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Brady v. Cavan County Council [1999] IESC 49; [1999] 4 IR 99; [2000] 1 ILRM 81 (17th June, 1999)
THE
SUPREME COURT
Appeal
No. 7/97
Hamilton
C.J.
Denham
J.
Barrington
J.
Keane
J.
Murphy
J. (
diss.)
BETWEEN
PATRICK
JOSEPH BRADY & ORS.
Applicants/Respondents
AND
THE
COUNTY COUNCIL OF THE COUNTY OF CAVAN
Respondents/Appellants
[Judgments
by Keane J. and Murphy J. (Dissenting); Hamilton C.J., Denham J. and Barrington
J. agreed with Keane J.]
JUDGMENT
delivered the 17th day of June, 1999 by Keane J.
1. The
facts in this case are not seriously in dispute. The evidence in the High Court
satisfied the learned trial judge that the roads in County Cavan used by the
applicants to get to and from their houses had deteriorated through lack of
repair and maintenance to such an extent that they were, at the time of the
hearing, dangerous to vehicles. That she was entitled so to find was not
disputed on behalf of Cavan County Council, the appellants in these
-2-
proceedings
(hereafter “the Council”) or on behalf of the Attorney General who
intervened in the proceedings and was heard by this court because, as it was
submitted on his behalf issues of general public concern were raised.
2. In
an affidavit, the County Engineer, Mr. John Tiernan, said that there were
approximately 1,350 discrete county roads in County Cavan, in addition to
regional and national roads. Approximately, 600 of them, including those the
subject of these proceedings, were deemed at that time to be in “very
poor or critical condition”. The cost of bringing these roads to a
satisfactory condition would be in the order of IR£40 million. He also
said that the roads in this area, because of weak soil conditions, increased
axle loading and under funding were collectively the weakest link in the chain
of the entire road network in the country.
3. In
order to deal with this, Mr. Tiernan had recommended that an eight year
recovery programme should be adopted by the Council, requiring a total
expenditure of IR£9.6 million per annum for the regional and county roads
for each of the eight years. He said that:-
“Based
on the current finances available and applying the most optimistic projections,
it would take 22 years before the entire road network in County Cavan could be
brought into satisfactory condition.”
-3-
4. The
total funding available to the Council from all sources, he said, represented
just over
53%
of
the amount required to implement the programme. Mr. Tiernan said that, in
deciding which roads should be given priority, the Council took the following
matters into account:-
(a)
the degree of deterioration of the road in question;
(b)
the number of families availing of the road;
(c)
the needs of industry and employment;
(d)
the types of traffic using the road;
(e)
the volume of traffic;
(f)
whether there exist particular cases of social or medical needs;
(g)
the potential for tourism development;
(h)
representations from local elected representatives;
-4-
(i)
representations from private individuals etc.
5. It
was also not in dispute that the Council has only three sources of income to
meet its admitted statutory responsibilities in this and other areas: the
imposition of service charges, the levying of rates and rate support and other
grants from central government. The service charges are levied in respect of
water supply, sewerage and refuse collection. Since the abolition of domestic
rates and the determination by the courts that rates on agricultural land were
unlawful, the County Council is confined to levying rates on commercial
properties. The evidence was that the commercial rateable valuation per mile of
county and regional road in Cavan was the 23rd lowest in the country and that
to raise the money required for road repairs through rating would necessitate
raising those rates by approximately £92 bringing the total rate to a
figure in excess of £122 for a period of eight years.
“It
shall be the duty of every county and district council, according to their
respective powers, to keep all public works maintainable
-5-
at
the cost of their county or district in good condition and repair, and to take
all steps necessary for that purpose.”
7. The
works referred to in this provision include roads, by virtue of s.109.
8. A
statutory duty to keep the roads in their county in good condition and repair
was thus clearly and unambiguously imposed on the Council. While other
statutory provisions have been enacted since then concerning the repair and
maintenance of roads, it is indisputable that the Council remains subject to
that statutory duty and, as the evidence before the High Court established,
that the roads were in a serious state of disrepair. The single issue in this
appeal is as to whether the applicants were entitled to an order of
mandamus
requiring
the Council to comply with their statutory duty. The trial judge held that they
were and, in the result, made an order in the following terms:-
“The
court did grant an order of
mandamus.
“AND
IT WAS ORDERED accordingly that (the Council) put into good condition and
repair the public road between Ash grove and Staghall Belturbet in the County
of Cavan...”
-6-
The
order of
mandamus,
in
essence a command issuing from the High Court and directed to a person or body,
requiring him or them to do a particular specified act which appertains to his
or their office and is in the nature of a public duty, has always been regarded
by the law as discretionary in its nature. That was clearly the case with the
prerogative writ of
mandamus
(see
Julius
v. Bishop of Oxford
(5
AC 214 at p.246)) and, in my view, remains the law, although the remedy now
takes the form of an order of
mandamus
by
way of judicial review.
9. One
of the grounds on which the courts declined to exercise their discretion in
favour of granting the order was, if established, the futility of so doing.
That, it is claimed on behalf of the Council, is the position in this case.
10. The
leading authority is
Re:
The Bristol and North Somerset Railway Company
[1877] 3 QBD 10
where
Cockburn, C.J. said:-
“It
would be idle to make this rule absolute f in the end there would be no
possibility of enforcing obedience to the mandamus. The Bristol and North
Somerset Railway Company is virtually defunct. ft has no power of raising
money. its share capital is spent and its borrowing powers are exhausted. ft
has parted with the possession and use of the railway in perpetuity to the
Great Western Railway Company. The affair was bankrupt, and it was
-7-
only
by the Great Western Railway Company ‘s taking it in as part of their
system that the line could continue to exist. Under these circumstances, If the
rule were made absolute, how could the
mandamus
be enforced? The company has no funds or property except that airy nothing, the
reversion after a perpetuity. This Court cannot put people in prison for not
complying with an order when they have no means of doing so.”
11. The
leading Irish authority on the topic is the decision of the former Supreme
Court in
The
State (Modern Homes (Ireland) Limited v. Dublin Corporation
[1953] IR 202, the facts of which are well known and can be shortly summarised.
The defendants, Dublin Corporation, as the planning authority for their area,
had resolved to make a planning scheme under the provisions of the Town and
Regional Planning Acts, 1934 and 1939. That entitled them to require buildings
erected without their permission in their area to be pulled down or altered.
