Supreme Court of Ireland Decisions

1. The facts in this case are not seriously in dispute. The evidence in the High Court satisfied the learned trial judge that the roads in County Cavan used by the applicants to get to and from their houses had deteriorated through lack of repair and maintenance to such an extent that they were, at the time of the hearing, dangerous to vehicles. That she was entitled so to find was not disputed on behalf of Cavan County Council, the appellants in these

2. In an affidavit, the County Engineer, Mr. John Tiernan, said that there were approximately 1,350 discrete county roads in County Cavan, in addition to regional and national roads. Approximately, 600 of them, including those the subject of these proceedings, were deemed at that time to be in “very poor or critical condition”. The cost of bringing these roads to a satisfactory condition would be in the order of IR£40 million. He also said that the roads in this area, because of weak soil conditions, increased axle loading and under funding were collectively the weakest link in the chain of the entire road network in the country.

3. In order to deal with this, Mr. Tiernan had recommended that an eight year recovery programme should be adopted by the Council, requiring a total expenditure of IR£9.6 million per annum for the regional and county roads for each of the eight years. He said that:-

4. The total funding available to the Council from all sources, he said, represented just over 53% of the amount required to implement the programme. Mr. Tiernan said that, in deciding which roads should be given priority, the Council took the following matters into account:-

5. It was also not in dispute that the Council has only three sources of income to meet its admitted statutory responsibilities in this and other areas: the imposition of service charges, the levying of rates and rate support and other grants from central government. The service charges are levied in respect of water supply, sewerage and refuse collection. Since the abolition of domestic rates and the determination by the courts that rates on agricultural land were unlawful, the County Council is confined to levying rates on commercial properties. The evidence was that the commercial rateable valuation per mile of county and regional road in Cavan was the 23rd lowest in the country and that to raise the money required for road repairs through rating would necessitate raising those rates by approximately £92 bringing the total rate to a figure in excess of £122 for a period of eight years.

6. There is also no dispute as to much of the relevant law. Section 82 of the Local Government (Ireland) Act 1898 (hereafter “the 1898 Act”) provides that:-

7. The works referred to in this provision include roads, by virtue of s.109.

8. A statutory duty to keep the roads in their county in good condition and repair was thus clearly and unambiguously imposed on the Council. While other statutory provisions have been enacted since then concerning the repair and maintenance of roads, it is indisputable that the Council remains subject to that statutory duty and, as the evidence before the High Court established, that the roads were in a serious state of disrepair. The single issue in this appeal is as to whether the applicants were entitled to an order of mandamus requiring the Council to comply with their statutory duty. The trial judge held that they were and, in the result, made an order in the following terms:-

9. One of the grounds on which the courts declined to exercise their discretion in favour of granting the order was, if established, the futility of so doing. That, it is claimed on behalf of the Council, is the position in this case.

10. The leading authority is Re: The Bristol and North Somerset Railway Company [1877] 3 QBD 10 where Cockburn, C.J. said:-

11. The leading Irish authority on the topic is the decision of the former Supreme Court in The State (Modern Homes (Ireland) Limited v. Dublin Corporation [1953] IR 202, the facts of which are well known and can be shortly summarised. The defendants, Dublin Corporation, as the planning authority for their area, had resolved to make a planning scheme under the provisions of the Town and Regional Planning Acts, 1934 and 1939. That entitled them to require buildings erected without their permission in their area to be pulled down or altered. But it also obliged them to make the planning scheme “with all convenient speed” and submit it to the Minister for Local Government for his approval. Although the defendants had passed the appropriate resolution in 1936, by the year 1950 they had failed to make the development plan and the prosecutors, who had been refused permission for various buildings which they proposed to erect or had been subjected to

12. Maguire CJ speaking for the court (Murnaghan, O’Byrne, Lavery and Kingsmill Moore JJ) said:-

13. Having cited the passage just quoted from the judgment of Cockburn CJ in Re: The Bristol and North Somerset Railway Company he went on:-

14. As the Chief Justice there makes clear, the defendants in that case had the resources necessary for the making of a planning scheme: the argument on their behalf was that, since they were the only body under the statute capable of making a scheme, the court would be powerless if they chose to disregard its order. It is hardly surprising that this bold proposition was unanimously rejected by the court.

