Leonard -v- Dublin City Council & Ors, [2008] IEHC 79 (2008)

Docket Number:2007 916 JR
Party Name:Leonard, Dublin City Council & Ors
Judge:Dunne J.
 
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THE HIGH COURTJUDICIAL REVIEW2007 No. 916 J.R.BETWEENVICKY LEONARDAPPLICANTANDDUBLIN CITY COUNCIL, IRELAND AND THE ATTORNEY GENERALRESPONDENTJUDGMENT of Ms. Justice Dunne delivered on the 31st day of March, 2008. 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 30th 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.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 4th December, 2005. The tenancy agreement provided inter alia as follows:"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.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. 26. The tenancy may be terminated at anytime on the giving of four weeks notice by the tenant or the council…28. The tenant shall on the termination of the tenancy, peaceably and quietly deliver up possession of the dwelling to the council." A number of matters are not in dispute between the parties. It appears from the affidavit of the applicant sworn herein on the 13th 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.When the applicant attended the offices of the Council to sign the tenancy agreement on the 30th November, 2005, she was presented with a letter dated the 29th 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 29th 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."In the affidavit of Michael Clarke sworn herein on behalf of the Council, he averred as follows:"9. By letter dated the 10th 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 21st 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 27th 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.10. On the 9th May, 2006 the council received a complaint that Mark Keating was visiting No. 17 Robert Emmett Walk, and on the 10th May, 2006 a further complaint was received that Mark Keating was residing there. I wrote to the applicant by letter dated the 12th May, 2006 to inform her that complaints had been received that she was in breach of her tenancy agreement, and I requested her to attend for interview and advised her that a recommendation would be made to terminate her tenancy. On foot of that request, both the applicant and Mark Keating attended a meeting with your deponent on the 29th May, 2006 and in the course of that meeting it was admitted that Mark Keating had been on the premises. At the conclusion of the meeting I informed the applicant that a notice to quit would be served on her for breach of the tenancy agreement. Following that meeting the council wrote again to the applicant by letter dated the 26th July, 2006 to advise her that she could request a review of her case within a period of ten days, as it was intended to terminate her tenancy. By letter dated 8th August, 2006, the council received a request for review from Brophy Solicitors on behalf of the applicant. Further correspondence dated the 11th August, 2006 was received from Brophy Solicitors and the council responded thereto by letter dated 25th August, 2006. By letters dated the 8th and the 11th September, 2006, Brophy Solicitors made further representations on the applicants behalf and by letter dated 21st September, 2006 furnished certificates in support of her application for review." These averments are not contested by the applicant. It is clear that the Council had the benefit of representations made on behalf of the applicant by her then solicitors. Ultimately a decision was made by the Council to terminate the applicant's tenancy. A notice to quit and a demand for possession dated the 25th October, 2006 was served on the applicant requiring her to deliver up possession of the premises on the 11th December, 2006. It is contended by the Council that as and from that date her tenancy was terminated and she was no longer entitled to possession of the premises.The applicant failed to deliver up possession of the premises on the 11th December, 2006 and on the 14th December, 2006 the Council issued a summons pursuant to s. 62 of the Housing Act, 1966 as amended by s. 13 of the Housing Act, 1970 (s. 62) to recover possession of the premises. The summons was duly served on the applicant and was returnable before the District Court on the 15th February, 2007. A warrant for possession of the premises was granted that day.The Application for Judicial ReviewThe applicant applied for leave to seek relief by way of judicial review on notice to the Council on the 23rd July, 2007. Leave was granted on that date but on the 30th July, 2007 an application was brought on behalf of the Council to set aside the order granting leave. An order was made setting aside so much of the order of the 23rd July, 2007 as granted leave to the applicant herein to challenge the constitutionality of s. 62 of the Housing Act, 1966 and the warrant issued by the District Court on the 15th February, 2007 pursuant to s. 62 of the Housing Act, 1966. A stay granted in respect of the appeal by the applicant from the District Court to the Circuit Court was lifted. The appeal proceeded and was determined on the 9th November, 2007 when the Circuit Court dismissed the applicant's appeal and affirmed the order of the District Court granting the Council a warrant for possession of the premises herein.Accordingly, the relief sought by the applicant herein is for:1. A declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003 that s. 62 of the Housing Act, 1966 (as amended) is incompatible with Ireland's obligations under the Convention.2. A declaration that the determination by the Dublin District Court on the 15th day of February, 2007 in respect of a notice to quit served on the plaintiff pursuant to s. 62 of the Housing Act, 1966 (as amended) was in breach of the plaintiffs rights under the European Convention on Human Rights and in particular, Articles 3 and/or 6 and/or 8 and/or 13 and/or 14 thereof. The applicant also sought damages for breach of her rights under the European Convention on Human Rights.The grounds upon which the application is brought are set out in the Statement required to ground the Application for Judicial Review and some of the background set out above is referred to in the grounds. In addition the Statement contained the following grounds:"8. When the applicant attended the District Court hearing on the 15th February, 2007 she no longer had legal representation. When her case was called she applied for an adjournment in order to try to seek alternative legal advice, but this application was opposed by the first named respondent and refused by the learned District Judge. Thereupon the first named respondent gave evidence by an officer or employee of various matters pertaining to the tenancy and to the demand made for the possession of the premises. However, the applicant is not in a position to say what actually occurred as it all went by very quickly and she did not understand what was happening.9. The fact is that the summons commanding her to appear at the said District Court invited her to show cause why a warrant under s. 62 of the Housing Act, 1966 should not issue. Not withstanding that fact the learned District Judge did not call upon, or invite the applicant to address the court or otherwise afford her the opportunity of being heard or to take any part in the proceedings. As a result, the applicant was unable to show what steps she had taken to cease any alleged anti-social behaviour at her said dwelling house by e.g., avoiding former associates in the dangerous drug taking community and refusing to allow them to come to her home. She was unable to point out that Mark Keating had never been convicted of drug trafficking or drug dealing, either at her home...

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