The High Court

Mongan and another v South Dublin County Council 

1995 No 124 JR 

31 July 1995 

BARRON J: 

The Applicants have been served with notices under Section 10(1) of the Housing Miscellaneous Provisions Act, 1992 directing them to move their caravans to Lynch's Lane Halting Site, Clondalkin. The Applicants are members of the traveller community and these proceedings are brought by them seeking various reliefs on the ground that they should not be required to move their caravans as directed by the notices. They seek various declarations. In the main what they seek is a declaration that the Respondent Council has a statutory duty to provide accommodation for travellers in their functional area. They seek a declaration that a temporary halting site is not sufficient performance of that duty and they further say that the site itself is inadequate and it is too large. They also seek an injunction requiring the Respondents to assess the needs of the Applicants and to take steps to ensure that the particular needs of the Applicants are met. 

The history of the Applicants themselves is that they have lived at various sites in or about the Clondalkin area for many years and they have been, as many others in their situation, subjected to harassment from time to time. There are allegations against them of causing insanitary conditions and infringing the rights of others. 

But essentially their housing is a problem which has to be faced. It is a problem which affects not only the present Applicants but other members of the traveller community. It has been realised for many years that it exists and that although there is not a history of nothing being done, it may well be that not enough is being done and what has been done has been done too slowly. But at the same time it seems to me that there has to be a proper understanding of what has to be provided. Until there is unanimity amongst the various local authorities as to the nature of this obligation, it is very difficult for any individual authority to know whether or not it is meeting its obligations. 

As I understand the situation, there is an obligation under Section 13 of the Housing Act, 1988 to provide halting sites for travellers but that is not an absolute duty, it is a duty to provide for those who are assessed under Section 9(1) of the Act as being homeless and when the local authority comes to make provision for the homeless and for those under Section 9 who require to be housed, they have to provide for travellers not a house but a permanent halting site. That is my understanding of the law. So if that is the situation there is nothing in those statutory provisions which suggest that the level of services to be provided with halting sites should be any less than the level of services to be provided with homes. In other words they have to receive permanent sites for their caravans in the same way as others receive houses. The quality of the services available at these sites must be the same as the quality of those services for whom houses are provided. The submission has been made that conditions at Lynch's Lane are better than those at the side of the road. I am quite sure that they are but I doubt that any local authority would seek to make such an argument if a house was provided which did not have what today is regarded as the normal services pertinent to housing. 

There are two basic complaints being made by the Applicants. The first is that the accommodation being provided at Lynch's Lane is inadequate and the second point which is being made is that the accommodation being offered does not pay attention or take into account traveller culture and identity. Specifically what is being said is that the services at Lynch's Lane are totally inadequate. In my view the evidence shows quite clearly that they are. The evidence, however, does show that plans are in being to upgrade those facilities and hopefully they will meet the quality of facilities which would normally be associated with permanent housing. So far as the assessment which is sought for the needs of the traveller community so far as their cultural identity is concerned, that is not something which the Act deals with. It may well that there will be no solution to this problem unless those given the authority to deal with the problem take these matters into account but for the moment there is no such provision under the Act and, in my view, the Applicants cannot refuse to accept proper accommodation, that is, a proper serviced site merely because in their view they do not want to go to it because they may have to share that site with others or for similar reasons. 

It seems to me that I should deal with the question of temporary sites and the size of sites because so far as the size of the site is concerned, my view on that is that that is a question of planning law. It is not a question about which complaint can be made by anybody who is being placed or offered a place on the site. The other point is that of a temporary site. It seems to me that a temporary site is a site which for some reason or other is one that will not be available permanently. It means that the facilities may be provided with this in mind not that they have to be any less. In the present case it is being accepted that there is an obligation towards the Applicant under Section 13. What has been offered although the Applicants do not want to accept it, meets this obligation. There has been an offer at a site at Kishogue which on the evidence has got all the necessary services. 

Again, one of the problems is whether or not the local authorities have to provide accommodation for every traveller who comes within the functional area. In my view, they have the same obligation as they have with those who are prepared to accept houses; it depends upon whether or not there is a sufficient supply. If there is not a sufficient supply then they have an obligation within their resources to ensure that provision is made for the future to deal with the problem. It does seem to me that if names are not put on housing lists that it is very difficult both for those who seek the accommodation and for the authority to determine those for whom provision should be made. I appreciate the problems that may exist by getting members of the traveller community to put their names upon a list but I have had evidence that there are annual assessments of the travellers in the area who require accommodation and it seems to be that there is nothing to prevent the local authority from automatically putting those persons on to a list. 

It seems to me that the reality of the matter is that the Applicants were entitled to refuse to be accommodated at Lynch's Lane upon the ground that the services there were inadequate but they were not entitled to refuse upon any other ground nor were they entitled to refuse the accommodation which was being offered to them at Kishogue. What I propose to do is to make an Order that those persons who are identified as being entitled to have sites for caravans provided for them under Section 13 are entitled to have the same services provided for them as would be provided for those persons for whom permanent housing is provided. In making that Order I am not saying that in an emergency where there is an immediate danger to health that temporary accommodation of either type cannot be provided with some limitation of services but if so the period of temporary provision would be dependant upon the nature of the emergency and would have to be strictly limited. There is no such immediate emergency here because unfortunately the situation has been known for a long time. As I have said the Council is prepared to offer a site at Kishogue and, in my view, there is no reason why that should not be accepted.