Kelly v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 29 May 2019
• Neutral Citation: [2019] IESC 56
• Docket Number: [CASE NO. 308/2012]
• Court: Supreme Court
• Date: 29 May 2019

[2019] IESC 56

THE SUPREME COURT

McKechnie J.

McKechnie J.

Charleton J.

Finlay Geoghegan J.

[CASE NO. 308/2012]

Between

MARK KELLY

Applicant/Respondent

-and-

DUBLIN CITY COUNCIL

First Named Respondent/Appellant

-AND-

IRELAND

Second named Respondent

-and-

THE ATTORNEY GENERAL

Third Named Respondent

Judicial review – Removal – Dwelling house – Appellant seeking to appeal from High Court judgment – Whether there had been a breach of fair procedures and/or constitutional justice

Facts: The appellant, Dublin City Council, utilised the provisions of s. 20 of the Housing (Miscellaneous Provisions) Act 1997 to have the respondent, Mr Kelly, forcibly removed, by the Gardaí, from a dwelling house known as 17 Marewood Drive, Ballymun, Dublin 11, on 2nd December, 2011. The ground relied upon was based on alleged anti-social behaviour being conducted within and from the house. This house was owned by the Council and was part of its housing stock. Having obtained leave to issue judicial review proceedings so as to challenge that removal, the respondent unsuccessfully sought an injunction to retake possession of the house. Peart J, in a judgment delivered on 22nd December, 2011, took the view that the relief prayed for was in effect a form of a mandatory order and in the circumstances felt that such should not be granted. Rather, he decided that the substantive action should be determined with some haste. That hearing took place on 17th and 18th January, 2012, and judgment was delivered on 2nd March, 2012. The following orders resulted: (1) an order of certiorari quashing the decision of the appellant made on or about 25th November, 2011, to invoke powers under s. 20 of the 1997 Act; (2) a declaration that the decision to invoke powers under s. 20 was ultra vires in the circumstances in which it was made; and (3) a declaration that the appellant failed to duly consider the rights of the respondent to procedural fairness and due process in the manner in which it decided to invoke powers under s. 20, by denying him an opportunity to respond or make submissions in relation to alleged complaints of anti-social behaviour prior to directing his removal from the premises. Further, costs followed the event and Mr Kelly was granted liberty to apply regarding the question of damages. The Council appealed to the Supreme Court, suggesting that there were some six issues for determination: (1) whether the subject dwelling house was Mr Kelly’s “home”, within the meaning of Article 8 of the European Convention of Human Rights; (2) whether the respondent had rights in the said premises notwithstanding that he had no lawful entitlement to be in occupation and was a trespasser/squatter therein; (3) whether the respondent had rights in the premises notwithstanding that the trial court did not find as a fact that Mr Kelly was residing in the premises at the date of the death of his aunt, the registered tenant thereof; (4) whether he had rights in the premises notwithstanding that he was in breach of the appellant’s rules and general administrative procedures for the letting of local authority housing; (5)(i) whether a local authority utilising the procedure provided for in s. 20 is required to notify a squatter and afford him an opportunity to be heard in answer to allegations of anti-social behaviour; (ii) whether there had been a breach of fair procedures and/or constitutional justice; and (6) whether the application for judicial review should properly have been brought against An Garda Síochána, rather than the Council.

Held by McKechnie J that at no point prior in time to the premises being forcibly entered and secured was Mr Kelly ever informed that he was even under suspicion of having engaged in anti-social behaviour. McKechnie J held that, given the consequences of the direction given on 2nd December, 2011, and the criminal sanction which would follow if not complied with, fairness would dictate that some engagement at some level was necessary; that did not take place. To that extent McKechnie J held that he would uphold the findings of the trial judge, and would dismiss the appeal. McKechnie J was satisfied that the local authority was correctly named in these proceedings for the relief sought against it. McKechnie J held that he would therefore uphold the trial judge in that regard.

