Jeffers v. Louth County Council [2001] IEHC 61 (5th April, 2001)

Judgment of Mr Justice Roderick H. Murphy delivered the 5th day of April, 2001 1. The Applicant is a resident of Drumlick Castle Bellingham which is in the County of Louth, and is the Respondent herein. The Respondent is endeavouring to accommodate families under its Traveller Accommodation Programme TAP (at a facility in the old railway station which is situate of a public road). These families are presently living on the roadside. The general issue before the Court is whether the Respondent can proceed under Section 13 (2) of the Housing Act, 1988 as amended by Section 29 of the Housing (Traveller Accommodation Act) 1998. 2. The particular issues involved in this application for interlocutory relief are whether a housing authority which seek to provide halting sites for travellers is obliged to consult with Councillors, local Consultative Committees and with the public in relation to temporary accommodation in such circumstances. An interim injunction was granted by O’Neill J on the 20th December last (see 14 below). (a) where the relevant housing authority has an obligation to investigate the necessity or otherwise for one or more additional traveller’s halting site. (b) where housing authority has a policy statement in its Traveller Accommodation Programme, whether an express endeavour to ensure full and meaningful consultation with interested persons or bodies including the public generally requires the housing authority, in implementing its Accommodation Programme, to consult with those persons or bodies. 3. The Local Government (Planning and Development) Act, 1963 places a general duty on a planning authority to take such steps as may be necessary for securing the objectives which are contained in the provisions of the development plan (section 22(1)). Moreover a local authority may not effect any development in their district which contravenes materially the development plan. 4. Part X of the Local Government (Planning and Development) Regulations 1994 applies to certain proposed development in the nature of public works which includes the construction or erection of a house or other dwelling and of a residual category specified, with certain exemptions, as “any other development, the estimated cost of which exceeds £50,000”(Article 130(1)). In such a case the local authority is required to publish notices of such development to certain defined bodies (Article 131 and 132). 5. The Housing (Traveller Accommodation) Act, 1998 provides that a relevant housing authority must assess accommodation needs for travellers and approve an accommodation programme. In relation to the assessment it must give notice to and inform the local Consultative Committee of its intention to make such assessment (section 6). The housing authority is obliged, pursuant to Section 7 of that Act, to adopt an Accommodation Programme on or before the 31st of March 2000 specifying the accommodation needs of travellers and the provision of accommodation required to address those needs for a five year period. 6. In the present case Louth County Council adopted a Traveller Accommodation Programme on the 24th of January 2000 having duly given notice in writing of its intention to do so to the bodies listed in section 8 of the Act. These bodies are the local Consultative Committee, such local community bodies as the relevant housing authority considered appropriate and all such other bodies that the housing authority considered appropriate. No issue has been taken by the Applicant with regard to this consultation. 7. The housing authority is obliged to take any reasonable steps as are necessary for the purpose of implementing the Accommodation Programme. A Local Traveller Accommodation Consultative Committee was appointed under section 21. The task of such committee is to advise the housing authority in relation to the preparation and implementation of any Accommodation Programme (section 21(3)(a)). 8. Section 29 of the 1998 Act amends the Housing Act, 1988 by the substitution of a new section 13 which applies to persons “belonging to the class of persons who, traditionally pursue or have pursued a nomadic way of life”. Sub-section (2) of the new section provides as follows:- “(2) a housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an Accommodation Programme within the meaning of section 7 of the Housing (Traveller Accommodation) Act, 1998 , and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.” 9. “Sites with limited facilities” means sites which, having regard to the temporary nature of such sites for the short duration of periods of use, have sufficient water, facilities for solid and liquid waste disposal and hard surface parking area for caravans (section 13(7)). 10. The issue in this case is whether the Respondents, in seeking to accommodate certain families at present on the roadside in at such a site, can do so under section 13 (2) of the Housing Act, 1988 without regard to the consultation requirements in the Traveller Accommodation Programme of the Respondent. 11 That Programme contains a policy statement that, within the resources available to it, the Council will provide adequate accommodation for all traveller families to whom it is deemed to have responsibility. In relation to the implementation of this policy the Council states that it will endeavour to ensure, inter alia, that:- “(ii) there is full and meaningful consultation with travellers themselves, traveller representative groups, statutory and voluntary agencies, the appropriate local traveller accommodation consultative committee, elected members, the public generally and any other interested persons or bodies.” It is clear that the local Consultative Committee, who may advise in relation to both preparation and implementation of any accommodation programme, must be notified. 