But it also obliged them to make the planning scheme “with all convenient
speed” and submit it to the Minister for Local Government for his
approval. Although the defendants had passed the appropriate resolution in
1936, by the year 1950 they had failed to make the development plan and the
prosecutors, who had been refused permission for various buildings which they
proposed to erect or had been subjected to
-8-
conditions
in respect of their erection, complained that they had been adversely affected
in their business operations by the failure of the defendants to make the
planning scheme. Their application for an order of
mandamus
was
resisted on the ground
inter
alia
that
it would be futile to issue the order.
12. Maguire
CJ speaking for the court (Murnaghan, O’Byrne, Lavery and Kingsmill Moore
JJ) said:-
“It
is argued that there can be no certainty that the scheme will be made even f
the order of
mandamus
is issued. It is, of course, correct that an order will not be made fit is
clear that it would be impossible of performance by reason of the circumstances
that the doing of the act would involve a contravention of law or if the
defendants have not the means of complying with the order...”
13. Having
cited the passage just quoted from the judgment of Cockburn CJ in
Re:
The Bristol and
North
Somerset
Railway
Company
he went on:-
“There
are other cases to the same effect. The position here is far different. (The
defendants) are asked to carry out their legal obligation and they have the
means to carry out the order. It is to be assumed that they will obey an order
of the Court to do that
-9-
which
is their statutory duty to do. The argument appeared to be that if the Council
refused to obey the order of the Court there would be no means available to the
Court to compel them to do so, or to see that the scheme was made. (Counsel for
the defendants) argued that unless the court could put machinery in motion to
prepare a planning scheme f the Council refused to obey an order to do so that
it should not make the order asked. This argument is based on a misconception
of the position. If those who are held to have failed in a public duty prove
recalcitrant the Court has ample powers to compel compliance with its order and
does not necessarily seek other means of having the duty performed.”
14. As
the Chief Justice there makes clear, the defendants in that case had the
resources necessary for the making of a planning scheme: the argument on their
behalf was that, since they were the only body under the statute capable of
making a scheme, the court would be powerless if they chose to disregard its
order. It is hardly surprising that this bold proposition was unanimously
rejected by the court.
15. In
this case, the Council have never suggested that they would defy any order the
courts might choose to make. They rest their opposition to the making of an
order of
mandamus
on
an entirely different ground, i.e. that, given their
-
10 -
relatively
small rating base and the failure of central government to advance them the
necessary funds by way of grant, the only way in which they can fulfil their
statutory duty, within the means available to them, is by tackling the road
repair programme over a period of years and endeavouring to apply what
resources they have in a rational and systematic order, having regard to the
various priorities identified by the county engineer. To select one strip of
roadway, from approximately 600 acknowledged to be in very poor condition,
under the threat of legal proceedings would not, they say, ensure the
fulfilment of their statutory duty: on the contrary, it would simply mean that
their admitted responsibilities were being discharged in a haphazard and
arbitrary manner by the elevation of this particular strip to an unjustified
priority in their road repair programme.
16. Whether
or not that affords a legal ground on which the High Court should have
exercised its discretion to refuse the order of
mandamus,
there
can be no doubt that its factual basis is correct and unchallenged. The only
effect of the order of
mandamus
if
complied with, will be the repair of the strip of road referred to in the
order. Unless the necessary funds are provided by the Government, the rest of
the road network in County Cavan will remain in a state of unacceptable
disrepair in the future and the order will thus fail to secure the compliance
by the Council with their statutory duty. It has not been seriously suggested
that it is a practical proposition for the Council to impose
-
11 -
the
colossal rating burden already mentioned on the relatively small number of
commercial businesses in County Cavan.
17. The
learned High Court judge, when she came to consider the practicalities of
making the order sought, said:-
“The
Oireachtas having imposed and continued a statutory obligation on a local
authority to maintain roads, must, as long as that obligation remains
unqualified make it possible for the local authorities to perform its statutory
duties. Pre-1978 the local authority would have had to increase its rate to
discharge its obligations. But since the elimination of a broad based rating
system it is no longer possible for a County Council to do this. The central
fund therefore must make up the shortfall. This is not a case of telling the
government how it must spend money. It is a case of the Oireachtas having
imposed a statutory duty on local authorities, being required to provide the
means of carrying out that duty.”
18. The
Oireachtas is not a party to these proceedings and, presumably, having regard
to the separation of powers, could not be. Neither is the Government or the
Minister for the Environment. The Attorney General
-
12 -
appeared
for the first time in the proceedings in the course of the appeal to this court
and then only in an
amicus
curiae
role.
It may be, for all we know, that these bodies would, in response to the order,
provide the Council with the necessary funds, but neither the judgment in the
High Court nor the arguments advanced on behalf of the applicants in this court
offer any guidance as to what is to happen if they do not. Unless there was
coercive authority to the contrary, I would not be disposed to hold that the
court should bring the rigours of
mandamus
to
bear on a public authority where it is acknowledged that they have not the
means to comply with the order and that its successful implementation depends
on the co-operation of other bodies who are not before the court.
19. The
decision of a divisional court and the Court of Appeal in
The
King (Westropp) v. County Council of Clare [1904] 2 IR 569
is, however, relied on by the applicants as establishing that
mandamus
is
indeed an appropriate remedy in circumstances such as the present. In that
case, a ratepayer, whose lands adjoined a road, complained on many occasions of
its condition and called on the County and District Councils to put it into,
and maintain it in, proper repair. The councils having failed to do so, he was
held entitled to a writ of
mandamus
commanding
the councils to put the road in proper repair. Emphasis was laid in the
judgments both of the divisional court and the Court
-
13 -
of
Appeal, not merely on
s.82 of the 1898, but also on s.81 which provides that:-
“Where
a mandamus is issued by the High Court to any county or district council, and
the council fail to comply therewith, the Court may appoint an officer, and
confer on him all or any of the powers of the defaulting Council which appear
to the Court necessary for carrying into effect the
mandamus.”
20. The
case is, accordingly, an authority for the granting of an order of
mandamus
against
a County Council which has failed to comply with its statutory duty under s.82
of the 1898 Act. However, in order to determine whether it is applicable to the
circumstances which have arisen in this case, the facts must be considered in
more detail. The County Council had entered into a contract for the repair of
the road for five years with a man who subsequently became incapacitated by
mental illness. The council did not replace him and as a result the road
deteriorated to such an extent that it was described as “bad and
dangerous”. In the course of his judgment in the Court of Appeal,
Fitzgibbon LJ pointed out that, although the council had eventually obtained
another contractor, even his contract did not oblige him to put the road into
“good
-
14 -
condition
and repair” within the meaning of the statute which, given its neglected
state, would have effectively meant the restoration of the road.
