wish to make plain, what is indeed obvious, that each case must be decided on its own peculiar merits.”
    61.      Applying those principles Finlay P. determined that the appellant was entitled to a certificate without conditions. He based his decision on his view that the proposed condition might have operated more onerously than the Society had appreciated and also his view that the appellant would be cautious about undertaking a practice which he would not be capable of controlling. He shared the Society’s apprehension about the seven year gap in the appellant’s practice. He gave one further reason which is relevant and is stated as follows
    “Furthermore the application of a type of general rule to persons who have been a substantial period out of practice that they should be required to spend a year as an assistant or employed solicitor before being permitted to practice on their own borders on infringing the injunction against the application of general rules contained in the decision of the Supreme Court which I have already referred to.”
    62.      I have referred to this solicitor’s case precedent in somewhat laboured detail because it seems to me that it might be of assistance to the respondent in implementing the order of the court.

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010