Edward Lattimore v Dublin City Council

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 09 May 2014
• Neutral Citation: [2014] IEHC 233
• Court: High Court
• Date: 09 May 2014

[2014] IEHC 233

THE HIGH COURT

[No. 530 J.R./2013]

Lattimore v Dublin City Council

BETWEEN

EDWARD LATTIMORE

APPLICANT

AND

DUBLIN CITY COUNCIL

RESPONDENT

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 40.5

HOUSING (MISCELLANEOUS PROVISIONS) ACT 2009 S22

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

HOUSING ACT 1966 S60

HOUSING ACT 1988

HOUSING (MISCELLANEOUS PROVISIONS) ACT 2009 S22(3)

ORLIC v CROATIA 2011 HLR 44 2011 ECHR 974

MCCANN v UNITED KINGDOM 2009 1 FCR 390 2008 47 EHRR 40 2008 HLR 40 2009 L & TR 4 2008 2 EGLR 45 2008 LGR 474 2008 AER (D) 146 (MAY) 2008 ECHR 385

YORDANOVA & ORS v BULGARIA UNREP ECHR 24.4.2012 2012 ECHR 758 (APPLICATION NO 25446/06)

BUCKLAND v UNITED KINGDOM 2013 56 EHRR 16 2013 HLR 2 2012 ECHR 1710

MANCHESTER CITY COUNCIL v PINNOCK 2011 2 AC 104 2010 3 WLR 1441 2011 1 AER 285 2010 UKSC 45

BJEDOV v CROATIA UNREP ECHR 29.5.2012 2012 ECHR 886 (APPLICATION NO 42150/09)

PULLEN & DOUGLAS v DUBLIN CITY COUNCIL UNREP IRVINE 12.12.2008 2008/53/11093 2008 IEHC 379

HOUSING ACT 1966 S62

O'DONNELL v SOUTH DUBLIN CO COUNCIL & ORS UNREP EDWARDS 11.1.2008 2008/49/10498 2008 IEHC 454

DONEGAN v DUBLIN CITY COUNCIL & ORS; DUBLIN CITY COUNCIL v GALLAGHER 2012 2 ILRM 233 2012/9/2558 2012 IESC 18

WEBSTER v DUN LAOGHAIRE RATHDOWN CO COUNCIL & ORS UNREP HEDIGAN 22.3.2013 2013 IEHC 119

MCSORLEY v MIN FOR EDUCATION & COUNTY KILKENNY VOCATIONAL EDUCATION COMMITTEE 2012 23 ELR 233 2012/33/9560 2012 IEHC 201

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

WICKLOW CO COUNCIL v FORTUNE UNREP HOGAN 4.10.2012 2012/46/13830 2012 IEHC 406

ROCK v DUBLIN CITY COUNCIL & ORS UNREP SUPREME 8.2.2006 2006/50/10677 2005 IESC 18

WESTON LTD v BORD PLEANALA UNREP CHARLETON 1.7.2010 2010/53/13257 2010 IEHC 255

DOHERTY v SOUTH DUBLIN CO COUNCIL & ORS 2007 2 IR 696 2007/15/3009 2007 IEHC 4

WARD & ORS v SOUTH DUBLIN CO COUNCIL 1996 3 IR 195 1996/15/4842

WHITE MAPLE DEVELOPMENTS LTD & CASTLEWIN PROPERTIES LTD v DONEGAL CO COUNCIL & BUNDORAN TOWN COUNCIL UNREP HOGAN 26.2.2013 2013 IEHC 83

BRYAN v UNITED KINGDOM 1996 21 EHRR 342 1996 1 PLR 47 1996 2 EGLR 123

RAWSON v MIN FOR DEFENCE UNREP SUPREME 1.5.2012 2012/40/11874 2012 IESC 26

Judicial Review – Order of Certiorari – Tenancy – Practice and Procedure – Human Rights – Proportionality – Practice and Procedure – Statutory Obligation – Local Authority – Housing

