Brady v Wicklow County Council
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 30 June 2016 |
| Neutral Citation | [2016] IEHC 371 |
| Docket Number | [2014 No. 331 JR] |
| Court | High Court |
| Date | 30 June 2016 |
AND
[2016] IEHC 371
[2014 No. 331 JR]
THE HIGH COURT
Administration – Local government – Inspection of house – Notice to quit tenancy – Removal of attic – Bad faith – S. 3 of the European Convention on Human Rights (ECHR) Act 2003 – Art. 40.5 of the Constitution – Damages
Facts: The applicants sought an order of certiorari for quashing the decision of the respondent to terminate the tenancy of the applicants by service of a notice to quit, along with certain other ancillary reliefs. The applicants submitted that the decision to issue a notice to quit was occasioned by bad faith and comprised of misfeasance as the other tenants who were allegedly guilty of wrongdoing, were treated differently by the respondent. The applicants argued that the installation of the attic was done after compliance of all the relevant rules and thus, they were not guilty of non-compliance as wrongly alleged by the respondent.
Mr. Justice Max Barrett granted an order of certiorari and thus, the decision of the respondent to serve a notice to quit tenancy was quashed. The Court also granted declarations to the effect that the decision of the respondent to terminate the tenancy of the applicants was ultra vires and/unlawful by reason of it being irrational and unreasonable; constituted breach of applicants' rights under art. 40.5 of the Constitution; and breach of art. 8 and s. 3 of the ECHR Act, 2003. The Court however refused to grant declaratory reliefs on the basis of misfeasance and bad faith. The Court held the applicant had to discharge a very high onus of proof in order to assert bad faith against a public authority as it would have implications of undermining of public confidence in the public. The Court found that the course adopted by the respondent before the issuance of notice to quit, namely, imposition of the requirement for professional insurance cover by the applicants, failure to reply to four solicitors' letters, were illogical, irrational and disproportionate. The Court held that there was unlawful interference by the respondent in the home occupied by the applicants within the ambit of art. 8 of ECHR Act, 2003, and the respondent was required to assess the proportionality of its decision under said art. 8, which it had failed to do. The Court found that the procedure adopted by the respondent for unlawful eviction was contrary to art. 40.5 of the Constitution as there was no independent determination of the objective requirement for possession by the respondent in the present case.
Mr and Mrs Brady are joint tenants of a council house in Bray. They live there with their five children. In 2004, at a time when Mrs Brady was expecting her fourth child, the couple decided to do an attic conversion to accommodate their growing family. As it happens, their house was pre-designed to facilitate such a conversion and many of their neighbours have done such conversions. The Bradys have never been flush with money. So Mrs Brady visited the Bray Town Council offices back in 2004 and asked if the Council would finance the extension. She was told that the Council would not but, as she avers in her affidavit evidence, it was indicated that ‘ we could carry out the conversion from our own finances’. (Bray Town Council has since been supplanted by Wicklow County Council which is, in consequence, the respondent in these proceedings).
Convinced from Mrs Brady's interactions with the Town Council that they had the “green light” to proceed, the Bradys saved some money and borrowed from the local credit union to finance their attic conversion. Mr Brady, a carpenter by trade, did a lot of the work, aided by a couple of friends, one an electrician and one a gentleman who specialises in installing stairs. By end-2004, the work was done, the new baby had arrived safely, and the Bradys got on with their lives.
The court is satisfied that on the balance of probabilities, Mrs Brady's account of her visit to the Council offices in 2004 is true. There are at least five reasons why this is so:
- first, when giving oral evidence at the within proceedings Mrs Brady impressed the court as a transparently truthful individual.
- second, it does not seem likely to the court that a couple who were generally strapped for cash would expend such savings as they had and get a home improvement loan from the credit union unless they were satisfied that they had permission to do as they did.
- third, as to the absence of a written approval letter, Mrs Brady's response in the witness-box struck the court as that of an honest person: if she knew then what she knows now, she would have got some form of written approval but she never imagined that matters would end up as they have.
