Clare County Council v. McDonagh [2019] IEHC 662 

The defendants claimed before the High Court that Clare Co. Co. had a statutory duty to provide them with accommodation after their accommodation became inhabitable due to an arson attack. The defendants’ case was based on a misunderstanding of allocation of public funding by Clare Co. Co. and so the counterclaim was dismissed by the Court.  

Facts: 
This case concerned the request for a permanent injunction restraining the defendants from trespassing on lands at Ashline, Kilrush Road, Ennis, Co. Clare.  

This land was acquired by the plaintiff, Clare Co. Co, in 1990 and was used for accommodation for members of the Traveller Community. Four houses were built on the land in 1998 and two more were built in 2006. The defendants, Mr and Mrs McDonagh, were tenants in one of the first four houses from the 26th March 1998, the terms of the tenancy being set under the Housing Act 1966.   

There were problems with feuds involving Traveller Community families in the early 2000s and the houses at Ashline were subject to arson attacks. In 2012 Mr McDonagh spoke to Mr Colm O’Mahony of Clare Co. Co. and requested that a house be purchased for his family in Cork as the house in Ashline was no longer habitable. He was uninterested in being placed on the housing list and also suggested that he would be agreeable to Clare Co. Co. “buying him out”. Mr McDonagh reported that there was a threat of violence on his house in Ashline but Mr O’Mahony explained that Clare Co. Co. was not in a position to purchase a house for anyone outside of their functional area.  

On the 16th November 2012, Mr McDonagh was admitted bail by the High Court for several offences on the terms inter alia that he would reside at a specified address in Cork City. Mr O’Mahony explained to the family that they would have to apply to Cork Co. Co. for assessment and that they would need to surrender their house in Ashline and return their keys. The house was subject to another arson attack on the 11th November 2012, an attack which Mrs McDonagh told Mr O’Mahony had left them homeless. Mrs McDonagh and her children moved in with Mr McDonagh’s brother in Cork and thereafter with his mother in Clare.  

On the 29th November, Clare Co. Co. offered McDonagh’s housing at No. 1 Ashline, but the McDonagh’s wanted to live at No. 5 which was, at the time, uninhabitable due to damage. On the 19th December 2012, Mr McDonagh had his bail revoked and later served a term of three years’ imprisonment.  

On the 25th January 2013, Mrs McDonagh met with Clare Co. Co. and asked for tenancy at No.3 Ashline. The Council were only able to offer them accommodation at 1 Beechpark but Mr and Mrs McDonagh were not willing to accept this offer. In the summer of 2013, the Council began refurbishment of No.4 Ashline but it was later burned out. Mrs McDonagh met with Mr Niall O’Keefe of Clare Co. Co on the 6th January 2014, who informed her by writing that the houses as Ashline were to be refurbished and that an offer of accommodation would be made to the McDonaghs on completion of. In September 2017 Mr and Mrs McDonagh left privately rented accommodation and brought mobile homes to the side of the road at the Ashline site. In the same month, someone attempted to break into the site at Ashline, which Mr McDonagh refused to comment on after receiving the solicitor’s advice. Concrete bollards were placed at the site by the Council but were moved using a forklift, an action which Mr McDonagh again refused to comment on.  

On the 1st December 2017, Mr McDonagh informed the Council by writing that he wanted accommodation provided for his family in a Traveller-specific development or a halting site. Mr O’Keeffe stated that Mr McDonagh had said in November 2017 that he would not consider any site other than that at Ashline. This action was commenced on 15th December 2017 and following a series of interlocutory orders requiring the removal of caravans and associated vehicles, was heard in June 2019.  