21. There
was, accordingly, no question in that case of the council not having the
resources to carry out the work: the ruinous condition of the road was due to
the failure of the Council to replace the contractor who had become
incapacitated, although there was no suggestion that they were unable to
replace him, and to their further failure to ensure that the new contractor was
employed to restore the road to its former state. Nor was there any question in
that case of a particular landowner seeking to have the stretch of road
adjoining his land given priority over all the other roads in a similar state
of disrepair in the county. Having regard to its particular facts, it cannot be
regarded as a conclusive authority in favour of the proposition contended for
on behalf of the applicants in this case. There are, in any event, doubts as to
its correctness to which I shall return.
22. The
question as to whether a
mandamus
should
issue because of the alleged default of a County Council in repairing the roads
in their area was also considered by the King’s Bench Division in
The
King Hewson) v. The County Council of Wicklow
[1908] 2 JR 101. In that case, the owner of a house near Greystones in County
Wicklow complained that the County Council had failed to keep a road or track
leading from a public road to the house in proper repair and condition. An
application to make absolute a conditional order of
-
15 -
mandamus
directing
the County Council and the Rural District Council to put the road into repair
was refused
inter
alia
because
the road was not a public road. It also appeared that the effect of granting
the order would be to compel the expenditure on roads of a sum in excess of
that permitted by
s.27(2) of the 1898 Act and on that ground also the
divisional court was of the opinion that an order of
mandamus
should
not issue. That subsection was repealed by the
Local Government Act 1925, save
in so far as it applied to the City and County of Dublin, but the judgments of
Lord O’Brien LCJ and Gibson J contain passages which are of some
relevance to the present case. The former made it clear that the order should
not be granted since it would be “ineffective”. He added:-
“Indeed,
in the exercise of our discretion, I think we ought to refuse this application
as, having regard to the inadequacy of the funds sanctioned by the Local
Government Board in relation to roads, any attempted application, distribution,
or re-distribution of them with reference to the so called road in question
would be calculated under the circumstances of the present position, to create
great confusion, embarrassment and public prejudice.”
-16-
23. I
see no reason for supposing that, confronted with the financial constraints to
which the Council are subject in the present case and the consequences of
making the order sought, the Lord Chief Justice would have reached any
different conclusion.
24. It
should also be noted that, in that case, it was accepted that the relevant
expenditure limits could be exceeded if the consent of the Local Government
Board was obtained. The comment of Gibson J. is of interest:-
“The
limit of local expenditure has been reached. Assuming that the trifling balance
stated in the affidavits exists in fact (and it is said that it does not, as
there was a mistake in the figures), it would be barely sufficient to meet
urgent and unexpected casualties. Can or ought the District or County Council
to be compelled by
mandamus
contrary to their own judgment, to apply for such consent? Should the
prerogative writ be issued on the chance of the Local Government Board allowing
the statutory limit to be exceeded? Want of ability to comply with mandamus, if
allowed, is a good answer to an application for the writ.
Bristol
Railway Case
.
In
Westropp’s
Case
none of these difficulties were raised or considered.”
-17-
25. Two
recent decisions, one Irish and one English, were also relied on by the
Applicants. The Irish authority is the decision of the High Court in
Hoey
v. Minister for Justice
[1994]
1 ILRM 334. In that case, two solicitors practising in Dundalk sought an order
of
mandamus
requiring
the Minister for Justice to direct Louth County Council to provide
accommodation for the Circuit Court in Drogheda. The courthouse in Drogheda was
in such a serious state of disrepair that Drogheda Corporation had served a
Dangerous Buildings Notice on the County Council and the sittings of the court
were transferred to Dundalk. Under section 3(1) of the Courthouses (Provision
and Maintenance) Act 1935, the County Council were required to provide
courthouse accommodation for the sittings of any court held in their functional
area
“as
the Minister shall direct either generally or in any particular case
“.
In purported exercise of his powers under this provision, the Minister informed
the County Council that he did not require them thenceforth to provide
courthouse accommodation at Drogheda for sittings of the Circuit Court. It was
stated on his behalf that he did so because sufficient funding had not been
provided by the exchequer for the necessary repairs to the courthouse. Lynch J.
held that the Minister was not entitled to give such a direction, saying:-
“It
is quite clear that the obligation under the 1935 Act of providing, maintaining
and financing suitable courthouse
-
18 -
accommodation
rests on the local authority. It is not open to the executive by arrangements
made with the local authority or by promises made to the local authority to
relieve such local authority from the obligations expressly imposed upon them
by the 1935 Act.”
26. He
accordingly granted an order of
mandamus
requiring
the Minister to direct the County Council to provide courthouse accommodation
in Drogheda.
27. That
case is, in my view, entirely distinguishable from the present case. The
Minister was seeking to do what in law it was held he could not do, i.e.
exonerate the County Council from their statutory duty of providing and
maintaining in repair suitable courthouse accommodation in a venue lawfully
designated for sittings of the Circuit Court. The Council in this case make no
claim to be relieved of their statutory obligation to keep the roads in their
county in proper repair and condition: they say no more than that the granting
of an order of
mandamus
in
the form sought by the Applicants will be ineffectual to secure compliance with
their statutory duty.
28. The
English case is
R.
v. East Sussex County Council ex parte Tandy
[1998] 2 All ER 769. In that case, the applicant was a schoolgirl who suffered
from a condition called myalgic encephalomyelitis (ME) since she was seven, in
consequence of which she found it very difficult, and at times impossible to
-19-
attend
school. The respondents, as the local education authority, were subject to a
statutory duty to provide education for children in their area who by reason of
illness could not otherwise have received it. In pursuance of the statutory
scheme, the local authority provided five hours a week home tuition for the
applicant. Following a cut in the local authority’s home tuition budget
from £100,000 a year to £25,000 a year, the hours of home tuition
were reduced from five hours to three hours per week. It was acknowledged on
behalf of the Council that the cut had been dictated purely by financial
considerations and not by the child’s illness or educational needs. The
House of Lords unanimously rejected a contention on behalf of the local
authority that the lack of resources precluded any statutory duty arising to
maintain the home tuition at a level required by the child’s educational
needs. In the course of his speech, Lord Browne-Wilkinson said:-
“My
Lords, I believe your Lordships should resist this approach to statutory duties.