15. In this case, the Council have never suggested that they would defy any order the courts might choose to make. They rest their opposition to the making of an order of mandamus on an entirely different ground, i.e. that, given their

16. Whether or not that affords a legal ground on which the High Court should have exercised its discretion to refuse the order of mandamus, there can be no doubt that its factual basis is correct and unchallenged. The only effect of the order of mandamus if complied with, will be the repair of the strip of road referred to in the order. Unless the necessary funds are provided by the Government, the rest of the road network in County Cavan will remain in a state of unacceptable disrepair in the future and the order will thus fail to secure the compliance by the Council with their statutory duty. It has not been seriously suggested that it is a practical proposition for the Council to impose

17. The learned High Court judge, when she came to consider the practicalities of making the order sought, said:-

18. The Oireachtas is not a party to these proceedings and, presumably, having regard to the separation of powers, could not be. Neither is the Government or the Minister for the Environment. The Attorney General

19. The decision of a divisional court and the Court of Appeal in The King (Westropp) v. County Council of Clare [1904] 2 IR 569 is, however, relied on by the applicants as establishing that mandamus is indeed an appropriate remedy in circumstances such as the present. In that case, a ratepayer, whose lands adjoined a road, complained on many occasions of its condition and called on the County and District Councils to put it into, and maintain it in, proper repair. The councils having failed to do so, he was held entitled to a writ of mandamus commanding the councils to put the road in proper repair. Emphasis was laid in the judgments both of the divisional court and the Court

20. The case is, accordingly, an authority for the granting of an order of mandamus against a County Council which has failed to comply with its statutory duty under s.82 of the 1898 Act. However, in order to determine whether it is applicable to the circumstances which have arisen in this case, the facts must be considered in more detail. The County Council had entered into a contract for the repair of the road for five years with a man who subsequently became incapacitated by mental illness. The council did not replace him and as a result the road deteriorated to such an extent that it was described as “bad and dangerous”. In the course of his judgment in the Court of Appeal, Fitzgibbon LJ pointed out that, although the council had eventually obtained another contractor, even his contract did not oblige him to put the road into “good

21. There was, accordingly, no question in that case of the council not having the resources to carry out the work: the ruinous condition of the road was due to the failure of the Council to replace the contractor who had become incapacitated, although there was no suggestion that they were unable to replace him, and to their further failure to ensure that the new contractor was employed to restore the road to its former state. Nor was there any question in that case of a particular landowner seeking to have the stretch of road adjoining his land given priority over all the other roads in a similar state of disrepair in the county. Having regard to its particular facts, it cannot be regarded as a conclusive authority in favour of the proposition contended for on behalf of the applicants in this case. There are, in any event, doubts as to its correctness to which I shall return.

22. The question as to whether a mandamus should issue because of the alleged default of a County Council in repairing the roads in their area was also considered by the King’s Bench Division in The King Hewson) v. The County Council of Wicklow [1908] 2 JR 101. In that case, the owner of a house near Greystones in County Wicklow complained that the County Council had failed to keep a road or track leading from a public road to the house in proper repair and condition. An application to make absolute a conditional order of

23. I see no reason for supposing that, confronted with the financial constraints to which the Council are subject in the present case and the consequences of making the order sought, the Lord Chief Justice would have reached any different conclusion.

24. It should also be noted that, in that case, it was accepted that the relevant expenditure limits could be exceeded if the consent of the Local Government Board was obtained. The comment of Gibson J. is of interest:-

25. Two recent decisions, one Irish and one English, were also relied on by the Applicants. The Irish authority is the decision of the High Court in Hoey v. Minister for Justice [1994] 1 ILRM 334. In that case, two solicitors practising in Dundalk sought an order of mandamus requiring the Minister for Justice to direct Louth County Council to provide accommodation for the Circuit Court in Drogheda. The courthouse in Drogheda was in such a serious state of disrepair that Drogheda Corporation had served a Dangerous Buildings Notice on the County Council and the sittings of the court were transferred to Dundalk. Under section 3(1) of the Courthouses (Provision and Maintenance) Act 1935, the County Council were required to provide courthouse accommodation for the sittings of any court held in their functional area “as the Minister shall direct either generally or in any particular case “. In purported exercise of his powers under this provision, the Minister informed the County Council that he did not require them thenceforth to provide courthouse accommodation at Drogheda for sittings of the Circuit Court. It was stated on his behalf that he did so because sufficient funding had not been provided by the exchequer for the necessary repairs to the courthouse. Lynch J. held that the Minister was not entitled to give such a direction, saying:-

26. He accordingly granted an order of mandamus requiring the Minister to direct the County Council to provide courthouse accommodation in Drogheda.