McKechnie J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 29th day of May, 2019

1 Dublin City Council, as housing authority, utilised the provisions of s. 20 of the Housing (Miscellaneous Provisions) Act 1997, to have Mr. Kelly forcibly removed, by the gardaí, from a dwelling house known as 17 Marewood Drive, Ballymun, Dublin 11, on 2nd December, 2011. The ground relied upon was based on alleged anti-social behaviour being conducted within and from the house, thus making it necessary that in the interest of good estate management he should leave the premises forthwith. This house was owned by the Council and was part of its housing stock. There is a letting history which I will come back to in a moment. Having obtained leave to issue judicial review proceedings so as to challenge that removal, the respondent unsuccessfully sought an injunction to retake possession of the house. Peart J., in a judgment delivered on the 22nd December, 2011, took the view that the relief prayed for, was in effect a form of a mandatory order and in the circumstances outlined in his decision, felt that such should not be granted. Rather, he decided that the substantive action should be determined with some haste.

2 That hearing took place on the 17th and 18th day of January, 2012, and judgment was delivered on the 2nd March, 2012. Whilst some aspects of the decision require close scrutiny, it is sufficient at this stage to note that the following orders resulted: -

‘(1) An order of certiorari quashing the decision of the first named respondent made on or about 25th November, 2011, to invoke powers under s. 20 of the Housing (Miscellaneous Provisions) Act 1997; [‘the 1997 Act’]

(2) A declaration that the decision to invoke powers under s. 20 [of the 1997 Act], was ultra vires in the circumstances in which it was made;

(3) A declaration that the first named defendant failed to duly consider the rights of the applicant to procedural fairness and due process in the manner in which it decided to invoke powers under s. 20 [of the 1997 Act], by denying him an opportunity to respond or make submissions in relation to alleged complaints of anti-social behaviour prior to directing his removal from the premises.’

Further, costs followed the event and Mr. Kelly was granted liberty to apply regarding the question of damages.

3 Despite the extensiveness of the Notice of Appeal, the Council in its submissions suggests that there are some six issues for determination. These are as follows:-

(1) Whether the subject dwelling house was Mr. Kelly's ‘home’, within the meaning of Article 8 of the European Convention of Human Rights – ‘contrary to the decision of this Honourable Court in the case of Dublin City Council v. Liam Gallagher delivered on 27th February, 2012’;

(2) Whether the applicant has rights in the said premises notwithstanding that he has no lawful entitlement to be in occupation and was a trespasser/squatter therein;

(3) Whether the applicant had rights in the premises notwithstanding that the trial court did not find as a fact that Mr. Kelly was residing in the premises at the date of the death of his aunt, the registered tenant thereof;

(4) Whether he had rights in the premises notwithstanding that he was in breach of the respondent's rules and general administrative procedures for the letting of local authority housing;

(5) (i) Whether a local authority utilising the procedure provided for in s. 20 of the 1997 Act, is required to notify a squatter and afford him an opportunity to be heard in answer to allegations of anti-social behaviour;

(ii) Whether there has been a breach of fair procedures and/or constitutional justice, and finally;

(6) Whether the application for judicial review should properly have been brought against An Garda Síochána, rather than Dublin City Council.

4 As the dates indicate, the judgment of the High Court was given prior to the passing of the Thirty Third Amendment to the Constitution and the creation of the Court of Appeal: consequently, the constitutional provisions then in play apply to these proceedings. The appeal was therefore directly to this Court. Such an appeal is generally considered a ‘legacy appeal’.

5 It is not immediately clear how precisely the trial judge arrived at the decision which he did, or the basis or analysis which led him to that point. Before considering this however, I should look a bit more closely to the factual background. This is easily stated, but how it should be dealt with for the purpose of this appeal, is much less so. As an issue arises as to what findings of facts were in fact made by the High Court, the most informative way of looking at the narrative is to firstly outline what the essential evidence was in respect of both parties, and then decide what findings were in fact made.

6 Mr. Kelly, who was born in 1982, says that virtually from birth he was reared by his grandmother, Juliet Kelly, and by his aunt, Rose Kelly, although she is 21 years older than him. In the documentation both Juliet and Rose are referred to by the respondent as being his mother and sister respectively. They all lived in a council house in Ballymun of which his grandmother was a tenant, until they moved to the subject dwelling in 2003, when he was aged 21 years. He claims to have lived in that house on a near continuous basis since then up to the events giving rise to this case, save for two brief periods starting in 2010. Although estranged from their mother, he has two children...