First,
the county council has as a matter of strict legality the resources necessary
to perform its statutory duty under s. 298. Very understandably it does not
wish to bleed its other functions of resources so as to enable it to perform
the statutory duty under
-
20 -
s.298.
But it can, f it wishes, divert moneys from other educational ‘or
other’ applications which are merely discretionary so as to apply such
diverted moneys to discharge the statutory duty laid down by s.298. The
argument is not one of insufficient resources to discharge the duty but of a
preference for using the money for other purposes. To permit a local authority
to avoid performing a statutory duty on the grounds that it prefers to spend
the money in other ways is to downgrade a statutory duty to a discretionary
power.
While
I would not quarrel with that approach in any way, I am satisfied that it has
no application to the present circumstances. There is no suggestion in this
case that the Council can meet the huge financial costs of the road repair
programme by diverting resources from other applications which are merely
discretionary: closing down a public library in Cavan for a day or two each
week is not going to have any significant effect on a repair bill of IR£30
million.
I
am satisfied, that while the granting of
mandamus
is
a discretionary remedy, the learned High Court judge erred in principle in the
manner in which she exercised that discretion, having regard to the futility of
granting the order
-21-
where
the Council had not the means to carry out their undoubted statutory duty.
The
Council and the Attorney General rely on a further ground as being fatal to the
granting of the relief sought. Section 82(3) of the 1898 Act provides that:-
“If
any district council complain that a county council or any county council
complain that a district council, have failed to perform [the duty imposed by
subsection 1] the complaining council may, without prejudice to any other
remedy, appeal to the Local Government Board and s.15 of the Public Health Act
1896 shall apply, with the necessary modifications, in like manner as where
default is made by a sanitary authority.
The
Board were then entitled to make an order limiting the time within which the
necessary work or repairs were to be done and that order, in turn could be
enforced by
mandamus
under
s.
15(1)
of
the
Public Health (Ireland) Act 1896, which provided so far as material that:-
“Where
complaint is made to the Local Government Board that a sanitary authority has
made default in providing their district with
-
22 -
sufficient
sewers ... the Local Government Board if satisfied after due inquiry, that the
authority has been guilty of the alleged default, shall make an order limiting
a time for the performance of their duty in the matter of such complaint. If
such duty is not performed by the time limited in the order, such order may be
enforced by writ of
mandamus
or the Local Government Board may appoint some person to perform such duty....
It
was, accordingly, clearly envisaged that the Local Government Board, having
held the inquiry referred to, would apply, if they thought it appropriate, for
an order of
mandamus:
see
R.
v. Staines Union
62 U QB 540.
That
statutory remedy for ensuring compliance by County and District Councils with
their duties in respect of public works, including roads, was considered in
Harbinson
v. Armagh County Council
[1902] 2 IR 538
.
That case established that the principle of law by virtue of which no action
for damages lay at common law for injury caused by the failure to repair a
highway had not been affected by the provisions of the 1898 Act. It also made
clear that the only remedy which could be invoked against a council in default
was that provided under s.82(3) of the 1898 Act and s.15 of the
Public Health
(Ireland) Act 1896.
-
23 -
The
nonfeasance rule, as it was known, was of ancient origin, the leading case on
the topic of
Russell
v. The Men of Devon
2 TR 667 having been decided in 1788. Lord Halsbury in
Cowley
v. Newmarket Local Board
[1892] AC 345 stated the rule to be that:-
“[A]s
the road ought to be repaired by the public no individual can maintain an
action against them for any injury arising from their neglect.
The
same case had made it clear that in England the effect of statutes imposing the
duty of repair on corporate bodies was not to create a new liability: they
simply afforded a more convenient method of enforcing existing rights. This was
the law applied by the Irish King’s Bench Division in
Harbinson
v. Armagh County Council
where Lord O’Brien LCJ, had this to say of the relevant provisions of the
1898 Act:-
“Now,
it is quite true that the 82nd section of [the 1898 Act] expressly, and in so
many words, says that it shall be the duty of the county council, according to
its powers, to keep all roads and bridges in repair; but in my opinion this
express declaration as to their duty was inserted in the section solely with
the view of
-
24 -
removing
all question of discretion, and of securing that the public duty of maintaining
roads should be fulfilled and its fulfilment made enforceable by
mandamus
- with the view, in fine, of making it clear that a county council fit failed
to perform its duty, could be reached by
mandamus
under the incorporated provisions of the Public Health Act, and not with a view
of creating an added liability, in the case of mere nonfeasance, to civil
redress for damages.”
29. The
reference to an order for
mandamus
is
to an order normally made at the suit of the Local Government Board (now the
Minister for the Environment) under the provisions of s.15 of the Public Health
(Ireland) Act 1896. That passage suggests strongly that the reference to an
order of
mandamus
in
s.8 1 of the 1898 Act is to such an order and not to one sought at the suit of
a member of the public. Remarkably, Lord O’Brien LCJ makes no reference
in his judgment in
Westropp
either
to his earlier judgment in
Harbinson
or
to the effect of s.82(3) of the 1898 Act. Nor is it referred to at any point in
the later case of
Hewson.
The
authority of the two latter decisions, accordingly, cannot be regarded, in my
view, as beyond doubt, notwithstanding the considerable eminence of the judges
who decided them. However, for the reasons I have already given it is
sufficient to say that, in the case of
Westropp
-
25 -
they
simply do not support the propositions advanced on behalf of the applicants
and, in the case of
Hewson
the
remarks of both the Lord Chief Justice and Gibson J, which I have cited are
against the granting of
mandamus
in a case such as the present.
“A
road authority shall be liable for damage caused as a result of their failure
to maintain adequately a public road.”
30. However,
that change in the common law position was only to become operative: -
“on
such day, not earlier than the 1st day of April 1967, as may be fixed therefor
by order made by the Government.”
31. No
such order has ever been made by the Government and it was held by a majority
of this court in
The
State (Sheehan) v. The Government of Ireland
[1987] IR 550
that
an order of mandamus could not be granted requiring the Government to bring the
section into operation. The position, accordingly, remains that a person who
suffers injury by reason of the failure of a county council to carry out their
statutory duty to repair a road cannot recover damages
-26-
from
the county council. The law would be in a remarkable and anomalous state if a
person who suffered the most catastrophic injuries as a result of the culpable
neglect of the county council in fulfilling its statutory duty, even in a case
where they had the appropriate resources, could not recover damages, while a
person who suffers no more than inconvenience in circumstances were the
council’s failure is due, not to their neglect as such, but to lack of
funds, is provided by the law with a remedy in the form of an order of
mandamus.
