Dublin City Council -v- Gallagher, [2008] IEHC 354 (2008)

Docket Number:2007 1582 SS
Party Name:Dublin City Council, Gallagher
Judge:O''Neill J.
 
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THE HIGH COURT 2007 No. 1582 SSIn the matter of an application for a warrant under s.52 of the Courts (Supplemental Provisions) Act 1961 And in the matter of an application for a warrant under s.62 of the Housing Act, 1966, as amended by s.13 of the Housing Act 1970BetweenDublin City CouncilComplainantAnd Liam GallagherDefendantJUDGMENT of O'Neill J. delivered the 11th day of November 2008This case comes before this Court as a consultative case stated pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961, the case having been stated by John Coughlan, a Judge of the District Court at the request of the defendant. The relevant facts as proved or admitted or agreed and as found by the learned District Judge, in summary, are as follows:-The tenancy created by the complainant as housing authority in the premises situate at 11 Adare Road, Coolock, Dublin 17 was in the sole name of Mrs. Nancy Gallagher, the defendant's mother, as of 18th February, 1999. Mrs. Gallagher died on 12th July, 2005. The defendant was removed from the rent account of the said premises after he went to live with his partner in August 1995. The defendant lived with his partner from August 1995 until May/June 1997, when he returned to his live with his mother again. The defendant made an application to the complainant to succeed to his mother's tenancy on 25th August, 2005. The defendant's application was rejected by letter dated 20th September, 2005. The complainant found that the defendant did not fulfill either of the criteria as set down in the complainant's Scheme of Letting Priorities, which is a statement of the rules governing, inter alia, succession to tenancies, created by the complainant pursuant to s.60 of the Housing Act, 1966 (the Act of 1966).Those criteria required that a son or daughter be resident at the address in question and be on the rent account for a period of two years prior to the death or departure of the tenant. The complainant did not accept that the defendant resided at his mother's home for the two years prior to his mother's death.The defendant attended, at his request, a meeting with the complainant. He subsequently submitted additional documentation in respect of his application which supported his position of having resided at his mother's house continuously, save for the aforesaid period in the mid nineties when he lived with a partner. The defendant was notified by letter dated 5th January, 2006 that his application had been unsuccessful. A Notice to Quit and Demand for Possession were issued and served on the personal representatives of the late Mrs. Gallagher and a Demand for Possession was then issued and served on the defendant. A Summons was later served by the complainant on the defendant under s.62 of the Act of 1966 to recover possession of the premises.The learned District Judge made a finding of fact that, save for the period when the defendant resided with his partner, he resided with his mother and regarded that dwelling as his permanent residence. This finding was contrary to that made by the complainant which formed the basis of rejecting the applicant's application to succeed to his mother's tenancy.In the District Court the defendant made the case that the entry into force of the European Convention on Human Rights Act 2003 (the Act of 2003) required the District Court to impose an evidentiary and fair procedures requirement on a housing authority seeking a warrant for the possession of a dwelling under s. 62 of the Act of 1966. The learned District Judge expressed concern in the case stated that the hearing of the case would represent little more than a "rubber stamp" of the decision already taken by the complainant, as the procedure outlined in s.62 of the Act of 1966 does not permit the Court to assess the merits of the application nor does not give it any discretion to enquire into the reason why the application is being made by a housing authority.The following four questions were posed for the opinion of this Court by the learned District Judge:"1. Is there an obligation on the District Court by virtue of section 2 of the European Convention on Human Rights Act, 2003, to interpret section 62 of the Housing Act, 1966, as amended by section 13 of the Housing Act, 1970, insofar as is possible in a manner compatible with the State's obligations under the Convention in proceedings issued by the Complainants under section 62 of the Housing Act, 1966 as amended by section 13 of the Housing Act, 1970 subsequent to the coming into operation of the said European Convention on Human Rights Act, 2003?2. If the High Court answers Question (1) above in the affirmative, in appearing to a summons in the District Court issued pursuant to proceedings under section 62 of the Housing Act, 1966 as amended by section 13 of the Housing Act, 1970, does a District Justice have a discretion to explore the merits of the matter, and is he/she then entitled to address the merits of the aforesaid procedures in endeavouring to show cause why a warrant under section 62 of the said Act should not issue for delivery of possession of the relevant dwelling to the Complaints in reliance upon Articles 6, 8 and 13 of the Convention and Article 1 of the First Protocol thereto?3. In appearing to a summons in the District Court issued pursuant to the procedures provided for under section 62 of the Housing Act 1966 is a Defendant entitled to address the merits of the aforesaid procedures in endeavouring to show cause why a warrant under section 62 of the said Act should not issue for delivery of possession of the relevant dwelling to the Complainants in reliance upon Articles 6, 8 and 13 of the Convention and Article 1 of the First Protocol thereto?4. Is the effect of section 2 of the European Convention on Human Rights Act, 2003, that a local authority must adduce evidence in proceedings under section 62 of the Housing Act, 1966, as amended, justifying its decision to terminate a tenancy and/or to seek a warrant for possession?"The relevant statutory provisions in the case are as follows:Section 2 of the Act of 2003 which states:"2. - (1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is 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.(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter."Section 5 of Act of 2003 which states:"5. - (1) In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as 'a declaration of incompatibility') that a statutory provision or rule of law is incompatible with the State's obligations under the Convention provisions…."Section 62 of the Act of 1966, as amended, deals with the recovery of possession of dwellings and other than buildings and provides as follows:"62. - (1) In case,(a) there is no tenancy in-(i) a dwelling provided by a housing authority under this Act, (ii) any building or part of a building of which the authority are the owner and which is required by them for the purposes of this Act, or(iii) a dwelling of which the National Building Agency Limited is the owner, whether by reason of the termination of a tenancy or otherwise, and(b) there is an occupier of the dwelling or building or any part thereof who neglects or refuses to deliver up possession of the dwelling or building or part thereof on a demand being made therefor by the authority or Agency, as the case may be, and (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, the authority or Agency may (without prejudice to any other method of recovering possession) apply to the justice of the District Court having jurisdiction in the district court district in which the dwelling or building is situate for the issue of a warrant under this section.(2) …(3) Upon the hearing of an application duly made under subsection (1) of this section, the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in the said subsection (1) has been duly made, issue the warrant.(4) The provisions of sections 86, 87, and 88 of the Act of 1860 (subject, in the case of the said section 86, to the substitution of 'of one month' for 'to be therein named, and not less than seven or more than fourteen clear days from the date of such warrant' and the substitution of 'eight in the morning and eight in the afternoon' for 'nine in the morning and four in the afternoon') shall apply in respect of the issue of a warrant under this section subject to the modification that where as respects an application under subsection (1) of this section, the name of the occupier of a dwelling or building or part thereof cannot by reasonable enquiry be ascertained, a summons under the said section 86 may be addressed to 'the occupier' without naming him, and the warrant when so issued shall have the same effect as a warrant under the said section 86…."Section 86 of the Landlord and Tenant Law Amendment Act Ireland 1860 (Deasy's Act), referred to in s. 62(4) of the Act of 1966, provides:"In the case the Term or Interest of any tenant in any Cottier Tenement shall have ended, or shall have been duly determined by a Notice to quit, and such Tenant or any Person by whom the Premises or any Part of them shall be then actually occupied shall neglect or refuse to deliver up the Possession of the same, or in case any...

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