Pullen & Ors -v- Dublin City Council,  IEHC 379 (2008)
|Docket Number:||2006 5888 P|
|Party Name:||Pullen & Ors, Dublin City Council|
THE HIGH COURT2006 5888 P
IN THE MATTER OF SECTION 3(1) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003
LAURENCE PULLEN, CAROL PULLEN, EMMA LOUISE DOUGLAS (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND, CAROL PULLEN, BRENDAN DANIEL DOUGLAS (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND, CAROL PULLEN PLAINTIFFSAND
DUBLIN CITY COUNCILDEFENDANTAND BY ORDER
THE HUMAN RIGHTS COMMISSIONAMICUS CURIAEAND
ATTORNEY GENERALNOTICE PARTY
JUDGMENT delivered by Ms. Justice Irvine on the 12th day of December, 2008
The first and second named plaintiffs in these proceedings are husband and wife and they married in 2002. The third and fourth named plaintiffs are the children of the second named plaintiff.
The first and second named plaintiffs entered a tenancy agreement with the defendant on 15th December, 2004, whereby they became tenants of the defendant's premises at 40 Cloncarthy Road, Donnycarney, Dublin.
Following receipt of a number of complaints of un-neighbourly conduct on the part of the plaintiffs and the investigation of those complaints by officials employed by the defendant in the form of three separate interviews conducted with the first and second named plaintiffs over an approximate six month period, a notice to quit and demand for possession of the premises was made on 3rd August, 2006, within five months after the last interview.
The plaintiffs did not deliver up possession of the premises and, accordingly, on 28th September, 2006, a summons was issued by the defendant pursuant to s. 62 of the Housing Act 1966 (the Act of 1966), as amended by s. 13 of the Housing Act 1970, whereby the defendant sought from the District Court a warrant for possession. On 30th November, 2006, the District Court, having been satisfied with the formal proofs required by s. 62 of the Act of 1966, granted the warrant for possession. The plaintiffs' subsequent appeal to the Circuit Court was unsuccessful.
The District Court, when hearing an application under s. 62 of the Act of 1966, has no jurisdiction to enter into the merits of the claim for possession and must make the warrant for possession once the formal proofs are complied with. In these circumstances, the plaintiffs claim that there must be an independent judicial or quasi-judicial hearing, wherein the finding of anti-social behaviour made by the defendant and which finding was the justification for the termination of their tenancy, can be challenged by the plaintiffs at some point prior to the warrant for possession being enforced. The absence of such a procedure in the eviction process, the plaintiffs contend, contravenes Article 6(1) of the European Convention on Human Rights (the Convention). They further claim that the decision to terminate their tenancy and to seek to recover possession of their home, in the absence of adequate procedural safeguards, infringes their right to respect for their private and family life and to their home, in breach of the guarantee of these rights under Article 8(1) of the Convention.
As a result of their eviction on the grounds of anti-social behaviour, the plaintiffs contend that they are prejudiced in their chances of obtaining alternative local authority housing and that this has had and will have further adverse consequences on their ability to care for their children and to sustain a normal family life. In particular, the plaintiffs rely upon the provisions of the Housing (Miscellaneous Provisions) Act 1997, which alters the rights of those who have been evicted for anti-social behaviour in many respects. For example, the local authority has the right to refuse those persons a further letting or it may decide to defer such letting. These consequences and many others referable to the physical and mental health of the first and second named plaintiffs were outlined to the court in support of their contention that the eviction process, which is the subject matter of the plaintiffs' claim, has adversely and detrimentally affected many of the rights and benefits which they would otherwise have been entitled to enjoy.
At hearing, the plaintiffs sought the following reliefs:-
A declaration that the defendant, in terminating a Housing Act tenancy in a dwelling, is obliged to afford a tenant an opportunity to have the decision to terminate examined or reviewed as to its merits by an independent adjudicator.
A declaration that, in the absence of a process allowing for an independent examination or review of the merits, the decision of the defendant to proceed to seek possession by the summary procedure process provided for by s. 62 of the Act of 1966 constitutes a breach of its obligation to perform its functions in a manner compatible with the Convention.