I
do not in any way underestimate the hardship which has been caused to some of
the applicants in the present case, which extends beyond mere inconvenience,
and, in one instance at least, to the sustaining of personal injuries. But if
the arguments on behalf of the applicants are well founded it would follow that
an order of
mandamus
should
similarly be granted in respect of the non-repair of the road, where the
inconvenience suffered by the applicant was significantly less and might not
even be capable of being classified as a serious hardship.
32. In
view of the uncertain nature of the authorities, and the fact that any argument
based on lack of standing was abandoned in the High Court, I would reserve for
another occasion the question as to whether, even assuming a culpable neglect
on the part of a council in failing to perform their duties under the 1898 Act,
mandamus
lies
at the suit of a member of the public to compel them to perform their duty. For
the purpose of this case, it is sufficient to say
-27-
that,
for the reasons already given, I am satisfied that this was not a proper case
in which to grant the remedy of
mandamus.
33. I
would allow the appeal.
THE
SUPREME COURT
1997
No 7
HAMILTON
CJ
DENHAM
J
BARRINGTON
J
KEANE
J
MURPHY
J
BETWEEN:
PATRICK
JOSEPH BRADY & ORS
APPLICANTS/RESPONDENTS
AND
THE
COUNTY COUNCIL OF THE COUNTY OF CAVAN
RESPONDENTS/APPELLANTS
JUDGMENT
OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 17TH DAY OF JUNE 1999
34. These
proceedings raise issues as to the extent of the liability of a local authority
to keep in repair roads in their areas and the nature of the remedy (if any)
available in the event of their failure to perform that duty.
35. By
her judgment and order dated the 20th day of December 1996 Ms Justice Carroll
held that the County Council of the County of Cavan (the Appellants) had failed
in their statutory duty to maintain the roadway between Ashgrove and Stag Hall,
Belturbett, County Cavan and
granted
to the Applicants/Respondents, who were all residents in the area, an order of
Mandamus directing the Appellants to repair that roadway. It is from that
judgment and order that the Cavan County Council appeal to this Court.
36. Originally
the Appellants disputed the locus stand of the Respondents to maintain these
proceedings. That challenge was subsequently abandoned. Again it is conceded
that the Appellants do have certain obligations in respect of the repair and
maintenance of the roads in their administrative area and moreover they concede
- as clearly they must - that the roadway in question is (or was) in a
deplorable and perhaps dangerous condition. What the Appellants disputed was
the extent rather then the existence of a statutory duty to repair and the
nature of the remedy (if any) available to local residents in the event of a
failure to fulfil that duty.
37. Last
year was the centenary of the legislation which introduced major reforms in the
administration and constitution of Local Authorities. It was the Local
Government (Ireland) Act, 1898, which imposed on Local Authorities the duty to
maintain roads. Section 82 (1) of that Act provided that:-
“It
shall be the duty of every county and district council, according to their
respective powers, to keep all public works maintainable at the cost of their
county or district in good condition and repair, and to take all steps
necessary for that purpose.”
“Public
works”
includes
roads (see
section 109 of the 1898 Act).
-2-
38. The
Local Government Act 1925 (Part III) section 24 provided:-
“(1)
On and after the 1st day of April, 1925:-
(a)
the maintenance and construction of all county and main roads in a county shall
be the duty of the council of such county;”
“13
(1) Subject to Part III, the maintenance and construction of all national and
regional roads in an administrative county shall be a function of the council
or county borough corporation of that county.
(2)
It shall be a function of the council of a county, the corporation of a county
or other borough or the council of an urban district to maintain and construct
all local roads: -
(a)
in the case of the council of a county - in its administrative county,
excluding any borough or urban district,
(b)
in the case of any other local authority - in its administrative area.
-3-
(3)
The local authorities referred to in subsections (1) and (2) shall be road
authorities for the purposes of the roads referred to in those subsections and
shall, subject to Part III and in respect of those roads, perform all the
functions assigned to road authorities by or under any enactment (including
this Act) or instrument.
(4)
The expenses of the council of a county in respect of its functions under
subsection (2) shall be charged on the county exclusive of any borough or urban
district.
(5)
In the performance of their functions under subsections (1) and (2), a road
authority shall consider the needs of all road users.
(6)
(a) A person or group of persons may, with the consent of a road authority,
carry out maintenance works on a local road.
(b)
A consent under paragraph (a) may be given by the road authority subject to
such conditions, restrictions and requirements as it thinks fit.
(c)
Where a road authority gives its consent under paragraph (a) and the works have
been carried out in a bona fide manner and in accordance with every condition,
restriction or requirement specified under paragraph (b) -
(i)
the works shall be deemed to have been carried out by the road authority, and
(ii)
the person or group (and each member thereof who carried out the works shall be
indemnified by the by the road authority against all
-4-
actions
and claims howsoever arising in respect of the works and the carrying out of
works.
(d)
A road authority may provided materials, plant, equipment and the services of
its staff to a person or group carrying out works under this subsection.
(7)
A road authority may do all such things as arise out of or are consequential on
or are necessary or expedient for the performance of its functions under this
Act or otherwise in relation to public roads or are ancillary thereto.
(8)
Without prejudice to the generality of subsection (7) and save as otherwise
provided by law, a road authority may -
(a)
provide any amenity, structure or thing for the safety or convenience of road
users,
(b)
undertake landscaping, planting or any similar activity in the interests of
amenity and the environment,
(c)
provide artistic features.
(9)
Notwithstanding the definition of “road” in section 2, nothing in
this Act shall be construed as imposing on a road authority any liability, duty
or obligation to -
-5-
(a)
construct or maintain fences or retaining walls adjoining a public road which
are the responsibility of any other person and which do not form part of the
road, or
(b)
construct or maintain any bridges, tunnels, railway crossings or any other
structure which by virtue of any enactment are the responsibility of a railway
company or other person.
(10)
(a) A person who, without lawful authority or the consent of a road authority-
(i)
defaces a public road by writing or by any other means,
(ii)
damages a public road,
(iii)
excavates a public road,
(iv)
(I) places or deposits any material or thing on a public road,
(II)
permits dung or urine from an animal owned by him or any material or thing
which falls from a vehicle owned or used by him, to be left on a public road, or
(III)
does any other thing, such that the material, thing, dung or urine or the doing
of such other thing is a hazard or potential hazard to persons using a public
road or obstructs or interferes with the safe use of a public road or the
maintenance of a public roads
-6-
shall
be guilty of an offence.
