Hussey and Others v Dublin City Council

• Jurisdiction: Ireland
• Judge: O'Higgins J.
• Judgment Date: 14 December 2007
• Neutral Citation: [2007] IEHC 425
• Date: 14 December 2007
• Court: High Court
• Docket Number: [2006 No. 399 J.R.]

[2007] IEHC 425

THE HIGH COURT

[No. 399 J.R./2006]

HUSSEY & ORS v DUBLIN CITY COUNCIL

JUDICIAL REVIEW

BETWEEN

ANTHONY HUSSEY, MALCOLM FRASER, AND BRENDAN BURGESS

APPLICANTS

AND

DUBLIN CITY COUNCIL

RESPONDENT

DERELICT SITES ACT 1990 S10

DERELICT SITES ACT 1990 S3

PLANNING & DEVELOPMENT ACT 2000

RSC O.84 r21

DERELICT SITES ACT 1990 S2

DERELICT SITES ACT 1990 S8(2)

LOCAL GOVERNMENT (SANITARY SERVICES) ACT 1964 S3

DERELICT SITES ACT 1990 S3(a)

RSC O.84 r21(1)

LEWIS JUDICIAL REMEDIES IN PUBLIC LAW 3ED 2004 232 PARA 6-057

R v BRISTOL CORPORATION, Ex parte HENDY 1974 1 WLR 498

HOEY v MIN FOR JUSTICE 1994 3 IR 3291994 1 ILRM 334

COURTHOUSES (PROVISION & MAINTENANCE) ACT 1935 S3(1)

BRADY v CAVAN CO COUNCIL 1999 4 IR 99

SHEEHAN, STATE v GOVERNMENT OF IRELAND 1987 IR 550

MIN LABOUR v GRACE 1993 2 IR 53

DERELICT SITES ACT 1990 S3(b)

ELLIS & RUISLIP NORTHWOOD UDC, RE 1920 1 KP 343

DERELICT SITES ACT 1990 S11

DERELICT SITES ACT 1990 S11(3)(c)

DERELICT SITES ACT 1990 S11(5)

LOCAL GOVERNMENT

Derelict sites

Statutory duty - Mandamus - Local authority duty to ensure land did not become "derelict site" - Whether justiciable by general public - Appropriateness of remedy of mandamus - Words and phrases - "derelict site" - "amenity" - Whether amenity of land including interior of adjoining structure - R v Bristol Corporation, ex p Hendy [1974] 1 WLR 498, Brady v Cavan County Council [1999] 4 IR 99, Hoey v Minister for Justice [1994] 3 IR 329, State (Sheehan) v Government of Ireland [1987] IR 550, Minister for Labour v Grace [1993] 2 IR 53 considered; In re Ellis v Ruislip Northwood Urban Council [1920] 1 KB 343 distinguished - Derelict Sites Act 1990 (No 14), ss 10 and 11 - Claim dismissed (2006/399JR - O'Higgins j - 14/12/2007) [2007] IEHC 425

Hussey v Dublin City Council

1 Judgment of O'Higgins J. dated the 14th day of December, 2007.

2 The applicants are owners of properties Nos. 17 and 21 Northumberland Road, Dublin, which adjoin 19 Northumberland Road, the property which is the subject of these proceedings.

3 The applicants seek an order of mandamus directing the respondent to take all steps necessary to comply with its statutory duty pursuant to s. 10 of the Derelict Sites Act 1990.

4 Section 10 of the Derelict Sites Act states as follows:

"It shall be the duty of a local authority to take all reasonable steps (including the exercise of any appropriate statutory powers) to ensure that any land situate in their functional area does not become or continue to be a derelict site."

5 The phrase "derelict site" is defined by s. 3 of the 1990 Act as meaning any land -

"which detracts, or is likely to detract, to a material degree from the amenity, character or appearance of land in the neighbourhood of the land in question because of û"

(a) the existence on the land in question of structures which are in a ruinous, derelict or dangerous condition, or

(b) the neglected, unsightly or objectionable condition of the land or any structures on the land in question, or

(c) the presence, deposit or collection on the land in question of any litter, rubbish, debris or waste, except where the presence, deposit or collection of such litter, rubbish, debris or waste results in the exercise of a right conferred by statute or by common law."

6 Leave to apply by way of an application for judicial review was granted by order of the High Court (Peart J.) on 22nd May, 2006 to seek relief on grounds set forth in paragraph E, sub-paragraph (1-5) in the Statement of the applicants of 31st March, 2007.

7 Those grounds are as follows:

8 1. The respondent is Dublin City Council and responsible in that capacity as a local authority within the meaning of the Derelict Sites Act 1990.

9 2. It is the duty of the respondent as such local authority to take all reasonable steps (including the exercise of any appropriate statutory powers) to ensure that any land situate in their functional area does not become or continue to be a derelict site.