27. That case is, in my view, entirely distinguishable from the present case. The Minister was seeking to do what in law it was held he could not do, i.e. exonerate the County Council from their statutory duty of providing and maintaining in repair suitable courthouse accommodation in a venue lawfully designated for sittings of the Circuit Court. The Council in this case make no claim to be relieved of their statutory obligation to keep the roads in their county in proper repair and condition: they say no more than that the granting of an order of mandamus in the form sought by the Applicants will be ineffectual to secure compliance with their statutory duty.

28. The English case is R. v. East Sussex County Council ex parte Tandy [1998] 2 All ER 769. In that case, the applicant was a schoolgirl who suffered from a condition called myalgic encephalomyelitis (ME) since she was seven, in consequence of which she found it very difficult, and at times impossible to

29. The reference to an order for mandamus is to an order normally made at the suit of the Local Government Board (now the Minister for the Environment) under the provisions of s.15 of the Public Health (Ireland) Act 1896. That passage suggests strongly that the reference to an order of mandamus in s.8 1 of the 1898 Act is to such an order and not to one sought at the suit of a member of the public. Remarkably, Lord O’Brien LCJ makes no reference in his judgment in Westropp either to his earlier judgment in Harbinson or to the effect of s.82(3) of the 1898 Act. Nor is it referred to at any point in the later case of Hewson. The authority of the two latter decisions, accordingly, cannot be regarded, in my view, as beyond doubt, notwithstanding the considerable eminence of the judges who decided them. However, for the reasons I have already given it is sufficient to say that, in the case of Westropp

30. However, that change in the common law position was only to become operative: -

31. No such order has ever been made by the Government and it was held by a majority of this court in The State (Sheehan) v. The Government of Ireland [1987] IR 550 that an order of mandamus could not be granted requiring the Government to bring the section into operation. The position, accordingly, remains that a person who suffers injury by reason of the failure of a county council to carry out their statutory duty to repair a road cannot recover damages

32. In view of the uncertain nature of the authorities, and the fact that any argument based on lack of standing was abandoned in the High Court, I would reserve for another occasion the question as to whether, even assuming a culpable neglect on the part of a council in failing to perform their duties under the 1898 Act, mandamus lies at the suit of a member of the public to compel them to perform their duty. For the purpose of this case, it is sufficient to say

33. I would allow the appeal.

34. These proceedings raise issues as to the extent of the liability of a local authority to keep in repair roads in their areas and the nature of the remedy (if any) available in the event of their failure to perform that duty.

35. By her judgment and order dated the 20th day of December 1996 Ms Justice Carroll held that the County Council of the County of Cavan (the Appellants) had failed in their statutory duty to maintain the roadway between Ashgrove and Stag Hall, Belturbett, County Cavan and

36. Originally the Appellants disputed the locus stand of the Respondents to maintain these proceedings. That challenge was subsequently abandoned. Again it is conceded that the Appellants do have certain obligations in respect of the repair and maintenance of the roads in their administrative area and moreover they concede - as clearly they must - that the roadway in question is (or was) in a deplorable and perhaps dangerous condition. What the Appellants disputed was the extent rather then the existence of a statutory duty to repair and the nature of the remedy (if any) available to local residents in the event of a failure to fulfil that duty.

37. Last year was the centenary of the legislation which introduced major reforms in the administration and constitution of Local Authorities. It was the Local Government (Ireland) Act, 1898, which imposed on Local Authorities the duty to maintain roads. Section 82 (1) of that Act provided that:-

38. The Local Government Act 1925 (Part III) section 24 provided:-

39. The Roads Act, 1993 repealed Part III of the Local Government Act, 1925 and in lieu thereof provided that:-

40. I have quoted at length from section 13 of the 1993 Act as (taken in conjunction with the 1898 Act) it provides the essential code relating to the duties and rights of Local Authorities in respect of roadways. The argument of the Appellants was based largely upon that section and the contention that the learned Trial Judge did not have sufficient regard thereto. Furthermore, section 13 must be considered in conjunction with section 12 which authorises “the abandonment of public roads” in certain circumstances and, or so the Appellants would contend, the legislative provisions regulating the finances of local authorities.