(b)
A consent under paragraph (a) may be given by the road authority subject to
such conditions, restrictions or requirements as it thinks fit and any person
who fails to comply with such conditions, restrictions or requirements shall be
guilty of an offence.
(c)
Where a person does anything in contravention of paragraph (a), a road
authority may remove any defacement, repair any damage, fill in any excavation,
remove any material, thing, dung or urine or remove or reduce any hazard,
potential hazard, obstruction or interference and may recover from such person,
as a simple contract debt in any court of competent jurisdiction, any costs
reasonably incurred by it.”
40. I
have quoted at length from section 13 of the 1993 Act as (taken in conjunction
with the 1898 Act) it provides the essential code relating to the duties and
rights of Local Authorities in respect of roadways. The argument of the
Appellants was based largely upon that section and the contention that the
learned Trial Judge did not have sufficient regard thereto. Furthermore,
section 13 must be considered in conjunction with section 12 which authorises
“the
abandonment of public roads”
in
certain circumstances and, or so the Appellants would contend, the legislative
provisions regulating the finances of local authorities.
-7-
41. What
the Appellants contend is that the statutory duties imposed upon local
authorities in relation to the maintenance of roadways are not
“absolute
“.
It was contended that the scheme of the 1993 Act was to create the following
situation:-
(a)
That county councils are charged with both powers and duties in relation to
roads falling within their county;
(b)
In the performance of those powers and duties they are obliged to consider the
needs of all road users; and
(c)
The performance of those powers and duties are, to some extents, dependant upon
the provision of finance by the Minister for the Environment in accordance with
section 82 of the 1993 Act.
42. The
history as to how inhabitants of particular areas came to construct roadways
for their own convenience and that of others is of ancient origin but by no
means irrelevant. It was the self-imposed obligation or, more correctly, the
task voluntarily undertaken by local residents which explains why, to the
present day, local authorities may be liable in tort for what they do but not
for what they fail to do. Moreover, the consideration of the circumstances
which existed a hundred years ago when the statutory obligation of repairing
roads was cast upon local authorities may help to explain why the duty was
imposed and how it came to be accepted. It was only in the nineteenth century
that Macadamised surfaces were invented and presumably road surfaces in County
Cavan and elsewhere at the end of that century would have been regarded as
primitive by comparison to modern standards. On the other hand the wear and
tear on roads by motor vehicles at that stage must have been virtually unknown.
Although the invention of the internal combustion engine by Carl Benz occurred
some years
-8-
before
the enactment of the 1898 Act but it was ten years thereafter that Henry Ford
began the true automobile revolution with the invention of the Model T Ford. It
is unlikely that much damage was caused to roads in County Cavan by motor cars
at the time when Percy French held there the post which he described as the
‘inspector
of Drains”
notwithstanding
the fact that in his parody of Longfellow’s
“Excelsior”
he
advocated a car, rather than a bicycle, as the better means of traversing the
hills of Cavan.
43. Undoubtedly
the advent of motor vehicles, farm machinery and heavy lorries, and that in
vastly increasing numbers, has altered dramatically the standard required in
the construction of roads and the problems of maintaining them. Unfortunately
these problems are multiplied in County Cavan and adjoining counties for the
geo-technical reasons explained by the County Engineer, Mr John Tiernan, in the
very helpful affidavit sworn by him on the 12th day of December 1994. He
explained the nature of the
“widespread
weak soil conditions”
which
exacerbated the problems for road maintenance in the area. Ironically it was
those same conditions which created additional difficulties for the Appellants
in financing road works at the time when their income was derived substantially
from rates. The poor soil conditions resulted in low rateable valuations with
correspondingly modest returns from rates. But at least under the rating system
the capacity of the local authority to strike a rate provided, in theory at
least, a balancing factor between the demands made on the local authority by
the statutory duties imposed on it and the financial resources required to
discharge those obligations. The effective abolition of rates on domestic
hereditaments by the Local Government (Financial Provisions) Act 1978 and the
decision of this Court in
Brennan
v. Attorney General
[1984] ILRM 355 declaring unconstitutional the legislation under which rates
were imposed on agricultural lands has left Local Authorities with only a very
small income derived form local taxation. They are now dependant on central
government to make
-9-
up
the lost revenue in the form of a
“rate
support grant”.
It
is
section 82 of the
Roads Act, 1993 which expressly provides that:-
“The
Minister may, subject to such conditions as he sees fit, in each financial year
make grants, of such amounts as may be sanctioned by the Minister for Finance
out of moneys provided by the Oireachtas, to road authorities in respect of any
or all of their functions under this Act or otherwise in relation to public
roads.”
44. As
Mr Tiernan demonstrated in his affidavits it would be wholly impracticable for
the Cavan County Council to raise by way of rates even a fraction of the monies
required to repair and keep repaired the roadway system in County Cavan. That
system comprises 1,350 county roads and, as Mr Tiernan fairly concedes, 600
approximately of those roads could be described
“as
being in a broadly comparable condition to the roads the subject matter of
these proceedings
“.
That those roads are in a deplorable condition is clear beyond dispute and
indeed the learned Trial Judge satisfied herself by inspection that such was
the case. Mr Tiernan explained that both central government and the local
authority recognised the
“particularly
dreadful state of the roads in County Cavan
“.
It was his disturbing conclusion that it would take eight years and a sum of
nearly £10 million a year to correct the problem. It was, however, his
calculation that on the basis of the financial system current at the date of
his affidavit and applying even the most optimistic projections it would take
22 years before the entire road network in County Cavan would be brought up to
a satisfactory condition.
45. The
Appellants stress the fact that the 1898 Act provided no definition as to what
constitutes good condition and repair in relation to roadways. It was urged
that the determination of
-10-
good
condition and repair necessarily involved policy decisions. Mr Tiernan in his
technical analysis of the problem explained how the deterioration of roads due
to particular causes might not manifest itself for a number of years.
Administrative and technical problems will undoubtedly create special problems
and even with unlimited resources no local authority could be expected to
achieve and maintain an adequate state of repairs of all of its roads at all
times. There would be competition in the demands in respect of roadways
themselves and there would be competition by reference to the demands placed on
the local authority in respect of other important services. I would have no
difficulty in accepting and applying the principle referred to in De
Smith’s Judicial Review of Administrative Action (5th Edition 1995) para
16-0 10 as follows:
“Latitude
will also often be given to a public body with respect to the manner and extent
of their performance of their duties, particularly when resources are
insufficient to satisfy all claims upon them; in these circumstances, judicial
enforcement tends to be limited to situations in which reasonable efforts to
perform had not been made.”