Issues:
The McDonaghs made three arguments in defence, firstly stating that they have an existing tenancy at No.1 Ashline which the Council have an obligation to reinstate and that they are entitled to occupy the Ashline site. The Court here dismissed this line of defence, stating that No. 1 was burnt out since 2013 and that if they had a tenancy at No.1, they would not be entitled to occupy caravans elsewhere on the site. Nor did the Court accept the Council’s argument that the tenancy was surrendered by Mrs McDonagh signing the form of surrender in November 2012. It was never signed by Mr McDonagh making it incomplete and therefore inadmissible. The Court also refused the Council’s argument that the contract of tenancy was frustrated, citing McGuill v Aer Lingus Teo (Unreported, High Court, McWilliam J, 3rd October 1983). It is clear therefore that the tenancy was surrendered by act and operation of law.   

The Court was satisfied that when No.1 Ashline was vacated in November 2012, the intention of the McDonaghs was that they were leaving permanently.  

The second line of defence pleaded by the McDonaghs was that Clare Co. Co. was estopped from asserting that the premises was abandoned in circumstances in which it requested the defendants to vacate, committing to refurbishing the demised premises. This was not made clear by the evidence, however. The Council did not ask them to leave, that was their decision.  

The third line of defence pleaded was that the Council acknowledged and committed to offering the McDonaghs permanent accommodation in a new house as a part of a development scheme at Ashline. While this is true, the Court noted that it doesn’t justify the occupation of the site by the McDonaghs in the meantime.  

The Reasoning of the Court: 
There are a number of strands to the counterclaim here. Those being that the defendants have a subsisting tenancy at No.1. As the Court has pointed out on this issue, there is a disconnect between the law and the facts, as a tenancy at No.1 is not what the McDonaghs wanted.  

The second strand of the counterclaim relates to the Council letter dated 9th January 2014. The defendants claim that they will be housed in Ashline under the Traveller-specific group housing scheme. This claim is based on the Clare Traveller Accommodation Programme 2014-2018 (TAP). The issue is whether the letter stating this gave rise to legitimate expectations that the Ashline site would be redeveloped as a Traveller-specific accommodation site. 

The Court here was unable to find in the above letter or TAP, a statement amounting to representation that the Ashline site would be redeveloped as a Traveller-specific accommodation site. To construe any such representation from the TAP would be inconsistent with the entitlements and requirement of the Council to perform and exercise its statutory functions and powers under the Housing Acts. What happened was that the Council acquired adjoining land in 2018 with the intention to build social housing and offer one of the houses to the McDonaghs. The Court is satisfied that there was no legitimate expectation that the McDonaghs would be housed in Ashline in a Traveller-specific scheme.  

The third strand of the counterclaim is that the plaintiff failed to properly implement its obligations under the Housing (Traveller Accommodation) Act, 1998, that the plaintiff’s proposals for the Ashline site breach the 1998 Act and that the plaintiff is not entitled to vary the TAP without due consultation and damages.  

The Court here looked at previous cases in the area to establish the nature of duties imposed on housing authorities by the Housing Act and the function of the Courts in reviewing the exercise of said duties. The defence’s counterclaim here states that the Council had consciously and knowingly acted in breach of its statutory duties, and in particular in breach of its obligations under the Housing Acts. Firstly, the Council promoted standard housing for members of the Traveller Community rather than Traveller-specific accommodation. Secondly, the Council failed to facilitate Local Traveller Accommodation Consultative Committee (LTACC) meetings during a time when it was proposing measures impacting TAP. Thirdly, that the Council acted in breach of its statutory duties in not allocating funding for Traveller-specific accommodation. Fourthly, the Council breached its statutory duties in purporting to re-designated Ashline without any consultation with the LTACC and finally, purporting to amend the TAP without consulting the LTACC.  