Facts: In the case under consideration the applicant sought an order of certiorari quashing the decision of the respondent dated 23rd April 2013, to refuse to permit the applicant to succeed to the tenancy of a property at 21, Ennis Grove, Irishtown, Dublin 4. A further order was sought quashing the decision of the respondent of 1st July 2013, to refuse to provide the applicant with an independent review of the proportionality of the decision dated 23rd April 2013. The applicant contended that the respondent had acted in breach of s. 3 of the European Convention on Human Rights Act 2003 (“the Act of 2003”), and that his rights under Article 8 of the European Convention on Human Rights and Article 40.5 of the Constitution had been infringed. The applicant was seeking an independent assessment of the proportionality of the decision to refuse him to continue in the tenancy at 21, Ennis Grove, while the respondent contended that it had no statutory obligation or authority to provide for such a review. The applicant first began residing at the named property in 1956 at the age of 12. At that time, the tenants of the property were the applicant”s parents and since that time, the property had been continuously occupied by the applicant”s family. A member of the applicant”s immediate family had been the named tenant of the property at all times since 1956. In 1962, the applicant moved to the United Kingdom and in 1989, following the death of his mother his sister became the named tenant of the property having been approved to succeed as the sole occupant. In 1991, the applicant returned to Ireland and moved back into the property at 21, Ennis Grove to help care for his sister who suffered from an intellectual disability. In his grounding affidavit, the applicant averred that he believed he had been made a joint tenant of the property at this time, and only discovered in 2012, that this was not the case and that he had merely been added to the rent account of the property. The applicant averred that he had resided at the house continuously since 1991. He was primarily responsible for the household finances which it was shown were impeccable. Following the death of his sister in 2012, the applicant completed an application for succession to the tenancy on 5th December 2012. By letter dated 7th March 2013, the applicant was informed that his application had been refused as a three bedroom property was not appropriate for a single man. He was advised that an alternative one bedroom property would be sourced. On the 21 ^st March 2013, the applicant replied to this letter informing the respondent that he sought a review of the decision of 7th March 2013, and also enclosed a letter from his General Practitioner, Dr. John Ryan detailing his ill-health and the negative effect this decision had and would continue to have on him. It was submitted that the applicant relied heavily on the support provided by his next door neighbours, and his brother and friends who lived nearby. On the 23 ^rd April 2013, he was informed that his appeal was unsuccessful for the same reasons. On 8 ^th May 2013, the applicant was informed that alternative accommodation in a local complex for older individuals was available and advised that failure to accept this offer within two weeks would result in serving a “Notice to Quit” and “Demand for Possession” of the property at Ennis Grove. On 15 ^th May the applicant”s solicitor replied stating that pursuant to s. 3 of the 2003 Act, the respondent was required to act in a manner compatible with the European Convention on Human Rights and that the applicant”s rights under Article 8 would be infringed by compelling him to move from his home. It was further stated that this decision should have been made by an independent decision maker and an independent review of the proportionality of the respondent”s decision was sought. Mr Terence O”Keeffe, Law Agent for the respondent, replied on 1st July 2013, stating that such a procedure was arguably ultra vires. He reiterated that it was the respondent”s view that the house at Ennis Grove was in excess of the applicant”s housing needs and that it was unfair to other applicants who had complied with the statutory requirements. Following the respondent”s failure to arrange for an independent review of the decision, judicial review proceedings were commenced and leave was granted by Peart J. on 15th July 2013.

Held by Justice O”Neill in respects of the applicants request to have quashed the two decisions of the respondent, the first being the decision to refuse the applicant succession to the tenancy in 21, Ennis Grove, but which allowed him, or allocated to him, a tenancy in a one-bedroom dwelling and the second which refused an independent review of the first that he was satisfied that the applicant, having been disappointed by the decision of 23rd April 2013, was entitled, having regard to his rights under Article 8 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights, to have sought from the respondent an independent review of the proportionality of the decision made on 23rd April 2013. Justice O”Neill was also satisfied that there had been no delay on the part of the applicant in initiating proceedings and that that objection by the respondent failed. Having examined the submission put forward by both the applicant and the respondent, Justice O”Neill stated that he saw merit in both and found that, despite the fact that the respondent offered the applicant a one-bedroom flat close to 21 Ennis Grove, Ennis Grove had been at all times the applicant”s “home” within the meaning of Article 8 of the European Convention on Human Rights. He further determined that the refusal of the tenancy in 21, Ennis Grove to him, because of the fact that this house was his home for such a long time, that refusal was, in his opinion, an ‘interference’ with the applicant”s rights in respect of 21, Ennis Grove as his home, as envisaged by Article 8 of the Convention and the applicable jurisprudence including McCann v. the United Kingdom, Yordanova v. Bulgaria, Buckland v. the United Kingdom, Djedov v. Croatia, and Manchester City Council v. Pinnock [2011] 2 A.C. 104. Thus, it was reasoned that the applicant was entitled to have the proportionality of that decision determined by an independent Tribunal in light of the relevant principles under Article 8. In addressing the question as to whether the review carried out by Ms.Conlon could be considered to have about it the necessary character of impartiality and independence to satisfy the procedural safeguards required by Article 8, Justice O”Neill reasoned that Ms. Conlon had before her all of the relevant materials for the purposes of making a reasonable and proportionate decision and found no evidence of her decision being in anyway contaminated by any irrelevant or impermissible material. He reasoned that whilst she had observed the principle of proportionality, he was of the opinion that the jurisprudence established that a housing authority, in such circumstances, cannot be the “independent tribunal” required for the purpose of making a determination on the proportionality issue in such circumstances. Consequently, it was reasoned that such a task should have been left to...