Again,
section 7 of the
Local Government Act, 1991 does enjoin local authorities to
have regard to a number of factors in the performance of their functions. These
are largely sensible provisions with regard to consultation and co-operation
with other bodies and the husbanding of precious resources. That section does
not, however, dilute the statutory burdens placed on the local authority. Any
doubt in that regard is laid to rest by
subsection 2 of that section which
provides as follows:-
-11-
“A
local authority shall perform those functions which it is required by law to
perform and this section shall not be construed as affecting any such
requirement.”
46. Whilst
I would have every sympathy with the officials and officers of the Cavan County
Council in their efforts to remedy a situation which may represent the result
of neglect over a period of many years, and may indeed be caused by or
contributed to by geo-technical factors peculiar to their area, without being
given the resources or the means of raising the finances necessary to solve the
problem. However I cannot see that these factors can change the nature of the
statutory duty imposed on them. There is a mandatory requirement to repair the
roads. The Applicants have identified roads which most assuredly have not been
adequately repaired. At the very least the Applicants must be entitled to a
declaration that the Respondents/Appellants have failed in their statutory
duty. The question remains whether the powers of the Court are restricted to
that limited and inadequate remedy.
47. It
is argued on behalf of the local authority that an order in the nature of
Mandamus would involve the Court in determining the priority to be given to one
stretch of roadway over another or indeed to one surface over another. On
behalf of the Attorney General it was said that the making of an order of
Mandamus would amount indirectly to a direction to the State -as the ultimate
paymaster - as to how the Central Fund should be applied and that this would be
an intrusion upon the Executive Function.
48. Historically
- and of necessity against a different constitutional background - the issue of
granting a Mandamus directing a local authority to repair roads was considered
in two cases carefully analysed before the Court, namely,
The
King (Westropp) v. County Council of Glare
-12-
[1904]
2 IR 569
and
The
King (Hewson) v. The County Council of Wicklow
[1908]
2 IR 101
.
In the Westropp case an order of Mandamus was granted by the Court of Appeal
affirming the decision of Palles CB and Andrews J in the High Court. The facts
of that case, and more particularly the defence of the local authority, were
somewhat special. It was explained that the local authority had engaged a
contractor to carry out the appropriate repairs and that due to illness he had
failed to complete the necessary works. That particular defence was rejected
but more important were the decisions of the Court as to the interpretation of
the 1898 Act. That great jurist Palles CB expressed his views at page 578 in
the following terms:-
“I
wish to add one word as to what I consider the liability of these Councils,
for, in my opinion, it has not been clearly understood by them. Their duty is
not satisfied by entering into a contract, or bypassing a resolution of
reference to their county surveyor. It is not sufficient for them to say that
such and such a proposal was not made, or that the county surveyor did not send
in such and such a report. The duty to keep the road in repair is on them. They
are bound to do it if their contractors shall fail to perform the duties
imposed upon the Council the Council can at once procure their performance by
others.”
49. Lord
Justice Fitzgibbon expressed the same view (at page 583) in the following terms:-
“As
to the measure of their duty, I wish to repeat, and to emphasise, the judgment
of the Lord Chief Baron, that as the Councils can only perform their duty by
others, the default of the others by whom they ought to have had it performed
is a breach of their statutory obligation. They must see that the County
Surveyor takes proper steps to make the contractors perform their duties, and
the default of the contractor or County
-13-
“I
am of opinion that this so-called road was not a public road maintainable by
the county, or in any sense a public road within the ordinary meaning of that
expression.”
50. Gibson
and Kenny JJ were less emphatic in their conclusions. What Gibson J said (at
page 117) was as follows:-
“Taking
the whole case, the uncertainty of any real dedication of what was in its
origin an accommodation road for the advantage of the La Touche estate, the
vagueness of the user the lease of 1863, and the map on Mr. Hewson ‘s own
lease, the Court would not be warranted in issuing the prerogative writ.”
51. Kenny
J too reviewed the evidence and had regard to the fact that presentments had
been made in respect of the particular roadway but went on to conclude (at page
122) as follows:-
“The
present case seems to me to afford a strong illustration of the danger of
conclusively binding the county by the passing of a presentment. In my opinion
the county never meant to take over this road as a permanent burden, and have
not done so.
The
Court having made that finding any other observations made by it were
necessarily obiter. But it is understandable that the Appellants should place
reliance on the observations
-15-
of
Lord O’Brien when he dealt with the question of finance available to the
county council in the following terms:-
“I
think we should not grant the mandamus, as any order we would make would be
ineffective. There would be no funds to give it effect as appears in the
affidavit of Mr. Gallagher, the county surveyor of the county of Wicklow. He
says in paragraph 7 of his affidavit as follows:-
‘I
say that the limit of expenditure provided by sect. 27 of the Local Government
Act 1898, for Rathdown No. 2 per annum on road contracts is £1711 5s. The
actual liability on foot of contracts and works which must be paid for out of
funds during the financial year, beginning 1st of April, 1907, is £1685
12s .4d., leaving a balance of £25 12s. 8d., which would be utterly
inadequate to do the road or passage in question.
Lord
O’Brien then went on to say:-
“Indeed,
in the exercise of our discretion, I think we ought to refuse this application
as, having regard to the inadequacy of the funds sanctioned by the Local
Government Board in relation to roads, any attempted application, distribution,
or re-distribution of them with reference to the so-called road in question
would be calculated, under the circumstances of the present position, to create
great confusion, embarrassment, and public prejudice.”
-16-
52. It
must be recognised that Lord O’Brien was not speaking about the
inadequacy of funds available to a county council for the fulfilment of a
statutory purpose but a positive statutory embargo on spending monies in excess
of a particular amount without an appropriate consent. That restriction was
contained in section 27 (2) of the 1898 Act in the following terms:-
“A
county council shall not, without the consent of the Local Government Board,
approve of any expenditure on roads proposed by the council of any rural
district, which will cause the expenditure on the roads of the district to
exceed by one-fourth the amount certified by that board to have been the
average expenditure thereon during the three years next before the passing of
this Act, and the Board may as respects each council consent either for a
particular road or a particular year, or generally, and in the latter case may
fix a new limit under this section.”
53. The
importance of that provision was that there was an express statutory annual
limit to the amount which a local authority could expend on the repairs of
roads. Clearly an order of Mandamus could not be granted so as to override that
statutory limit. However, the problem which that subsection might have created
for the applicants was resolved by its effective repeal by section 27 by the
Local Government Act of 1925.
