Webster and Another v Dun Laoghaire Rathdown County Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 22 March 2013
• Neutral Citation: [2013] IEHC 119
• Court: High Court
• Date: 22 March 2013

[2013] IEHC 119

THE HIGH COURT

[No. 958 J.R./2010]

Webster v Dun Laoghaire Rathdown Co Council & Ors

BETWEEN

Frances Webster and William Webster

Applicants

V.

Dún Laoghaire Rathdown County Council, Ireland and Attorney General

Respondents

HOUSING ACT 1966 S62

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

DEKRA EIREANN TEO v MIN FOR THE ENVIRONMENT 2003 2 IR 270 2003 2 ILRM 210 2003/12/2484

DONEGAN v DUBLIN CITY COUNCIL & ORS UNREP LAFFOY 8.5.2008 2008/14/2927 2008 IEHC 288

DUBLIN CITY COUNCIL v GALLAGHER UNREP O'NEILL 11.11.2008 2008/15/3150 2008 IEHC 354

PULLEN & DOUGLAS v DUBLIN CITY COUNCIL UNREP IRVINE 12.12.2008 2008/53/11093 2008 IEHC 379

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

R v WESTMINSTER CITY COUNCIL, EX PARTE ERMAKOV 1996 2 AER 302 1996 2 FCR 208 1996 28 HLR 819

MULHOLLAND & KINSELLA v BORD PLEANALA 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

GREALISH v BORD PLEANALA UNREP O'NEILL 24.10.2006 2006/27/5728 2006 IEHC 310

YORDANOVA & ORS v BULGARIA UNREP ECHR 24.4.2012 2012 ECHR 758 (APPLICATION NO 25446/06)

BJEDOV v CROATIA UNREP ECHR 29.5.2012 2012 ECHR 886 (APPLICATION NO 42150/09)

BUCKLAND v UNITED KINGDOM 2013 HLR 2 2013 56 EHRR 16 2012 ECHR 1710

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

CONVEYANCING & LAW OF PROPERTY ACT 1881 S14

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 40.5

DAMACHE v DPP & ORS UNREP SUPREME 23.2.2012 2012/9/2413 2012 IESC 11

CONSTITUTION ART 41

O'ROURKE, STATE v KELLY & AG 1983 IR 58 1980/17/3092

HOUSING ACT 1966 S62(3)

LAURENTIU v MIN FOR JUSTICE & ORS 1999 4 IR 26

BYRNE v DUBLIN CITY COUNCIL UNREP MURPHY 18.3.2009 2009/7/1448 2009 IEHC 122

RSC O.84 r21

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604 2005 2 ILRM 288 2005/17/3473 2005 IESC 33

QUINN v ATHLONE TOWN COUNCIL & ORS UNREP HEDIGAN 8.7.2010 2010/44/11058 2010 IEHC 270

ROBINSON v DUBLIN CITY COUNCIL & ORS UNREP HEDIGAN 24.10.2012 2012 IEHC 605

ROCK v DUBLIN CITY COUNCIL & ORS UNREP SUPREME 8.2.2006 2006/50/10677 2005 IESC 18

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 12 ELR 33 2001/6/1371

HOUSING ACT 1966 S62(1)

LEONARD v DUBLIN CITY COUNCIL & ORS UNREP DUNNE 31.3.2008 2008/35/7594 2008 IEHC 79

CHAPMAN v UNITED KINGDOM 2001 33 EHRR 18 10 BHRC 48

CONNORS v UNITED KINGDOM 2005 40 EHRR 9 16 BHRC 639 2004 HLR 52

DONEGAN v DUBLIN CITY COUNCIL & ORS; DUBLIN CITY COUNCIL v GALLAGHER 2012 2 ILRM 233 2012/9/2558 2012 IESC 18

QUINNS SUPERMARKET LTD & QUINN v AG & ORS 1972 IR 1

DILLANE v IRELAND & AG 1980 ILRM 167 1980/12/2233

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

MCCANN v UNITED KINGDOM 2008 47 EHRR 40 2008 2 FLR 899 2009 1 FCR 390 2008 ECHR 385

CENTRAL DUBLIN DEVELOPMENT ASSOCIATION LTD & ORS v AG 1975 108 ILTR 69

CONSTITUTION ART 43

DREHER v IRISH LAND CMSN & ORS 1984 ILRM 94 1983/9/2469

FINLAY v LAOIS CO COUNCIL & ORS UNREP PEART 20.12.2002 2003/21/4864

ROADS ACT 1993 S78(4)