41. What the Appellants contend is that the statutory duties imposed upon local authorities in relation to the maintenance of roadways are not “absolute “. It was contended that the scheme of the 1993 Act was to create the following situation:-

42. The history as to how inhabitants of particular areas came to construct roadways for their own convenience and that of others is of ancient origin but by no means irrelevant. It was the self-imposed obligation or, more correctly, the task voluntarily undertaken by local residents which explains why, to the present day, local authorities may be liable in tort for what they do but not for what they fail to do. Moreover, the consideration of the circumstances which existed a hundred years ago when the statutory obligation of repairing roads was cast upon local authorities may help to explain why the duty was imposed and how it came to be accepted. It was only in the nineteenth century that Macadamised surfaces were invented and presumably road surfaces in County Cavan and elsewhere at the end of that century would have been regarded as primitive by comparison to modern standards. On the other hand the wear and tear on roads by motor vehicles at that stage must have been virtually unknown. Although the invention of the internal combustion engine by Carl Benz occurred some years

43. Undoubtedly the advent of motor vehicles, farm machinery and heavy lorries, and that in vastly increasing numbers, has altered dramatically the standard required in the construction of roads and the problems of maintaining them. Unfortunately these problems are multiplied in County Cavan and adjoining counties for the geo-technical reasons explained by the County Engineer, Mr John Tiernan, in the very helpful affidavit sworn by him on the 12th day of December 1994. He explained the nature of the “widespread weak soil conditions” which exacerbated the problems for road maintenance in the area. Ironically it was those same conditions which created additional difficulties for the Appellants in financing road works at the time when their income was derived substantially from rates. The poor soil conditions resulted in low rateable valuations with correspondingly modest returns from rates. But at least under the rating system the capacity of the local authority to strike a rate provided, in theory at least, a balancing factor between the demands made on the local authority by the statutory duties imposed on it and the financial resources required to discharge those obligations. The effective abolition of rates on domestic hereditaments by the Local Government (Financial Provisions) Act 1978 and the decision of this Court in Brennan v. Attorney General [1984] ILRM 355 declaring unconstitutional the legislation under which rates were imposed on agricultural lands has left Local Authorities with only a very small income derived form local taxation. They are now dependant on central government to make

44. As Mr Tiernan demonstrated in his affidavits it would be wholly impracticable for the Cavan County Council to raise by way of rates even a fraction of the monies required to repair and keep repaired the roadway system in County Cavan. That system comprises 1,350 county roads and, as Mr Tiernan fairly concedes, 600 approximately of those roads could be described “as being in a broadly comparable condition to the roads the subject matter of these proceedings “. That those roads are in a deplorable condition is clear beyond dispute and indeed the learned Trial Judge satisfied herself by inspection that such was the case. Mr Tiernan explained that both central government and the local authority recognised the “particularly dreadful state of the roads in County Cavan “. It was his disturbing conclusion that it would take eight years and a sum of nearly £10 million a year to correct the problem. It was, however, his calculation that on the basis of the financial system current at the date of his affidavit and applying even the most optimistic projections it would take 22 years before the entire road network in County Cavan would be brought up to a satisfactory condition.

45. The Appellants stress the fact that the 1898 Act provided no definition as to what constitutes good condition and repair in relation to roadways. It was urged that the determination of

46. Whilst I would have every sympathy with the officials and officers of the Cavan County Council in their efforts to remedy a situation which may represent the result of neglect over a period of many years, and may indeed be caused by or contributed to by geo-technical factors peculiar to their area, without being given the resources or the means of raising the finances necessary to solve the problem. However I cannot see that these factors can change the nature of the statutory duty imposed on them. There is a mandatory requirement to repair the roads. The Applicants have identified roads which most assuredly have not been adequately repaired. At the very least the Applicants must be entitled to a declaration that the Respondents/Appellants have failed in their statutory duty. The question remains whether the powers of the Court are restricted to that limited and inadequate remedy.

47. It is argued on behalf of the local authority that an order in the nature of Mandamus would involve the Court in determining the priority to be given to one stretch of roadway over another or indeed to one surface over another. On behalf of the Attorney General it was said that the making of an order of Mandamus would amount indirectly to a direction to the State -as the ultimate paymaster - as to how the Central Fund should be applied and that this would be an intrusion upon the Executive Function.

