344 / 346
GAZETTE
N O V E M B E R
1983
Recent
Irish
Cases
HOUSING — Duty of Housing Authority
under Housing Act, 1966, to allocate the
houses which they have provided in
accordance with a statutory scheme of
priorities to suitable Applicants who fit
within designated categories and who
reside within such Authority's functional
area.
Buncrana Urban District Council as a
Housing Authority under the Housing
Act, 1966, has provided and made
available for allocation and letting 28
houses. In accordance with Section 60 of
the Act they had a statutory scheme of
priorities under which preference in the
allocation of houses was to be given to
suitable Applicants in accordance with
the category into which each Applicant
fitted. First preference was given to
Applicants living in dangerous and unfit
houses, last being given to those in need
of houses on medical or compassionate
grounds. Up to September 1978, the
scheme contained a residential clause,
which provided that before an Applicant
could qualify for a house, he or she must
have been resident within the town or
functional area of the Urban District
Council for a specified period of time. On
18 September 1978, the Council resolved
to remove the residence clause from its
scheme and this was subsequently
approved by the Minister for the
Environment.
In July 1980, in the case
of McDonald -
v-
Feely and Dublin County Council,
the
Council appealed to the Supreme Court
against an injunction restraining the
Council from removing an itinerant
family from land occupied by them as an
encampment. The Chief Justice in
delivering the unanimous decision of the
Court made the following reference to the
residence clause in that Council's scheme
of letting priorities:—
"It does not seem to me to matter
whether in fact the Plaintiffs husband
had been born in the County of Dublin
and thereby qualified his family for
housing by the County Council, or
whether the family had been four years
resident somewhere in the County or
whether in fact they were not qualified —
at least their housing needs deserve
consideration and attention if a scheme of
priorities, paying due regard to the
primary objectives laid down in Section
60(3) were effectively to be operated".
In August 1981, the Department of the
Environment sent a circular letter to all
housing authorities which contained the
foregoing extract from the judgment of
the Chief Justice and requested Local
Authorities, which had a scheme of
letting priorities containing a residence
clause, to review such schemes. This
circular was considered by the Chief
Justice in the instant case.
He stated he did not wish to refer to the
particular facts of the
McDonald
case
except to say that they were particular
and unique. However, the circular letter
appeared to attribute to the quoted
portion of his judgment a meaning which
it did not bear, and which was never
intended by him. What he had in mind,
and what he hoped to convey in his
judgment was that irrespective of
whatever schemes of priorities were from
time to time in operation, each Housing
Authority must have regard to those who
at any particular time were in their
functional area and were in need of
housing, even if such people could not be
housed under an existing programme and
in accordance with current priorities their
existence and needs must be borne in
mind for the future. It was not intended to
suggest that a housing authority need not
have regard, as a matter of priority, to
those in their functional area who had
been resident or domiciled there for a
particular period of time. They had to
have regard, however, to the fact that the
housing needs in their area were
continuing to grow, if that be the case, or
to change, and accordingly, could not
ignore the fact that there were people
without houses, even though at a
particular period of time they did not
qualify under an existing scheme. He was
surprised to learn that the
McDonald
case had been regarded as a decision to
the effect that the Housing Act and, in
particular Section 60, is to be interpreted
as relieving a housing authority of a
primary responsibility to satisfy the
housing needs of those in its functional
area. In his view, this decision had no
such effect, on the contrary a housing
authority's obligation is to have regard to
the housing needs which exist or are likely
to exist within its functional area. A
housing authority under the Housing Act
of 1966 could not lawfully have regard to
other than the housing needs which exist
or are likely to exist within its functional
area.
HELD — The High Court had come to
the correct view in deciding this case. The
Buncrana Urban District Council are not
entitled to house people who are not
resident in its functional area. The duty of
the Council is to allocate the houses
which they had provided in accordance
with a scheme of priorities which enable
them to house suitable Applicants who fit
within the designated categories and who
reside or are domiciled within the
functional area of the Council.
The appeal was therefore dismissed.
McNamee and Anor. -v- Buncrana
Urban District Council - Supreme Court
(per O'Higgins C.J. Nem. diss.). 30 June.
1983 - unreported.
Daniel Brilley
CERTIORARI — prisoner on temporary
release from St. Patrick's Institution
arrested, further charged and remanded to
St. Patrick's where the Governor treated
the arrest on the latter charges as termina-
ting the temporary release. Revocation of
the temporary release was held to have
been made in accordance with Law.
On 12 January, 1981 Michael Murphy,
then between the ages of 17 and 21 years,
was convicted of an offence for which he
was ordered to be detained in St. Patrick's
Institution for a period of 12 months.
Allowing for remission, that sentence
could have expired on 22 October, 1981,
but on 18 May, 1981, pursuant to the
provisions of the Criminal Justice Act,
1960, the Governor of St. Patrick's
pursuant to the Prisoners (Temporary
Release) Rules 1960(S.I. No. 167of 1960)
informed Murphy that he was being
released from 19 May, 1981 to the
expiration of the sentence on 22 October,
1981 "for the purpose of re-entering into
the c ommun i ty under Intensive
Supervision" and that his release was
subject to certain conditions including, in
particular, keeping the peace and being of
good behaviour during the period of
release.
On 15 June, 1981, whilst on temporary
release, Murphy was arrested under
Section 30 of the Offences Against the
State Act, 1939, and charged with
attempted murder and possession of a
firearm with intent to endanger life. He
was remanded in custody to St. Patrick's
Institution and on admission there was
treated as a prisoner on remand and
required to wear appropriate clothing.
On the following day, two officers of the
Institution gave him clothing to wear
appropriate to a person who had been
sentenced. He was told that since the
Gardai had brought him back this was
the clothing he would have to wear.
On 19 June, 1981, the Governor
informed Murphy that he was being kept
in custody because of the seriousness of
the offences alleged against him and with
which he had been charged.
Murphy applied in the High Court on
26 June, 1981 for bail but was refused on
the grounds that he was serving a
custodial sentence. A further application
for bail was made in the High Court on 9
XLI