A declaration that the defendant, in proceeding to terminate the plaintiffs' tenancy and/or in proceeding to seek to summarily recover possession of the dwelling occupied by the plaintiffs, failed to perform its functions in a manner compatible with the State's obligations under the Convention and breached the plaintiffs' Convention rights.
A declaration that the defendant, in seeking to execute any warrant for possession obtained pursuant to s. 62 of the Act of 1966, would be acting in a manner incompatible with the State's obligations under the Convention.
In the alternative, a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 (the Act of 2003), that s. 62 of the Act of 1966 is incompatible with the State's obligations under the provisions of the Convention.
The plaintiffs assert that in the event of the court concluding that the defendant carried out its functions by adopting a legal mechanism which constituted an impermissible interference with the plaintiffs' Article 8 rights that it must follow that the defendant also was in breach of providing for the protection of the plaintiffs' property under Article 1 of the Protocol 1.
Finally, the plaintiffs contend that they, as public housing tenants, were discriminated against, insofar as they were exposed to the risk of loss of their home, in circumstances where there may be no independent adjudication on the facts or reasonableness of the decision to evict such tenants and this amounts to invidious discrimination where other housing sectors are afforded protection from such type of interference.
It was agreed by the parties that the defendant, for the purpose of the performance of its functions under the Act of 1966, is "an organ of the State" within the meaning of the Act of 2003 and that, as a result, the defendant is obliged to perform those functions under the Act of 1966 in a manner compatible with the State's obligations under the Convention. It was further agreed that the defendant, in terminating a Housing Act tenancy in a dwelling and/or instituting proceedings for the recovery of possession of such a dwelling is performing a function to which s. 3 of the Act of 2003 applies.
The within proceedings were heard before this Court in a hearing which lasted some nine days, commencing on 15th April, 2008. This Court heard oral evidence introduced on behalf of the plaintiffs and on behalf of the defendant. In addition, the court was ably assisted by the written and oral submissions of all the parties, including the Human Rights Commission, in its capacity as amicus curiae and also on behalf of the Attorney General, who was a notice party to the proceedings. The parties agreed to admit into evidence the tenancy agreement already referred to and a booklet of correspondence and documents which are material to the claim.
Shortly after the hearing of the action, Laffoy J. delivered a judgment in the case of Donegan v. Dublin City Council and Ors. (Unreported, High Court, 8th May 2008), a decision which is of real significance to the present claim. Further, the European Court of Human Rights delivered an equally important judgment in the case of McCann v. United Kingdom (Application No. 19009/04) on the 13th August, 2008. In these circumstances the court sought assistance from each of the parties and received further written submissions on a number of matters raised by the court for the party's attention.
Prior to considering the legal issues which arise for consideration, it is necessary to set out some of the materials which are pertinent to the court's findings and these materials are as follows:-
(i) Relevant extracts from the Tenancy Agreement dated 15th December, 2004.
(ii) Relevant extract from s. 62 of the Housing Act 1966.
(iii) Relevant sections from the Housing (Miscellaneous Provisions) Act 1997.
(iv) Relevant extracts from the leaflet published by Dublin City Council entitled "Anti-Social Behaviour and your area".
(v) Relevant sections from the European Convention on Human Rights Act 2003.
(vi) Relevant provisions from the European Convention on Human Rights.
(vii) Extracts from relevant correspondence.
(i) Relevant extracts from the Tenancy Agreement dated 15th December, 2004
Clause 13 (a) states:-
"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."
"Nuisance, annoyance or disturbance" is defined in clause 13 (c) as including the following types of behaviour:-"(i) harassment;
(ii) violence or threats of violence against the person or property;
(iii) threats, abuse or harassment of any kind or any act or omission causing disturbance, discomfort or inconvenience;
(iv) obstructions of any of the common areas, doorways and other exits and entrances in the block and in the estate;
(v) making an unreasonably loud noise by shouting, screaming, playing any musical instrument or sound reproduction equipment (including television, radio and hi-fi) or using machinery;
(vi) any act of omission which creates a danger to the well-being of any neighbour or to his/her belongings;...
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