Leonard v Dublin City Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 31 March 2008
• Neutral Citation: [2008] IEHC 79
• Court: High Court
• Date: 31 March 2008

[2008] IEHC 79

THE HIGH COURT

[No. 916 J.R./2007]

Leonard v Dublin City Council & AG

[2008] IEHC 79

JUDICIAL REVIEW

BETWEEN

VICKY LEONARD

APPLICANT

AND

DUBLIN CITY COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENT

HOUSING ACT 1966 S62

HOUSING ACT 1970 S13

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

HOUSING ACT 1966 S62(1)

LANDLORD & TENANT ACT 1931

LANDLORD & TENANT (REVERSIONARY LEASES) ACT 1958

RENT RESTRICTIONS ACT 1960

LITZOUW, STATE v JOHNSON & DUBLIN CORPORATION 1981 ILRM 273

O'ROURKE, STATE v KELLY 1983 IR 58

DUBLIN CORPORATION v HAMILTON 1999 2 IR 4861998 2 ILRM 542

BYRNE v SCALLY & DUBLIN CORPORATION UNREP O CAOIMH 12.10.2000 2000/3/1065

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

F (J) v DPP 2005 2 IR 174

KERRY CO COUNCIL v MCCARTHY 1997 2 ILRM 481 1997/9/3139

DUBLIN CITY COUNCIL v FENNELL 2005 2 ILRM 288

MCCONNELL v DUBLIN CITY COUNCIL & ORS UNREP SMYTH 18.1.2005 2005/41/8511 2005 IEHC 7

HOUSING ACTS 1966 TO 2002

HARROW LONDON BOROUGH COUNCIL v QAZI 2003 3 WLR 792

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

ALBERT & LE COMPTE v BELGIUM 1983 5 EHRR 533

BRYAN v UNITED KINGDOM 1995 21 EHRR 342

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

BEGUM v TOWER HAMLETS LONDON BOROUGH COUNCIL TLR 17.2.2003

POPLAR HOUSING & REGENERATION COMMUNITY ASSOC LTD v DONOGHUE 2002 QB 48

HOUSING ACT 1988 S21 (UK)

CHAPMAN v UNITED KINGDOM 2001 33 EHRR 18

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL I ART 1

CONNORS v UNITED KINGDOM 2005 40 EHRR 189

KAY & ORS v LAMBETH LONDON BOROUGH COUNCIL; LEEDS CITY COUNCIL v PRICE & ORS 2006 2 AC 465

BLECIC v CROATIA 2004 41 EHRR 185

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

HOUSING

Local authority

Repossession - Summary procedure - Mandatory issue by District Judge of warrant for possession on receipt of formal proof - Absence of hearing - Whether applicant denied right to fair procedures - Whether applicant denied right to respect for home - Whether local authority tenant discriminated against - Whether housing legislation incompatible with European Convention on Human Rights - Albert and Le Compte v Belgium (1983) 5 EHRR 533, Bryan v UK (1995) 21 EHRR 342, Begum v Tower Hamlets LBC [2003] 2 WLR 388, Harrow LBC v Qazi [2004] 1 AC 983, Chapman v UK (2001) 33 EHRR 138, Sheffield City Council v Smart [2002] LGR 467, Kay v Lambeth LBC [2006] 2 AC 465, The State (Kathleen Litzouw) v Dublin Corporation [1981] ILRM 273, The State (O'Rourke) v Kelly [1983] IR 58 and Dublin Corporation v Hamilton [1999] 2 IR 486 followed; Byrne v Scally (Unrep, Ó Caoimh J, 12/10/2000) considered; Connors v UK (2005) 40 EHRR 189 distinguished - Housing Act 1966 (No 21), s 62(1), (3), (5) and (6) - European Convention on Human Rights Act 2003 (No 20), s 5 - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, articles, 6, 8, 13 and 14 - Relief refused (2007/916JR - Dunne J - 31/3/2008) [2008] IEHC 79

Leonard v Dublin City Council

HUMAN RIGHTS

Respect for home

Fair hearing - Local authority tenant - Summary eviction - Mandatory order in District Court - Whether respect for home violated - Whether fair hearing before independent tribunal - Albert and Le Compte v Belgium (1983) 5 EHRR 533, Bryan v UK (1995) 21 EHRR 342, Begum v Tower Hamlets LBC [2003] 2 WLR 388, Harrow LBC v Qazi [2004] 1 AC 983, Chapman v UK (2001) 33 EHRR 138, Sheffield City Council v Smart [2002] LGR 467, Kay v Lambeth LBC [2006] 2 AC 465, The State (Kathleen Litzouw) v Dublin Corporation [1981] ILRM 273, The State (O'Rourke) v Kelly [1983] IR 58 and Dublin Corporation v Hamilton [1999] 2 IR 486 followed; Byrne v Scally (Unrep, Ó Caoimh J, 12/10/2000) considered; Connors v UK (2005) 40 EHRR 189 distinguished - Housing Act 1966 (No 21), s 62(1), (3), (5) and (6) - European Convention on Human Rights Act 2003 (No 20), s 5 - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, articles, 6, 8, 13 and 14 - Relief refused (2007/916JR - Dunne J - 31/3/2008) [2008] IEHC 79