CONSTITUTION ART 40.3.2

O'BRIEN v MANUFACTURING ENGINEERING CO LTD 1973 IR 334

RYAN v AG 1965 IR 294

HOUSING LAW

Judicial review

Summary recovery of property - Judicial review seeking certiorari of decision of housing authority to apply for order for possession - Constitutional protection of home - Right to respect for private and home life - Discrimination between public and private tenants - Constitutional guarantee of equality - Delay in seeking judicial review - Retrospective alteration of reasons for decision - Breach of local housing tenancy agreement - Arrears of rent - Absence of independent decision maker to consider allegations made - Presumption of constitutionality - Declaration of incompatibility with European Convention on Human Rights 1950 - Exigencies of common good - Absence of material conflict of fact - Whether Housing Act 1966 (No 21), s 62 unconstitutional - Whether Housing Act 1966 (No 21), s 62 accorded with the principles of social justice - Whether Housing Act 1966 (No 21), s 62 was necessary, legitimate and proportional solution - Whether discrimination was arbitrary, capricious or unreasonable - Whether judicial review application brought promptly - Whether decision to evict proportionate - Dillane v Attorney General [1980] ILRM 167; Donegan v Dublin City Council [2012] IESC 18, (Unrep, SC, 27/2/2012); Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604; O'Brien v Manufacturing Engineering Co Ltd [1973] IR 334; Quinn's Supermarket v Attorney General [1972] IR 1 and Ryan v. Attorney General [1965] IR 294 applied - Central Dublin Development Association v Attorney General [1975] 108 ILTR 69 and Dublin City Council v Gallagher [2008] IEHC 354, (Unrep, Ó Néill J, 11/11/2008) approved - Byrne v Dublin City Council [2009] IEHC 122, (Unrep, Murphy J, 18/3/2009); Chapman v UK (App No 27238/95), (2001) 33 EHRR 18; Damache v DPP [2012] IESC 11, [2012] 2 IR 266; De Róiste v Minister for Defence [2001] 1 IR 190; Dekra Éireann Teoranta v Minister for Environment [2003] 2 IR 270; Dreher v Irish Land Commission [1984] ILRM 94; Finlay v Laois County Council (Unrep, Peart J, 20/12/2002); Grealish v An Bord Pleanala [2006] IEHC 310, [2007] 2 IR 536; Laurentiu v Minister for Justice [1999] 4 IR 26; Leonard v Dublin City Council [2008] IEHC 79, (Unrep, Dunne J, 31/3/2008); Mulholland v An Bord Pleanala (No 2) [2005] IEHC 306, [2006] 1 IR 453; Pullen v Dublin City Council [2008] IEHC 379, (Unrep, Irvine J, 12/12/2008); Quinn's Supermarket v Attorney General [1972] IR 1; R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302; State (O'Rourke) v Kelly [1983] IR 58 and Yordanova v Bulgaria (App No 25446/06), (Unreported, ECHR, 24/4/20012) considered - Bjedov v Croatia (App No 42150/09), (Unreported, ECHR, 29/5/20012); Buckland v UK (App No 40060/08), (2013) 56 EHRR 16; Quinn v Athlone Town Council [2010] IEHC 270, (Unrep, Hedigan J, 8/7/2010) and Robinson v Dublin City Council [2012] IEHC 605, (Unrep, Hedigan J, 24/10/2012) distinguished - Housing Act 1966 (No 21), s 62 - European Convention on Human Rights Act 2003 (No 20), s 5 - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Constitution of Ireland 1937, arts 40.1, 40.3, 40.5, 41 and 43 - European Convention on Human Rights 1950, art 8 - Reliefs refused (2010/958JR - Hedigan J - 22/3/2013) [2013] IEHC 119

Webster v Dún Laoghaire Rathdown County Council

Facts: The applicants sought to quash the decision of the first named respondent to issue and serve a notice to quit on their dwelling house. Rent arrears had built up in respect of the dwelling after the redundancy of one of the applicant. Further allegations of anti-social behaviour had also been made against them. The applicants sought a declaration that the provisions of s. 62 Housing Act 1966 were incompatible with Article 8 ECHR, specifically that the summary proceedings issued against them were not conducted in accordance with the requirements of proportionality and the common good and that the decision to issue proceedings was ultra vires, arbitrary and unreasonable.

Held by Hedigan J. that the reliefs sought would be refused. The circumstances did not support the claims made. There was no proportionality case to answer here. There requirements of social justice and the common good had been served here in the summary procedure in s. 62.

1 Judgment of Mr. Justice Hedigan delivered on the 22nd day of March, 2013

Application

2 1. In these proceedings instituted on the 19th July, 2012, the applicants apply by way of judicial review for an order of certiorari, quashing the decision of the first named respondent dated the 12th January, 2010 to issue and serve a notice to quit in regard to the dwelling house located at 14, Kilcross Crescent, Sandyford, Dublin, 18.

Parties

3 2. The applicants reside at the said premise. The first named applicant is a part-time cleaner and the second named applicant is a former production manager and is now unemployed. The first named respondent is the County Council with responsibility for the administrative area of Dún Laoghaire Rathdown.

Factual background

4 2 3.1. The first named applicant was allocated a tenancy at 14, Kilcross Crescent, Sandyford, Dublin 18, by the first named respondent on the 8 ^th May, 1985 under a written tenancy agreement of the same date. This agreement provided that the rent payable was to be calculated pursuant to the differential rent scheme operated by the first named respondent. The rent is calculated by reference to the income of the tenants, the number of persons in lawful occupation of the dwelling and by reference to the size of the dwelling. Under the scheme the onus lies on the tenant to inform the council of any change in circumstances which may affect the amount of rent payable.

5 At that time the first named applicant had three children and a fourth was born in 1986,The second named applicant moved into the premises in February 1988 and the applicants married in June 1988.All children are now non-dependent. Only one child, Robert, who is unemployed, continues to reside in the premises. He is currently serving a prison sentence in Mountjoy prison.

6 3 3.2. Following the second named applicant's redundancy in 2006, and other personal problems, significant rent arrears built up. The problem intensified as the applicants failed to provide the first named respondents with the necessary documentation showing a change in their income. Consequently their rent continued to be assessed at a higher rate than should have been the case.

7 4 3.3. On the 25 ^th November, 2009, a case conference was held and the first named respondent took the decision to terminate the tenancy. The senior housing officer Mr. Liam O'Donovan recommended...