Citing the precedent of Glencar Exploration plc v Mayo County Council (No. 2) [2001] IESC 64 and Siney v. Dublin Corporation [1980] IR 400, the Court stated that the Council’s statutory obligations under the Housing Acts are matters of public law. The complaint here is that the Council failed to offer a fully diverse offering, not that the Council failed altogether to provide Traveller-specific accommodation. The Court here viewed this as a matter left by the Oireachtas to the discretion of Housing Authorities. The Plaintiff argued since the complaint is directed to the performance or non-performance of a public law duty, the plaintiff’s primary remedy, if any, is by way of judicial review and not a private law action. Secondly, it is submitted that the Court is invited to undertake an open-ended and rolling review of the making and implementation of Clare County Council policy. That, it is said, is not appropriate. The Court here is satisfied that Plaintiff is correct on both points. In terms of the second issue, the correctness of the Plaintiff’s submission is best demonstrated, in this Court’s opinion, by the examination of the plaintiff’s witnesses and the evidence led on behalf of the defendants. Ms Sarah Clancy, co-ordinator of the Clare public participation network, gave evidence of the difficulty in convening an LTACC in the absence of an organised Traveller community in Clare, and of her assessment of the effectiveness of the LTACC. She commented on the tension between the provision of social housing and Traveller-specific accommodation and suggested that the decision of the Council to use the Ashline site for social housing rather than Traveller-specific accommodation had been preceded by poor consultation practice. All of these matters probed by the cross-examination and addressed by Ms Clancy are policy considerations which, it is well established, are matters for the housing authority.

The judge states that the reliefs being claimed here are wholly vague and not tied to the particulars of alleged breach of a statutory duty. In this case, Ashline was previously included in the Ennis Town Council Development Plan zoned “T” and in the Clare Co. Co. as “residential”. Mr Liam Connolly, Council director of services, explained that the current zoning permits Traveller-specific accommodation. Had the defendants challenged this redesignation, then it would have been exposed by the answer that the zoning did not preclude the use of the site for Traveller-specific accommodation and not strictly “residential” use.  

The defendants here, in relation to the time limit, only stated that there was a continuing breach of statutory duty, which only goes to the allegation that standard housing was promoted over Traveller-specific accommodation. The core argument of the defendants’ case was that the Council acted in breach of its statutory duties in consistently electing not to draw down available funding allocated for the purposes of Traveller-specific accommodation. The defendants relied upon the answers given to a number of parliamentary questions which were said to show that the drawdown by the Council was consistently a fraction of the money allocated by the Department of Housing and Planning for Traveller-specific accommodation. In viewing the figures between 2009 and 2018, the funding allocation exceeded the funding drawdown. This suggests that there was money readily available which Clare Co. Co. did not avail of.  

The defendants’ misunderstanding rapidly became apparent from the evidence of Mr Niall O’Keeffe, an administrative officer with the Council, and Ms Fiona Mooney, now an administrative officer. The procedure is that housing authorities submit proposals for development which they propose to undertake, together with a budget. Proposals are submitted in January of each year and funds are allocated by the department in April or May. It is only when funds have been allocated that the Council can begin the process of designing and building the developments. As the expenditure is incurred by the Council, an application may be made to the department to recoup its expenditure. Because of the inevitable lag between approval by the department, construction of the project, payment by the Council, and eventual drawdown, the figures given for allocation do not represent money which is readily or immediately available to the Councils. The judge clarified that if there was money available to a housing authority from central government, a failure to draw it down would necessarily be subject to review by the Courts.  

Conclusion of the Court:  
The defendants’ counterclaim for declarations in relation to the implementation by the plaintiff of its obligations under the Housing (Traveller Accommodation) Act, 1998, although pleaded in terms of private law, is a public law challenge to the performance by the plaintiff of public law duties. Any challenge to an administrative decision is to be made by way of judicial review. The substance of the defendants’ challenge to the performance by the plaintiff of its statutory functions is that the Court should make its own appraisal, or review the plaintiff’s assessment, of the need for Traveller-specific group accommodation schemes in Co. Clare. This is not something for which the law allows.  

Much of the counterclaim based on the Housing (Traveller Accommodation) Act, 1998 and the Clare Traveller Accommodation Programme 2014 – 2018 is based on non-justiciable issues as to the formulation and implementation of policy and fundamental misunderstanding of the zoning of the lands and the availability of central government funding for the provision of Traveller-specific accommodation. Therefore, the judge here concluded that the counterclaim be dismissed, and a permanent injunction restraining trespass on the land be put in place.