10 3. The premises known as 19 Northumberland Road are within the functional area of the respondent and further are a protected structure within the meaning of the Planning and Development Act 2000. The property adjoining, No. 17 Northumberland Road, is also a listed property and is owned as to one moiety by the first named applicant and the first and second named applicants are lessees under 35-year full repairing and insuring lease. The other adjoining property, namely No. 21 Northumberland Road, is also a listed property and is owned one-third by the third named applicant herein.

11 4. The premises known as No. 19 Northumberland Road, Dublin 4 is a derelict site within the meaning of s. 3 of the Derelict Sites Act 1990 and is in a ruinous, derelict and/or dangerous condition and further detracts from the amenity, character and appearance of neighbouring land and is injurious to the security of the applicants' properties.

12 5. The respondent is aware (and has been for some time) of the condition of the premises at No. 19 Northumberland Road and has failed to adequately react or address same. The applicants accordingly seek to compel the respondent to discharge its statutory obligation to take all reasonable steps (including the exercise of appropriate statutory powers) to ensure that No. 19 Northumberland Road, Dublin 4, being land situate in the respondent's functional area, does not become or continue to be a derelict site.

13 (The order of the High Court mistakenly states that leave was given in respect of No. 29 rather than No. 19.)

14 The statement of opposition dated 12th October, 2006 reads as follows:

Preliminary Objections

15 1. The Applicant has, without good reason, failed to bring these proceedings in accordance with the time-limits of Order 84, Rule 21 and the proceedings ought to be dismissed accordingly.

16 2. It is denied that section 10 of the Derelict Sites Act 1990 ("the 1990 Act") imposes any obligation on the Council that is enforceable at the suit of the Applicants and/or justiciable in these proceedings.

17 Without prejudice to the foregoing, the Council pleads as follows:

18 3. It is admitted that the Council is a local authority within the meaning of section 2 of the 1990 Act and it is further admitted that the premises at 19 Northumberland Road ("the Premises") is within the functional area of the Council.

19 4. It is admitted that section 10 of the 1990 Act imposes a duty on the Council in the terms set out in paragraph (E)(2) of the Applicants' Statement of Grounds but the Council re-iterates its denial that section 10 imposes any obligation on the Council that is enforceable at the suit of the Applicants and/or justiciable in these proceedings.

20 5. Strictly without prejudice to the foregoing, the Council pleads that it has at all material times complied with the duty imposed on it by section 10 in respect of the Premises.

21 6. Save that the Council is a stranger to the ownership of the premises adjoining the Premises, paragraph (E)(3) of the Statement of Grounds is admitted. However, the Council pleads that the fact that the Premises are a Protected Structure is not material to any issue in these proceedings.

22 7. The Council denies that the Premises is a derelict site within the meaning of section 3 of the 1990 Act.

23 8. The Council further denies that it has failed to adequately react to or address the condition of the Premises, as alleged in paragraph (E)(5) of the Applicants' Statement of Grounds or at all. To the contrary, the Council has at all times complied with its obligation under section 10 of the 1990 Act to take all reasonable steps (including the exercise of all appropriate statutory powers) to ensure that the Premises did not become and/or did not continue to be a derelict site. In particular, the Council has exercised its powers under section 8(2) of the 1990 Act and Section 3 of the Local Government (Sanitary Services) Act 1964 to that effect. Full particulars of the steps taken by the Council will be adduced in evidence.

24 9. The Council further pleads that, having taken all such steps as were, in its opinion, reasonable to take for the purpose of securing the statutory objective set out in section 10 of the 1990 Act, it cannot properly be compelled to take any further or additional steps unless its opinion aforesaid is demonstrated to be manifestly unreasonable. No evidence to that effect is before the Court.

25 10. The Applicants are not entitled to the reliefs claimed or to any relief against the Council.

The facts

26 The dispute in this case is long standing and arises out of the failure of the owners to maintain the premises at 19 Northumberland Road in proper condition both as to its physical condition and also to its general security. The premises is the subject of an unresolved legal dispute between the members of the King family. The applicants originally tried to address the matter by correspondence with Mr. Cecil King who was the occupier. Mr. Cecil King died in 2003 and the property became vacant. In October of that year substantial damage occurred to the premises by a fire which was caused by trespassers to the building. The condition of the premises continued to deteriorate and in 2004 there were a number of attempts to break into the premises. The first letter written to the applicants expressing concern was in 2001. It was directed to the Planning and Development Department complaining of the deplorable state of the premises and asking the respondent to intervene. The letter was expressed to have "specific reference to the protection of architectural heritage. (Numbers 17, 19 and 21 Northumberland Road are all protected structures.) Further correspondence took place in 2005 and by letter dated the 31st March...