54. In
recent years orders of Mandamus had been granted to compel a local authority to
repair and rebuild courthouses in accordance with the statutory duty imposed by
them in that regard (see
The State (King) v. The Minister for Justice
[1984] IR 169 and
Hoey
v. The Minister for Justice
[1994]
1 ILRM 334)
.
Whilst it is true that in those cases the statutory obligation on
-17-
the
minister to provide courthouses was more specifically identified than the
obligation on local authorities to repair and maintain roads, the salient
feature of those cases - and in particular the Hoey case - was that the learned
Trial Judge rejected the contention of the Minister that budgetary constraints
could operate so as to alter the clear statutory duty. Lynch J summarised the
position (at page 344) in the following terms:-
“It
is quite clear that the obligation under the [Courthouses (Provision and
Maintenance) Act 1935] of providing, maintaining and financing suitable
courthouse accommodation rests on the local authority. It is not open to the
executive by arrangements made with the local authority or by promises made to
the local authority to relieve such local authority from the obligations
expressly imposed upon them by the 1935 Act. True, there can be no objection to
the executive agreeing to indemnify the local authority against the cost of
observing the requirements of the 1935 Act and providing for such costs in
their annual estimates and budgets but such an agreement cannot in any way
limit or reduce the obligations of local authorities and of the minister under
the terms of the 1935 Act. If the executive wishes to limit or reduce such
obligations, the executive must introduce the appropriate legislation to the
Oireachtas and persuade the Oireachtas to enact the same.
Whilst
it is necessary to exercise extreme caution in applying decisions from other
jurisdictions arising on different legislation and in a different
constitutional environment the decision of the House of Lords in
R
v. East Sussex CC. ex parte Tandy
[1998] 2 All ER 769 does appear to be helpful in the principle which it enunciates and
in the terms in which the speech of Lord Browne-Wilkinson is expressed. In that
case the House of Lords had under consideration the UK Education Act 1993,
section 298 of which provided as follows:-
-18-
“(1)
Each local education authority shall make arrangements for the provision of
suitable full-time or part-time education at school or otherwise than at school
for those children of compulsory school age who, by reason of illness,
exclusion from school or otherwise, may not for any period receive suitable
education unless such arrangements are made for them
(7)
In this section “suitable education “, in relation to a child or
young person, means efficient education suitable to his age, ability and
aptitude and to any special educational needs he may have.”
55. The
appellant in that case, Beth Tandy was about sixteen years of age. She had
suffered from myalgic encephalomyelitis and was mildly dyslexic. From May 1992
the Local Education Authority provided her with five hours home tuition per
week as it was impossible for her to attend school. Subsequently the Local
Education Authority cut the hours of home tuition from five hours per week to
three hours per week because of financial constraints. That decision was
challenged by way of judicial review. In his speech delivering the judgment of
the House of Lords Lord Browne-Wilkinson said (at page 777):-
“Parliament
has chosen to impose a statutory duty, as opposed to a power, requiring the
local authority to do certain things. In my judgment the courts should be slow
to downgrade such duties into what are, in effect mere discretions over which
the court would have very little real control. If Parliament wishes to reduce
public expenditure on meeting the needs of sick children then it is up to
Parliament so to provide. It is
-19-
not
for the courts to adjust the order of priorities as between statutory duties
and statutory discretions.”
56. Likewise,
in my view the obligation imposed by the Oireachtas on Local Authorities in
relation to the maintenance and repair of public roads is a duty and must be
performed and may be enforced as such.
57. Nor
do I accept that the obligation of the Local Authority is confined to or can be
considered only in relation to the total road network within their
jurisdiction. The Appellants argue that tax payers or residents could not seek
redress in relation to particular roadways affecting their interests but could
claim redress only if there had been a failure or neglect by the Local
Authority to maintain the network as a whole. Unquestionably some statutory
obligations are indivisible in their terms and in their purpose. The obligation
to make a planning scheme under the Town and Regional Planning Regulations
1934, the effect of which was considered in the
The
State (Modern Homes (Ireland) Ltd) v. Dublin Corporation
[1953] IR 202, is an example of such an obligation. However in general it would
seem to me that where a statutory obligation is imposed upon a public body for
the benefit of citizens generally or a particular section of the community,
those persons affected by a breach of the statutory duty are entitled to seek
and obtain a remedy insofar as the breach of duty impinges upon the
complainant. On the other hand the statutory provisions at issue here cannot be
invoked as “fire brigade provisions” to require a local authority
to take immediate action in relation to every crack and crevice on roads in its
area. Clearly, some roads may be in greater or more urgent need of repair than
others and, in this regard, the management of its road-fixing schedule is a
matter for the local authority. Considerations of prudent management may
-20-
regulate
the rotation in which roads are repaired but absence of resources will not
justify abandoning or postponing indefinitely the performance of the statutory
duty.
58. It
is well settled law that the granting or withholding of judicial review by way
of mandamus is discretionary. I would have no doubt that such discretion should
be exercised sparingly in relation to the affairs of a local authority and, in
particular, should not be granted at all where any doubt exists as to the
existence of a duty or the adequacy of its performance. However, in the present
case it is common case that the duty to repair exists and whatever doubt might
exist as to the standard a local authority is required to achieve, it is clear
that the condition of the road in question falls far short of that standard and
the Cavan County Council does not suggest otherwise. Apart from the hesitation
in granting the discretionary relief it is clear that adequate time must be
given for compliance with it even where the failure may be due to default over
a protracted period. The controversy as to the standard of repairs required to
be carried out can be answered by reference to the judgment of the Chief Baron
in the Westropp case where he said, (at page 578) and I agree, that:-
“...
I am of opinion that this writ of mandamus ought to go, and that the writ
should be in the general terms of the 82nd section, and command both Councils,
according to their respective powers, to keep the road in good condition and
repair, and to take all steps necessary for that purpose.”
59. I
have no reason to doubt that the officials of the Cavan County Council would
act responsibly and in obedience to an order of the Court. I would be confident
that the necessary
-21-
repairs
would be carried out and that the County Engineer would ensure that they would
be carried out to an appropriate and adequate standard. Any residual problems
could be resolved by giving the parties liberty to apply to the Court.
60. In
my view the learned Ms Justice Carroll was correct in the judgment and order
given and made by her and I would dismiss the appeal.
-22-
© 1999 Irish Supreme Court
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