THE HIGH COURT
		1997 No. 106 J.R.
BETWEEN
PATRICK MCDONAGH AND BRIGID MCDONAGH
		APPLICANTS
AND
CORK COUNTY COUNCIL
		RESPONDENTS

Judgment delivered on the 12th day of January, 1998 by Mr. Justice Kinlen

	By Order dated the 21st March, 1997 Mr. Justice Kelly granted leave to apply for various Orders of Judicial Review as set out in paragraph (d) of the Applicant's statement granting the application for Judicial Review.  The Applicants are a married couple who reside with their six children in Charleville, Co. Cork.  They reside in a caravan with their family on the side of the road and have done so since they married in 1985.  They do not want a halting site in which to put their caravan.  They wished to be housed in permanent housing accommodation.  The Respondents deny they have been so long waiting and that they first appeared on the list as requiring housing in 1991.  However, this is immaterial.  Both sides agree that Mr. and Mrs. McDonagh are living in appalling conditions on the roadside.  One of their children was killed in a motor accident near their caravan and the present conditions are dismal in the extreme for Mr. and Mrs. McDonagh and their children.  They did apply either in 1985 as they say or in 1991 as the Respondents say for housing.  However, it is clear they are now at the top of the housing list and that they are undoubtedly the number one priority of the local authority to provide them with houses.  They were supported in this belief by statements made by various members of the Cork Council and also by various things said by Social Welfare Officers.  In fact they were told to look out for a house and they did so and identified one but it could not be purchased because it fell outside the county boundary, therefore, the local authority could not procure it.  However, in the summer of 1996 the Applicants identified a house at No. 47 Harrison Place, Charleville which suited their needs.  They notified the Respondents and the Respondents proceeded to purchase the premises.  Now the McDonaghs believed it was being purchased for them because of their dire need.  The local authority say no, it was being bought for the purpose of being put into their stock of housing to deal with the needs of their administrative area.  There were told that they would be in possession of the house by December of last year.  However, when the local authority got possession of the house they discovered that it needed a lot of electrical work and the Applicants were notified that the house would not be ready until January.  When it became known to the people living in this private residential area that one of the houses in their estate was about to be handed over to people they would regard as travellers.  Technically, I do not think this is true.  They do not wish to be travellers.  They do not wish to have a halting site.  They do not wish to be nomads.  They want to have a house for themselves and their children.  However, when the word got out that the County Council were going to put the McDonaghs into No. 47 Harrison Place, it would be fair to say that all hell was let loose.  Numerable people made application to the County Council and sent letters and newspaper reports and in his affidavit on behalf of the County Council made by Mr. Patrick Lane the following was stated and I quote:-

	"Following the purchase of the house subject of these proceedings and at the time the contractor engaged to carry out repairs to the house commenced work thereon the residents in the area began a protest and mounted a 24 hour vigil on the property to prevent anybody taking up occupation.  Residents in the area had become aware that it was the Council's intention to allocate the house to a travelling family."

They are not in fact travellers, they intend to be settled but to continue with the affidavit a petition was signed by 35 members of the house holders.  In addition thereto the Counsel received a number of letters of protest against the proposed letting of the premises and he refers to a copy of the petition and copies of the letters which include one from a doctor saying that a lady who is in ill-health that she was so terrified that her health might further deteriorate.  He proceeds and I quote:-

	"I say the two deputations from the residents of the area met the Council.  The first meeting took place on the 20th January, 1997 before the Council's Northern Committee meeting.  Between 30 and 40 residents attended and they voiced through their elected member their objections to the letting.  Fears were also expressed that physical force might be used to prevent the Applicants from taking up the letting.  The residents also demanded that work on the house cease.  A second meeting between residents and members of the Council occurred on the 3rd day of February, 1997.  The residents complained about the acquisition of a house in a private estate and made representations that they should have been consulted about the matter.  Suggestions were made that the Council should sell the house to the residents.  An alternative proposal was made that the Council should furnish to the residents a list of the names of people likely to be short listed as prospected tenants for the house.  These demands were not accepted and no concessions were made."