48. Historically - and of necessity against a different constitutional background - the issue of granting a Mandamus directing a local authority to repair roads was considered in two cases carefully analysed before the Court, namely, The King (Westropp) v. County Council of Glare

49. Lord Justice Fitzgibbon expressed the same view (at page 583) in the following terms:-

50. Gibson and Kenny JJ were less emphatic in their conclusions. What Gibson J said (at page 117) was as follows:-

51. Kenny J too reviewed the evidence and had regard to the fact that presentments had been made in respect of the particular roadway but went on to conclude (at page 122) as follows:-

52. It must be recognised that Lord O’Brien was not speaking about the inadequacy of funds available to a county council for the fulfilment of a statutory purpose but a positive statutory embargo on spending monies in excess of a particular amount without an appropriate consent. That restriction was contained in section 27 (2) of the 1898 Act in the following terms:-

53. The importance of that provision was that there was an express statutory annual limit to the amount which a local authority could expend on the repairs of roads. Clearly an order of Mandamus could not be granted so as to override that statutory limit. However, the problem which that subsection might have created for the applicants was resolved by its effective repeal by section 27 by the Local Government Act of 1925.

54. In recent years orders of Mandamus had been granted to compel a local authority to repair and rebuild courthouses in accordance with the statutory duty imposed by them in that regard (see The State (King) v. The Minister for Justice [1984] IR 169 and Hoey v. The Minister for Justice [1994] 1 ILRM 334) . Whilst it is true that in those cases the statutory obligation on

55. The appellant in that case, Beth Tandy was about sixteen years of age. She had suffered from myalgic encephalomyelitis and was mildly dyslexic. From May 1992 the Local Education Authority provided her with five hours home tuition per week as it was impossible for her to attend school. Subsequently the Local Education Authority cut the hours of home tuition from five hours per week to three hours per week because of financial constraints. That decision was challenged by way of judicial review. In his speech delivering the judgment of the House of Lords Lord Browne-Wilkinson said (at page 777):-

56. Likewise, in my view the obligation imposed by the Oireachtas on Local Authorities in relation to the maintenance and repair of public roads is a duty and must be performed and may be enforced as such.

57. Nor do I accept that the obligation of the Local Authority is confined to or can be considered only in relation to the total road network within their jurisdiction. The Appellants argue that tax payers or residents could not seek redress in relation to particular roadways affecting their interests but could claim redress only if there had been a failure or neglect by the Local Authority to maintain the network as a whole. Unquestionably some statutory obligations are indivisible in their terms and in their purpose. The obligation to make a planning scheme under the Town and Regional Planning Regulations 1934, the effect of which was considered in the The State (Modern Homes (Ireland) Ltd) v. Dublin Corporation [1953] IR 202, is an example of such an obligation. However in general it would seem to me that where a statutory obligation is imposed upon a public body for the benefit of citizens generally or a particular section of the community, those persons affected by a breach of the statutory duty are entitled to seek and obtain a remedy insofar as the breach of duty impinges upon the complainant. On the other hand the statutory provisions at issue here cannot be invoked as “fire brigade provisions” to require a local authority to take immediate action in relation to every crack and crevice on roads in its area. Clearly, some roads may be in greater or more urgent need of repair than others and, in this regard, the management of its road-fixing schedule is a matter for the local authority. Considerations of prudent management may

58. It is well settled law that the granting or withholding of judicial review by way of mandamus is discretionary. I would have no doubt that such discretion should be exercised sparingly in relation to the affairs of a local authority and, in particular, should not be granted at all where any doubt exists as to the existence of a duty or the adequacy of its performance. However, in the present case it is common case that the duty to repair exists and whatever doubt might exist as to the standard a local authority is required to achieve, it is clear that the condition of the road in question falls far short of that standard and the Cavan County Council does not suggest otherwise. Apart from the hesitation in granting the discretionary relief it is clear that adequate time must be given for compliance with it even where the failure may be due to default over a protracted period. The controversy as to the standard of repairs required to be carried out can be answered by reference to the judgment of the Chief Baron in the Westropp case where he said, (at page 578) and I agree, that:-

59. I have no reason to doubt that the officials of the Cavan County Council would act responsibly and in obedience to an order of the Court. I would be confident that the necessary

60. In my view the learned Ms Justice Carroll was correct in the judgment and order given and made by her and I would dismiss the appeal.