Lawful for council to seize unlicensed horse within its area and detain it elsewhere

Martin Mongan (applicant) v South Dublin County Council (respondent).

Judicial Review - Local authority - Whether detention of horses seized by local authority unlawful - Whether horse seized may be detained outside controlled area - Control of Horses Act 1996 - South Dublin County Council Bye-law No 6.

The High Court (Mr Justice O Caoimh); judgment delivered 13 October 2000.

PURSUANT to section 37 of the Control of Horses Act 1996 an authorised person has power to seize and detain horses which were being kept in a controlled area without a horse licence entitling such horses to be kept in that area. Section 37 (3) provides that a horse seized may be detained in a pound located anywhere in the State or may be detained in such other place as may be specified by the local authority in whose functional area the horse was seized. Section 39 provides for the making of bye-laws.

Where a horse was seized within the functional area of the respondent and detained outside its functional area in a pound in County Kilkenny, such detention was in accordance with the provisions of section 37(3) of the Act. However, the bye-laws introduced by the respondent under the Act would not apply to such a horse kept outside the functional area of the respondent.

Mr Justice O Caoimh so held in refusing the relief sought by way of Judicial Review.

Cormac O Dulachain BL for the applicant; Patrick Butler SC for the respondent.

MR JUSTICE O CAOIMH said that the applicant sought a declaration that the continuing detention of the applicant's horses by the respondent was unlawful, and sought injunctions directing the respondent to release his horses, restraining it from disposing of the horses and restraining it from seizing the horses until such time as the applicant was in a position to comply with all relevant statutory regulations and enactments, in particular the provisions of section 3 of the Control of Horses Act 1996 (hereinafter "the Act").

Mr Justice O Caoimh said that the applicant was a member of the travelling community and for many generations the Mongan family had reared and traded in horses. The applicant was brought up with horses and claimed that they had always been part of his life. He always wanted to bring up his children with horses as he considered that it would keep them out of trouble and because he wanted to continue the traveller traditions and culture. The applicant stated that he was aware that under the provisions of the Act he must have suitable accommodation for his horses. The applicant had admitted that his horses had been seized by the respondent since the coming into full operation of the Control of Horses Act 1996 and bye-laws made thereunder.

Mr Justice O Caoimh said that insofar as the applicant had the horses in question returned to him, the only matter outstanding in these proceedings was the determination of the lawfulness of the acts of the respondent, the issue of damages and costs.

Mr Justice O Caoimh stated that section 2 of the Control of Horses Act 1996 defined the term "authorised person" as a person appointed as such by a local authority under section 3. He said that an authorised person may exercise any of the functions conferred on an authorised person under the Act within the functional area of the local authority which appointed the authorised person or in the functional area of another local authority with which an agreement existed. Section 37 the Act provided that an authorised person may, inter alia, seize and detain any horse that the authorised person had reason to suspect is causing a nuisance or posing a danger to persons or property, being kept in a controlled area without a horse licence or being kept in any area contrary to any bye-laws. He stated that section 39 dealt with the period of detention and disposal of horses detained and permitted the making of bye-laws by a local authority for various matters including the notices to be given or displayed in connection with the detaining of horses and the fees to be paid by the owner or keeper of such horses including various keep fees. Mr Justice O Caoimh said that bye-laws had been made by the respondent under the provisions of the Act and bye-law 6 dealt with horses detained under section 37 of the Act and provided inter alia that a notice of the detention of the horse must be given in accordance with Form 1 as set out in a Schedule to bye-law 6. The said notice should be served on the keeper of the horse where known, as soon as possible. It also provided that the respondent may recover from the owner or keeper of the horse all fees in respect of the seizure and detention of the horse, together with all or any expenses including keep, veterinary and transport fees incurred by the respondent.

Mr Justice O Caoimh said that while a local authority appointed an "authorised person" it was clear under the terms of the Act that the powers conferred on an "authorised person" are essentially to be exercised within the functional area of that local authority. From a reading of section 37 of the Act he said that it was clear that an authorised person had power to seize and detain horses which are being kept in a controlled area without a horse licence entitling the horse to be kept in that area. It was clear from section 37 (3) that a horse seized under this section may be detained in a pound anywhere or in such other place as may be specified by the local authority in whose functional area the horse was seized. Mr Justice O Caoimh said that provided there was a pound to which the horse to be seized was to be conveyed and detained, that pound may be anywhere within the State. If the horse was to be kept in another place which was not a pound, that place must be specified by the local authority.

In the present case the horses had been seized within the functional area of the respondent and detained outside its functional area but clearly in a pound in County Kilkenny. Accordingly, Mr Justice O

Caoimh was of the view that the detention in question was in accordance with the provisions of section 37(3) of the Act.

With regard to the fees arising, Mr Justice O Caoimh said that it was clear from a reading of section 39(2) of the Act that provision might be made in bye-laws for fees to be paid by the owner or keeper of such horses. The bye-laws in question made by the respondent related only to such horses as were in fact detained within its functional area. He said that it was clear from the facts of the case that the horses in question were not detained within the functional area of the respondent. On the other hand, he said that bye-laws may have been made by Kilkenny County Council relating to the detention of horses within its functional area. Accordingly, Mr Justice O Caoimh said that he was of the opinion that certain of the charges levied by the respondent were in excess of those which may be imposed by it on the applicant in circumstances where it had not been shown that these charges were in accordance with bye-laws made by Kilkenny County Council.

In conclusion, Mr Justice O Caoimh said that the court must refuse the applicant the essential relief which he sought. The applicant had referred to the traditions of the traveller community in Ireland and in this regard had indicated his wish to bring up his children with horses because of his love for horses and because it kept them out of trouble. In spite of this, Mr Justice O Caoimh stated that it was important for the applicant and any other member of the travelling community to realise that changes had been effected in the law by the Act. Notwithstanding the applicant's wishes to maintain traditions and culture, such traditions and culture could be maintained only within the terms of the law. He said that this was as set out in the 1996 Act and bye-laws made thereunder. He stated that even in the context of the Act, it was hoped that the respondent might be in a position to assist the applicant and other members of the travelling community to maintain their traditions and culture within reasonable limits.

Solicitors: Brophy Solicitors (Dublin) for the applicant; A. O'Gorman (Law Agent) for the respondent.