Leonard v Dublin City Council

Facts: The applicant tenant was a heroin addict living with an addict son and was alleged by her local authority to have been in breach of her housing agreement so as to warrant summary possession proceedings being brought to recover possession, pursuant to s. 62 Housing Act 1966. The applicant alleged that the summary possession procedure contained in s. 62 was incompatible with s. 5 of the European Convention on Human Rights Act 2003 and Articles 3, 6, 8, 13 or 14 ECHR and sought a declaration of incompatibility accordingly.

Held by Dunne J. that it was reasonable and constitutional for a housing authority to be able to rapidly recover possession of a dwelling without reasons. Any abuse was subject to judicial review, which provided adequate safeguards. A District Judge had no jurisdiction to conduct a hearing on its merits. The European Court of Human Rights had established that a wide margin of appreciate was afforded to a State in allocating housing resources and balancing conflicting interests in this regard. The reliefs sought would be refused.

Reporter: E.F.

1 Ms. Justice Dunne delivered on the 31 day of March 2008

2 The applicant herein was the tenant of the first named respondent, (The Council) at 17 Robert Emmett Walk, Bridgefoot Street, Dublin, (the premises) under a tenancy agreement dated 30 ^th November, 2005. The premises were provided by the Council to the applicant under the provisions of the Housing Act, 1966 (as amended) (The Act). Previously, the applicant was the tenant of the council at other premises which were the subject of redevelopment by the Council.

3 The tenancy agreement contained a number of terms which are relevant to the proceedings. The tenancy was a tenancy from week to week commencing on the 4 ^th December, 2005. The tenancy agreement provided inter alia as follows:

4 a "13(a) Neither the tenant nor any member of his household or any household or any sub-tenant or visitor shall cause any nuisance, annoyance or disturbance to any neighbours, their children or visitors or to council staff.

5 b 13(c)(vii) The tenant must not, at any time, invite or allow to remain on any part of the dwelling or garden, any persons in respect of whom the council has notified the tenant that they should not enter or remain on the property.

6 26. The tenancy may be terminated at anytime on the giving of four weeks notice by the tenant or the council...

7 28. The tenant shall on the termination of the tenancy, peaceably and quietly deliver up possession of the dwelling to the council."

8 A number of matters are not in dispute between the parties. It appears from the affidavit of the applicant sworn herein on the 13 ^th July, 2007 that she is a heroin addict and has been attempting to deal with her addiction through a methadone programme. She has a son who lives with her and a partner, Mark Keating, who is also a heroin addict. Prior to the tenancy at the premises the subject of these proceedings, members of the Gardaí had found drugs at the premises previously occupied by the applicant. She was brought before the District Court and fined as a result of that incident.

9 When the applicant attended the offices of the Council to sign the tenancy agreement on the 30 ^th November, 2005, she was presented with a letter dated the 29 ^th November, 2005 drawing her attention to Clause 13(c)(vii) of the tenancy agreement. The letter stated that the council was invoking Clause 13(c)(vii) in respect of Mark Keating. She signed the agreement and an undertaking contained in the letter of the 29 ^th November, 2005 to abide by the terms and conditions of the letter which stated:

"if at any time in the future, Mark Keating is found to be or have been in dwelling 17 Robert Emmett Walk, you are in breach of the terms of your tenancy and Dublin City Council will be entitled to bring proceedings to recover possession of the dwelling... under s. 62 of the Housing Act, 1966, in the interests of good estate management."

10 In the affidavit of Michael Clarke sworn herein on behalf of the Council, he averred as follows:

11 2 "9. By letter dated the 10 ^th February, 2006 your deponent wrote to the applicant for the purpose of drawing to her attention Clause 13(vii) of her tenancy agreement and to point out that as Mark Keating had been found in her dwelling she was in breach of her tenancy agreement. The applicant was requested to attend for interview, and on the 21 ^st February, 2006 both the applicant and Mark Keating attended a meeting with your deponent. Following that meeting the council issued a final warning to the applicant by letter dated 27 ^th April, 2006 that the council would consider terminating her tenancy if she breached Clause 13 of her tenancy agreement. I beg to refer to true copies of the said letters upon which pined together and marked with the letters and number MC3, I have endorsed by name prior to the swearing hereof.

12 10. On the 9 ^th May, 2006 the council received a complaint that Mark Keating was visiting No. 17 Robert Emmett Walk, and on the 10 ^th May, 2006 a further complaint was received that Mark Keating was residing there. I wrote to the applicant by letter dated the 12 ^th May, 2006 to inform her that complaints had been received that she was in breach of her tenancy agreement, and I...