Donegan v Dublin City Council and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 08 May 2008
• Neutral Citation: [2008] IEHC 288
• Court: High Court
• Docket Number: [No. 3513P/2005]
• Date: 08 May 2008

[2008] IEHC 288

THE HIGH COURT

[No. 3513P/2005]

Donegan v Dublin City Council & Ors

BETWEEN

ANTHONY DONEGAN

PLAINTIFF

AND

DUBLIN CITY COUNCIL, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

HOUSING ACT 1966 S62

HOUSING ACT 1970 S13

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

HOUSING ACT 1966 S62(3)

HOUSING ACT 1966 S62(5)

MISUSE OF DRUGS ACT 1977

MISUSE OF DRUGS ACT 1984

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S15

FREEDOM OF INFORMATION ACT 1997

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1997 S3

RESIDENTIAL TENANCIES ACT 2004 S197

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604

O'ROURKE, STATE v KELLY 1983 IR 58

CONNORS v UNITED KINGDOM 2005 40 EHRR 9

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS FIRST PROTOCOL ART 1

LARKOS v CYPRUS (2000) 30 EHRR 597

CARAVAN SITES ACT 1968 (UK)

CARAVAN SITES ACT 1968 (UK) S4

MOBILE HOMES ACT 1983 (UK)

BLECIC v CROATIA 2005 41 EHRR 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.2

KAY & ORS v LAMBETH LONDON BOROUGH COUNCIL 2006 2 AC 465

LEEDS CITY COUNCIL v PRICE & ORS 2006 2 AC 465

HARROW LONDON BOROUGH COUNCIL v QAZI 2004 1 AC 983

HUMAN RIGHTS ACT 1998 (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

WANDSWORTH LONDON BOROUGH COUNCIL v WINDER 1985 AC 461

DOHERTY v BIRMINGHAM CITY COUNCIL 2006 EWCA CIV 1739

TSFAYO v UNITED KINGDOM ECHR UNREP 14.11.2006 APP NO 60860/00

SMITH v BUCKLAND 2007 EWCA CIV 1318

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6.1

BRYAN v UNITED KINGDOM 1996 21 EHRR 342

BEGUM v TOWER HAMLETS LONDON BOROUGH COUNCIL 2003 UKHL 5

LEONARD v DUBLIN CITY COUNCIL & ORS UNREP HIGH DUNNE 31.3.2008 2008 IEHC 79

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

SHORTT v DUBLIN CITY COUNCIL 2003 2 IR 69

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)(a)

HOUSING ACTS 1966 - 2002

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(4)

HOUSING

Housing authority

Notice to quit - Warrant for possession - Dispute on facts - Application to District Court for warrant for possession - Procedure under s.62 of Housing Act 1966 - No requirement on local authority to justify decision to terminate tenancy - Judicial review - Whether interference with right to respect for home - Whether interference in accordance with law - Whether interference has legitimate aim and necessary in democratic society - Whether judicial review adequate remedy where factual dispute exists - Whether legitimate aim pursued by statute - Leonard v Dublin City Council [2008] IEHC 79 (Unrep, 31/3/2008, Dunne J.) distinguished; Connors v UK (2005) 40 EHRR 9, Blecic v Croatia (2005) 41 EHRR 13, Tsfayo v UK [2007] LGR 1 and Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 considered - Housing Act 1966 (No 21), s 62(3) - European Convention on Human Rights Act 2003 (No 20), ss 3, 4 and 5 - European Convention on Human Rights, articles 6, 8, 13 and 14 - Declaration of incompatibility made (2005/3513p - Laffoy J - 8/5/2008) [2008] IEHC 288

Donegan v Dublin City Council

HUMAN RIGHTS

Respect for home

Independent hearing - Compatibility with European Convention on Human Rights - Declaration of incompatibility - Legitimate aim - Necessity in democratic society - Procedural safeguards - Whether provision compatible with European Convention on Human Rights - Leonard v Dublin City Council [2008] IEHC 79 (Unrep, 31/3/2008, Dunne J.) distinguished; Connors v UK (2005) 40 EHRR 9, Blecic v Croatia (2005) 41 EHRR 13, Tsfayo v UK [2007] LGR 1 and Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 considered - Housing Act 1966 (No 21), s 62(3) - European Convention on Human Rights Act 2003 (No 20), ss 3, 4 and 5 - European Convention on Human Rights, articles 6, 8, 13 and 14 - Declaration of incompatibility made (2005/3513p - Laffoy J - 8/5/2008) [2008] IEHC 288