12 . It seems that section 13 (2) of the Housing Act 1988 , as amended by the 1998 Act, does not exclude the obligation of the 1998 Act with regard to the consultation with the Consultative Committee. 13. The housing authority is further obliged to consult, in the implementation of the Programme, with other interested parties or bodies, including the public generally. This is not a statutory obligation but would appear to be a self imposed obligation on the housing authority. It represents to the public that it will endeavour to ensure such “full and meaningful consultation”. It is clear from the Affidavits filed in this matter that the Respondent housing authority did not, in fact, consult with the Applicant. There is no averment as to their consultation with other interested parties. 14. Mr Connolly, on behalf of the Respondent housing authority, reminds the Court that this is not a Judicial Review Application but rather an Application for Injunctive Relief and is based on the interim injunction granted by O’Neill J. on the 20th of December 2000. That injunction was in the following terms:- “ That the Defendants ... be restrained ... from carrying out any development on the lands at Drumlick, Castle Bellingham, Co. Louth unless and until the procedures prescribed by part X of the Local Government (Planning and Development) Regulations 1994 (S. I. No. 86 of 1994) have been followed by the Respondent from carrying out any further development on the said lands ... unless and until the procedures prescribed under the Housing (Traveller Accommodation) Act, 1998 have been complied with”. With regard to the injunction granted at (1) above I am not satisfied on the evidence in relation to the estimated costs of any other development that notices are required under Article 86 of the Regulations 1994. That relief is as follows:- (3) “Further, or in the alternative, an injunction restraining the Respondent, its servants or agents, licensees or anyone having knowledge of the making of the said order from carrying out any development at the said lands at Drumlick, Castle Bellingham, Co. Louth unless and until the consultation procedure referred to in the Louth Co. Council Travellers Accommodation Programme, 2000-2004 have been complied with.” 15. In his Affidavit Dr Brian Meehan, a planning and development Consultant, believed that the Castle Bellingham site is of County significance in the context of the stated objectives of the County Development Plan. It would, he avers, have been proper for an appropriate site selection process to be carried out with consultation with the relevant authorities pursuant to the Traveller Accommodation Programme, paragraph 2(ii) referred to above. In addition to the policy statement, at the level of strategy, the programme stated that the authority “ would seek to keep both the traveller community and the general public fully informed at all times as to its various operations under the Programme and will seek to achieve wider understanding and acceptance by both communities in respect of the needs, rights and legitimate concerns of the other.” He concludes by stating that the only halting site in County Louth is clearly of such significance in terms of planning and development as to warrant a statutory authorisation procedure, as referred to in the 1997 County Development Plan and the 2000 Travellers Accommodation Programme. 16. Dr. Meehan further avers that he is not aware of any halting site which has been developed by a local authority without requiring Part X of the Local Government (Planning and Development) Regulations, 1984, to be applied. An equivalent to Part X procedures is, in his opinion, required to be adhered to in this instance. On the above basis, the proposed halting site may or may not be allowed to proceed, subject to the outcome of that procedure. 17. It is clear that the Respondent housing authority has power, and, indeed, an obligation, to provide for traveller accommodation. It may very well be that a wider consultation process will necessarily prolong the implementation of the programme. Indeed, were the cost of the development to exceed £50,000 then the requisite notice and consultation required by part X of the 1994 Regulations would apply. Indeed, given the significance of the site and the averments of Dr. Meehan that he did not know any development of this nature to be done without such notice, it would, he says, be imprudent for the Respondent to proceed. . 18. In O’Nuallain -v- Dublin Corporation stated in (1999) 4 IR 137 at 145 Smyth J stating, in relation to those regulations and to the requirement that a copy of the plans be made available for inspection by members of the public: “However the provisions of article 132(2)(b) have not in my opinion been adhered to. The article provides for notice of proposed developments to be given to certain bodies but the notice that is to be given is to include certain matters which I am satisfied were not given, i.e. ‘a copy of the plans and particulars of the proposed development made available for inspection by members of the public in accordance with article 133’. ” In my opinion this is a mandatory provision under the regulations of 1994 and was not complied with, and is not of a technical or peripheral nature such as can be excused or overlooked in the instant case. The fact that the information given to the prescribed bodies indicates the location, nature and extent of the proposed development does not excuse the non-compliance with the provision hereandbefore cited from article 133(2)(b). 19. However consultation with the local Consultative Committee is required under section 21 (3) so as to allow the Committee to advise, not alone in relation to the preparation but also in relation to the implementation of any accommodation programme. I would, accordingly, grant an interlocutory injunction in terms of paragraph (2). © 2001 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII