Fitzgerald Ors -v- Tipperary North Riding County Council HIGH COURTJudgment was delivered by Mr Justice Hanna on May 5th, 2009
JUDGMENT
The decision of Tipperary North Riding County Council to purchase a house that it proposed to rent to a Traveller family in need of housing fell within the provisions of the 1966 Housing Acts, and to discriminate against the family because they were Travellers would be unconstitutional.
BACKGROUND
The applicants were residents of Cullenagh, Ballina, Co Tipperary, who took judicial review proceedings against the county council seeking to prohibit it from concluding a tenancy agreement with the O’Reilly family, who had been living in the area for many years and were on the housing list since 2000.
The O’Reilly family were notice parties in the action, and they consisted of Mr and Mrs O’Reilly and their eight children, one of whom suffered from a physical disability and three of whom had special needs.
Mrs O’Reilly also suffered from a physical disability and was cared for by Mr O’Reilly. They lived in cramped and unfit conditions.
The standalone dwelling house in Cullenagh, which was the subject of the proceedings, was purchased by the deputy county manager on behalf of the county council and its suitability for the needs of this family had been noted. It appeared that the intention of the council to house them there had not been notified to the public in advance.
The residents then took judicial review proceedings seeking orders prohibiting the conclusion of a tenancy agreement, or quashing it if it had already been made, and an interlocutory injunction restraining the council from concluding such an agreement until the proceedings had been concluded.
The applicant residents claimed that the proposed housing of a Traveller family in the house was ultra viresthe power of the council and of the county manager.
John Rogers SC argued on behalf of the applicants that the council was obliged under the Housing (Traveller Accommodation) Act 1998 to draw up an accommodation programme for the needs of Travellers in its functional area and the provision of accommodation to address those needs. Under the 2001 Local Government Act the council was required to draw up a policy and the manager was obliged to perform his functions in respect of the programme drawn up.
The 1998 Act required public consultation on Traveller accommodation. It was the intention of the Oireachtas that the Traveller accommodation programme would provide the framework under which all Travelling families would be accommodated.
He said that the house in question did not fall under any of the types of permanent accommodation outlined in the accommodation programme as it was a once-off house, not part of a group housing scheme and not a standard house in a local authority housing scheme. Nor was it a “rural house”, also mentioned in the programme.
David Kennedy SC, for the council, said that, because of the significant needs of the O’Reilly family, it was decided to house them by exercising the council’s executive power under the Housing Acts.
The council had been given power to address questions of specific need, and it would be unconstitutional and contrary to the European Convention on Human Rights to exclude the O’Reilly family from this because they were members of the Travelling community.
Decision
Mr Justice Hanna pointed out that S 1 (2) of the 1998 Act stated that the Housing Acts 1966 to 1998 should be construed together as one Act.
The 1998 Act was not to be taken in isolation, but formed part of the purpose of housing legislation.
The council was empowered under the 1966 Housing Act to provide accommodation for homeless persons, and this was not abrogated by the provisions in the 1988 Act regulating the provision of accommodation for members of the Travelling community.
S 9 (2) of the 1988 Act, outlining the assessment of housing needs, listed homelessness, the unfitness of existing accommodation, overcrowding and being disabled or handicapped as qualifications for housing.
There could be no dispute that the O’Reilly family fell within those subsections.
He also pointed out that they would be granted the letting under the most stringent terms, and there was no evidence they would not abide by them.
“That they might come within the scheme for Traveller accommodation . . . does not, in my view, oust such rights as they possess as citizens to the benefit of the Housing Acts generally.
“That they should be treated in some way differently from other citizens would not only be erroneous in law but would, in my view, fall foul of the notice parties’ rights under Article 40.1 of the Constitution, which provides: ‘All citizens shall, as human persons, be held equal before the law’.”
Dismissing the application, he said that the council was acting in an executive capacity in proposing to let the house in question, and was entitled to do so.
John Rogers SC and Patrick Whyms, instructed by Louchnane Co Solrs, Ennis, for the applicants; David Kennedy SC and Frank Quirke BL, instructed by David Hodgins Solrs, for the repondents