Donegan v Dublin City Council

Facts: The plaintiff sought a declaration that s. 62 of the Housing Act 1966 was incompatible with Article 8 ECHR and sought an injunction to restrain his eviction from local authority housing by reason of the finding of drugs which were alleged to belong to his son. The plaintiff disputed this finding and alleged that he was not afforded an opportunity by the Council to dispute the finding and that his son in fact was a heroin addict and not a drug dealer. The issue arose as to the pre-2003 challenges in the Superior Courts to s. 62 and whether s. 62 prevented an inquiry into its merits by an independent tribunal

Held by Laffoy J. that the procedure provided for in s. 62, where there was no opportunity in the event of a dispute to review the decision on its merits, was not proportionate. S. 62 of the Act of 1966 was incompatible with Article 8 ECHR and the incompatibility could not be circumvented by reason of s. 2 of the Act of 2003. S. 3 of the Act of 2003 provided no comfort to the plaintiff. This was a proper case to grant a declaration of incompatibility and a remedy for damages pursuant to s. 5(4) might lie for the plaintiff but it was a matter for the Government by reason of the provision of the system of ex gratia compensation.

Reporter: E.F.

Judgment of

Ms. Justice Laffoy

delivered on 8th May, 2008

1 In these proceedings the plaintiff claims the following reliefs:

2 1. a declaration that s. 62 of the Housing Act,1966 (the Act of 1966), as amended by s. 13 of the Housing Act, 1970, is incompatible with the obligations of the State under Articles 6, 8 and 13 of the European Convention on Human Rights (the Convention);

3 2. a declaration that the first named defendant (the Council) has failed to perform its functions in a manner compatible with the obligations of the State under the said Articles of the Convention; and

4 3. damages pursuant to s. 3 of the European Convention on Human Rights Act,2003 (the Act of 2003).

5 The plaintiff also claims, if necessary, a stay on the proceedings in the District Court to which I will refer later and, if necessary, an injunction restraining the Council from taking any further steps to evict the plaintiff from the premises known as 71 Bridgefoot Street, Dublin.

6 Counsel for the plaintiff argued for a Convention compatible construction of s. 62(3), but did not make that case on the pleadings or seek declaratory relief to that effect.

7 In so far as is relevant for present purposes s. 62 provides as follows:

2 "(1) In case,

(a) there is no tenancy in -

8 (i) a dwelling provided by a housing authority under this Act,

(ii) …

i (iii)…

9 whether by reason of the termination of a tenancy or otherwise, and

10 (b) there is an occupier of the dwelling or building or any part thereof who neglects or refuses to deliver of possession of the dwelling or building or part thereof on the demand being made therefor by the authority…, and

11 (c) there is a statement in the demand of the intention of the authority or agency to make application under this subsection in the event of the requirements of the demand not being complied with,

12 the authority … may without prejudice to any other method of recovering possession apply to the justice of the District Court having jurisdiction in the district court area in which the dwelling … is situate for the issue of warrant under this section.

3 (2)…

13 (3) On the hearing of an application duly made under subs. (1) of this section, the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in subs. (1) has been duly made, issue the warrant.

14 Subsection (5) contains evidential provisions including the following:

"… in case there is no tenancy in the premises to which the proceedings relate by reason of the termination of a tenancy by notice to quit and the person to whom such notice was given is the person against whom the proceedings are brought, the following additional provisions shall apply:"

(a) any demand or requirement contained in such notice that the person deliver up possession of the said premises to the authority… shall be a sufficient demand for the purposes of para, (b) of the said subs. (1); and

(b) any statement in the said notice of the intention of the authority … to make application under subs. (1) of this section in respect of the premises shall be a sufficient statement for the purposes of para, (c) of the said subs. (1)."

15 The plaintiff became the tenant of the Council in a house at 71 Bridgefoot Street, Dublin (the house) by virtue of a tenancy agreement, dated 22^nd August, 2002 made between the Council of the one part and the plaintiff of the other part (the tenancy agreement). The plaintiff had been a tenant of the Council for the preceding sixteen or eighteen years in a flat in a building in the same locality which has since been demolished. His son, who was born in 1980, lived with him in the flat and moved with him to the house. It is common case that the house is a dwelling provided by a housing authority under the Act of 1966.

16 The provisions of the tenancy agreement which are relevant for present purposes are as follows:

17 · Clause 1 whereby the Council let the premises to the plaintiff for one week commencing 26^th August, 2002 and "so from week to week or until the tenancy shall be determined…"

18 · Clause 13 (a), which is in bold print, and...