At a later paragraph in his affidavit he says:-

	"I say and belief that the Council's action in deciding not to proceed with the offer of a tenancy in the premises of No. 47 Harrison Place, Charleville to the Applicant was grounded upon a genuine and well founded apprehension that serious physical violence was likely to ensue if the allocation proceeded.  It was the Council's belief that to proceed with the allocation of the house would lead to injury to the McDonaghs and their family.  It has been the genuinely held belief within the Council that in order to succeed in providing the necessary accommodation for the travelling community that any steps taken would have to be within a community friendly manner.  It is believed that now that the travelling families nor the community are best served by proceeding to attempt to solve the problem in the face of opposition.  Council is presently engaged in the construction of a housing scheme at Baker's Road in Charleville.  Work on the site commenced in February of 1997 and hoped to be in a position to offer tenancy in one of the houses at Baker's Road to the McDonaghs in the Spring of 1998."

	This case has been very fully and ably argued before me by Ms. Aileen Donnelly on behalf of the McDonaghs and Mr. Patrick Butler on behalf of the Cork County Council.  They have put many interesting positions before me.  Indeed I considered reserving my judgment but towards the end of it I clearly decided that I could deal with it on the submissions offered by Counsel on both sides.
	Firstly, I think that Mr. Lane understandably but inaccurately stated the reasons for refusing to give this house to the McDonaghs.  There is no doubt that the McDonaghs believed they were going to get this house.  They chose it by the request of the local authority.  The local authority bought it and intended to give it to them.  In a letter of the 7th February, 1997, Mr. Lane who is an administrative officer with the Cork County Council writes to Mr. Peter Wise who is Solicitor of the Law Centre in Cork in relation to Mr. and Mrs. McDonagh that part of it reads as follows:-

	"It is accepted that your clients are in need of re-housing.  The Council purchased the house at No. 47 Harrison Place, Charleville to add to the housing stock and it was the intention to offer tenancy to Mr. and Mrs. McDonagh.  As you are aware, however, no formal offer was made.  Obviously, the objections raised by the residents of Harrison Place are totally outside the Council's control.  In the interest of public safety and in particular that of your clients and their family it seemed inadvisable to proceed with the offer of tenancy of this house to Mr. and Mrs. McDonagh.  The siting of the McDonagh family in a hostile situation did not appear to be the solution to their housing problem."

	Unfortunately, probably everyone in the country of the settled community belong to the organisation known as NIMBYS (Not in My Back Yard).  Everyone agrees that people should not in this day and age be left in caravans or old fashioned tents on the edge of the roadside.  Everyone agrees and it is the law that they must be housed.  Section 13 of the 1988 Act provides for the provision of halting sites for people of this nature whose desires are basically nomadic.  However, in all the cases there have been local complaints.  These are perfectly understandable.  They feel that settled itinerants beside them will create dirt, may increase the crime in the area and will probably diminish the value of the house which they may have devoted a lifetime to buying for themselves and their heirs.  There have in fact been cases where halting sites have been imposed against the will of the local community and in one case at least a County Manager was picketed and retired prematurely.  The reaction of the public is understandable.  However, these people are Irish people also.  We treasure all our people equally.  They must get the same but no more than there fellow citizens.  Mr. and Mrs. McDonagh are not looking for a halting site.  They are, like any other citizen, entitled to apply for a house.  The local authority accepts that they are living in appalling conditions and that they have priority and are number one on the priority list.  However, it is quite clear in this case that while there was possibly an expectation that they would get the house which they had chosen themselves, there is nothing in writing or anything sealed by the County Manager which would entitle them to specific performance.  This Court cannot order the local authority how to exercise its respective powers and direct for a certain person to be allocated a certain house in the absence of a specific contract.  However, what happened in a number of cases and in particular the Meath County Council case declarations were given by my colleague, Mr. Justice Flood, which was followed by the President of the High Court in O'Brien -v- The Wicklow UDC - Judgment delivered on the 10th June, 1994 and more recently in Ward -v- South County Dublin County Council, my colleague Ms. Justice Laffoy on the 31st July, 1996.  The County Council must not take into consideration threats of violence or any form of intimidation.  They had a statutory duty to provide for the housing needs of all those qualified.  In this case there is no doubt that Mr. and Mrs. McDonagh qualify.  It is therefore the duty of the local authority to provide housing for this unfortunate family.  However, it is not for this Court in the absence of an enforceable contract to direct that they must provide them with No. 47 Harrison Place.  The Court directs that they must be housed before the 25th December.  It is up to the local authority to implement that on whatever stock of housing presently available or becomes available by that date.  I will not conclude this case but will adjourn it to the 1st day of next term to ensure that this Order be carried out.
	On resumption on the 12th January, 1998 the Court was delighted to learn that the McDonagh family have been provided with suitable accommodation and are well settled.  The Court congratulates the County Manager and local authority on this result.  The Court awards costs to the applicants who are on legal aid.