Dublin City Council v McGrath

• Jurisdiction: Ireland
• Judge: Carroll J.
• Judgment Date: 12 March 2004
• Neutral Citation: [2004] IEHC 45
• Court: High Court
• Docket Number: [2003 No. 15897 P]
• Date: 12 March 2004

DUBLIN CITY COUNCIL v. McGRATH

BETWEEN/

DUBLIN CITY COUNCIL

PLAINTIFF

AND

LAURA McGRATH

DEFENDANT

[2004] IEHC 45

RECORD NO. 15897P/2003

HIGH COURT

Synopsis:

- [2004] 1 IR 216

Citations:

CAMPUS OIL V MIN INDUSTRY (NO 2) 1983 IR 88

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3\91)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.2

KERR ON INJUNCTIONS

EDUCATIONAL COMPANY OF IRELAND LTD V FITZPATRICK 1961 IR 345

DUBLIN CORPORATION V BURKE UNREP SUPREME 9.10.2001 2001/6/1470

HOUSING ACT 1966 S62

DUBLIN CORPORATION V HAMILTON 1999 2 IR 486

MCDONALD V FEELY UNREP O'HIGGINS 23.7.80 1980/15/2682

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 5

1 Judgment of Carroll J. delivered the 12th day of March, 2004 .

2 The defendant is a tenant of the plaintiff, Dublin City Council, in Eamonn Ceannt Tower in Ballymun, which is due to be demolished as part of the Ballymun Regeneration Programme. There were originally 90 tenants in the Tower, 88 of whom have been re-housed by the Council; only the defendant and one other tenant, Veronica McDonald and her family remain.

3 The defendant's tenancy agreement dated 21 ^st March, 1995 provides that the tenancy might be terminated at any time on giving four weeks' notice by either party. Clause 28 provides that the tenant should on the termination of the tenancy peaceably and quietly deliver up possession of the dwelling to the Corporation (the predecessor in title to the Council).

4 Having endeavoured to come to agreement with the defendant by offering different alternative accommodation, the Council gave notice to quit, dated 11 ^th November, 2003, in accordance with the tenancy agreement to the defendant to deliver up possession on 15 ^thDecember, 2003. Notice to quit was duly served. Prima facie the defendant is now a trespasser.

5 The defendant had applied for a transfer out of the area on 18 ^th September, 1996. The defendant, who is a single mother with one young son now aged ten, wants a transfer to Finglas, where her parents reside. Her son has been under the care of Temple Street Hospital since he was four years of age and has had a lot of surgery to his hip which has been weakened due to cysts. He has been in a wheelchair post-operatively for a time but is not now. The defendant is the youngest of eleven siblings, many of whom live in Finglas. Her son is enrolled in school in Finglas and he goes after school to his grandparents where he is collected by his mother, the defendant, after she finishes work.

6 Having been previously refused, the defendant was awarded overall medical priority on 15 ^th December, 2003, for suitable accommodation due to the physical condition of her son. She is placed in a queue of people with a similar medical priority seeking accommodation in Finglas.

7 The alternative accommodation which the defendant has been offered includes (1) a 60 sq. m., 2-bedroomed apartment at site 372, Gerry Cahill, Ballymun, (2) a 60 sq. m., 2-bedroom bungalow at 443 Cahill Crimmins, Ballymun, (3) a newly-constructed house at 11 Woodhazel and (4) temporary alternative accommodation in a flat at 82 Sillogue Avenue, pending transfer to Finglas. She is not willing to accept any of these.

8 In her affidavit she says that far from refusing to vacate her premises in Ballymun she is most anxious to quit Ballymun and all she seeks is suitable alternative accommodation in Finglas. Further, she says her son has been required to live in unsuitable conditions. Her quality of life in the flats has been non-existent for the last number of years. She has been forced to endure having industrial construction work all around her. She suffered regular disruption to services for many months. She has been without water, heating, electricity, cable and telephone at regular intervals and for protracted periods. She says she is not seeking to frustrate the demolition of the tower but is seeking to ensure the Council exercises its statutory power in a reasonable and rational manner to offer her appropriate alternative accommodation. She says any offer of accommodation in Ballymun will not address her housing need. So her position is that no matter what accommodation she is offered in Ballymun, it is not suitable.

9 The Council avers it has not suitable accommodation in Finglas and that in any event she must take her place in the queue. It estimates it will take about a year to eighteen months for her to be re-housed in Finglas. On behalf of the Council it is stated that until the tower is vacated the proposed contractor would not be in a position to proceed to carry out demolition. Delay in entering into a contract may result in the project having to go through the tendering process again and result in increased building costs. Delays in demolition of the tower may have a detrimental affect on funding for the leisure centre and civic amenities. If the tower is not demolished the entire project, which costs approximately €42 million, will be thrown off course and considerable delay and expense incurred as a result. There will be inconvenience to the tenants of other blocks who are awaiting work to commence on their blocks. The anticipated date for gaining possession of the tower was the 10 ^th November, 2003.

10 The conditions described in the Tower are horrific. The tower has become a hive of antisocial behaviour. The local Guards state in a letter of 15 ^th December, 2003 that local youths gather on the stairwell, drinking, injecting, dealing heroin and engaging in disorderly conduct. One of the photographs shows a syringe full of blood on the stairs. The defendant has erected a steel gate at her entrance, which is a fire hazard. The defendant says the gate was erected for security as the building is derelict. She too acknowledges that there are syringes lying around, that there are drug addicts attacking tenants while high on drugs and says she and her son are breathing in vomit, urine and faeces on a daily basis. She describes the conditions as being unfit for animals, let alone humans.

11 The Council comes to court seeking a mandatory order that the defendant deliver up vacant possession of her flat in Eamonn Ceannt Tower, Ballymun.

12 Since the plenary summons claims damages for trespass, I indicated that I would prefer to approach the application on the basis of an injunction to restrain trespass. This would entail an amendment to the pleadings claiming this relief as an alternative to an order for possession.

13 An application for an interlocutory injunction must be considered in the light of Campus Oil v. Minister for Industry No. 2, [1983] I.R. 88. In order to grant an injunction there must be a fair question to be tried, damages must not be an adequate remedy and the balance of convenience must be in favour of granting the injunction.

14 It is submitted by the defendant that in addition the court must take the European Convention on Human Rights into account.

15 Under the European Convention on Human Rights Act, 2003, section 2 provides:

"1. In interpreting and applying any statutory provision or rule of law, a court shall, insofar as possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions."

16 Section 3 provides:

"1. Subject to any statutory provision (other than this Act), or rule of law, every organ of State shall perform its functions in a manner compatible with the State's obligation under the Convention provisions."

17 The Court being a body through which the judicial powers of the State are exercised is under the definition section an "organ of the State".

18 The...