The Gazette 1983

GAZETTE

N O V E M B E R

1983

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.

Recent Irish Cases

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

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

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