- fourth, if the court might borrow a colloquialism, the Council has sought to “make hay” in these proceedings from the fact that it has no written record of what Mrs Brady alleges to have transpired in 2004. However, it seems to the court that the Council is not an unfailing model of record-keeping. It has no paper record of its apparent policy of doing occasional council house inspections, and it has no copy of the list of houses that featured the Bradys' house as the one chosen for the inspection that culminated in these proceedings. Yet it seeks to present the absence of a written approval for the Bradys' home conversion as a problem arising. In truth, the absence of a written approval seems to the court to be but consistent with an occasional slackness in paper-keeping on the part of the Council, itself not the greatest wrong in the world, but an occasional fault presenting nonetheless.
- fifth, notably the Bradys' tenancy agreement of 18th December, 2000, does not require that such consent as was obtained be in writing, providing simply (at clause 13) that:
‘The Tenant shall not execute any additions, alterations, improvements or other works, in or in relation to, the dwelling or erect any shed, garage, out-office or other building, without the consent of the Council.’
Having consented to the attic extension, the entirety of the Council's case would seem to fall at this very first hurdle. One cannot approve of a particular course of action and then disapprove when the approved course of action is taken. To borrow from the judgment of Henchy J. in the long-ago case of Corrigan v. The Irish Land Commission [1977] I.R. 317, 326, a case in which the applicants appeared before a tribunal whose jurisdiction they later challenged when it gave a decision adverse to them, ‘That is something the law will not and should not allow. The complainant [or, in the present case, the Council] cannot blow hot and cold; he [it] cannot approbate and then reprobate; he [it] cannot have it both ways’.
Leaving that aspect of matters aside, and proceeding with the chronology of events, in July 2013,some eight and a half years after the attic conversion was completed, Mrs Brady, a full-time homemaker, was doing her chores about the house when a visitor called. It was the Council's then Clerk of Works. He had come to do an impromptu inspection. Mrs Brady indicated that it was not a convenient time for the inspection and asked if the Clerk could return later in the morning. In fact, he returned the following day. When he called, Mrs Brady took the precaution of recording the visit on her mobile phone.
It is not, of course, every day that one records ostensibly private conversations. So why did Mrs Brady do as she did? Most likely because she and her husband were mistrustful of the Council. Mr Brady had by this time been elected a Sinn Féin member of the Council; more recently he has been elected to Dáil Éireann. In his capacity as a councillor, Mr Brady, in the years prior to 2013,had been vocal in his criticism of the Council's reaction to the tragic deaths of two Bray firemen, he had staged something of a “sit-in” at the Council premises in support of two women seeking Council re-housing, and he was also a prominent critic of the Council's management of drug abuse issues and anti-social behaviour that Mr Brady and others perceived to present on Council-owned estates. On a personal level, Mr Brady was also embroiled in an ongoing spat with the Council over its (unusual) decision to deduct a portion of Mr Brady's expenses qua councillor in order to cover the cost of additional security arising from the “sit-in” at the Council's premises. So the Bradys considered themselves to have good reason to believe that Mr Brady was not viewed with unalloyed affection by Council staff.
It is only fair to note, before proceeding further, that various Council staff gave evidence during the hearings that they had no grudge against Mr Brady as regards his actions as a councillor. The court believes this evidence. Doubtless the Council staff did not welcome Mr Brady's every criticism – who would? – but all of the Council staff unfailingly impressed the court as right-thinking, professional people who freely acknowledge Mr Brady's right, past and present, to represent his constituents as he saw and sees best. However, this does not mean that the processes that the Council followed as regards Mr and Mrs Brady, and which led eventually to the notice to quit which has brought about the within proceedings, are adequate from, inter alia, an administrative law perspective. In point of fact, the court finds that they are not.
The inspection of Mrs Brady's house in July 2013 took about four minutes in total. It consisted mostly of a mutual exchange of the somewhat forced pleasantries that one would expect in such a context. The Clerk went up the stairs, noted that there was an attic extension,...
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