Webster & Anor -v- Dun Laoghaire Rathdown County Council & Ors, [2013] IEHC 119 (2013)

Docket Number:2010 958 JR
Party Name:Webster & Anor, Dun Laoghaire Rathdown County Council & Ors
Judge:Hedigan J.
 
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THE HIGH COURT[2010 No. 958 J.R.]BETWEENFrances Webster and William WebsterApplicantsV. Dún Laoghaire Rathdown County Council, Ireland and Attorney GeneralRespondentsJudgment of Mr. Justice Hedigan delivered on the 22nd day of March, 2013.Application1. 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.Parties2. 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 background3.1. The first named applicant was allocated a tenancy at 14, Kilcross Crescent, Sandyford, Dublin 18, by the first named respondent on the 8th 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.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.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.3.3. On the 25th 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 action under s.62 of the Housing Act 1966, based on the fact that from 2003-2009 the council had received complaints of anti-social behaviour emanating from the address involving members of the applicants family and some of the allegations were of serious violence and drug dealing, and further that the family had been uncooperative in dealing with the breaches of the tenancy agreement and failed to engage with the council in relation to it. Moreover, the decision was also based on the large rent arrears accrued, which as of the 2nd December 2009, amounted to €19,280(being 192 times the weekly rent). The first named respondent decided to terminate the tenancy due to persistent breaches of the tenancy agreement, the accumulation of rent arrears and in the interest of good estate management.3.4 The applicants argue that the allegations of anti-social behaviour made were of a general nature and did not specify particular incidents of violence or drug dealing. Following recent judgments of the Supreme Court, the respondents are no longer relying on anti-social behaviour as a ground for termination but do still rely on the fact that there are substantial rent arrears as a reason to terminate.3.5 On the 12th January, 2010, the first named respondent served a notice to quit on the first named applicant requiring the applicants to quit and to deliver up the property on the 20th February, 2010.On the 22nd February, 2010, the first named respondent issued and served a demand for possession on the applicants threatening to initiate an application under s.62 of the Housing Act 1966 for the issuing of a warrant in the District Court if they failed to deliver up the property.3.6 On the 3rd June, 2010, the first named respondent applied to Dún Laoghaire District Court under s.62 of the Housing Act 1966 for an order for possession of the house. At this court sitting the applicants indicated their intention to apply by way of judicial review for an order of certiorari quashing the first named applicant’s decision to issue proceedings under s.62 of the Housing Act 1966.The matter was listed for hearing on the 7th October, 2010, and for mention only on the 1st July, 2010.On the 12th July, 2010, the applicants sought leave by way of ex-parte application to apply for judicial review which was granted by the court.Relief Sought4. 1 The applicants seek the following reliefs:-(1) A declaration pursuant to s.5 of the European Convention on Human Rights Act 2003 (hereinafter the ECHR Act 2003) that the provisions of s.62 of the Housing Act 1966 are incompatible with article 8 of The European Convention on Human Rights and Fundamental Freedoms and the protocols thereto insofar as they authorise the District Court, or the Circuit Court on appeal, to grant a warrant for possession where there is a factual dispute regarding whether a tenancy has been properly terminated by reason of a breach of the tenancy agreement on the part of the tenant in the absence of any machinery for an independent review of that dispute on the merits being available at law;(2) If necessary a declaration that the provisions of s.62 are repugnant to the constitution and are invalid;(3) A declaration that the decision of the first named respondent to issue proceedings for possession of the applicant’s property pursuant to s.62 was ultra vires ,arbitrary and unreasonable, contrary to natural and constitutional justice and was against the first named respondent’s obligations under the European Convention;(4) An order for certiorari quashing the decision of the first named respondent to issue the said proceedings under s.62;(5) A declaration that the actions of the first named respondent in maintaining proceedings to recover possession of the applicant’s home under s.62 are ultra vires, arbitrary and unreasonable, contrary to natural and constitutional justice and contrary to the first named respondent’s obligations under the European Convention;(6) An order of prohibition preventing the first named respondent, its servants or agents from taking any further step in prosecuting the said proceedings;(7) The costs of the proceedings.Applicant’s Submissions5.1 The applicants refute the respondents’ allegations of delay as all the decisions they are challenging were made within six months of the day leave to apply for judicial review was sought. Moroever they argue that once served with the Notice to Quit they did not receive the decision on which it was based until the 1st July 2010 and thus they were not in a position to act prior to that date. In Dekra Éireann Teo. v. Minister for Environment [2003] 2 I.R. S.C. 270 the Supreme Court held that as an applicant has six months to seek leave it requires something exceptional to punish an applicant for bringing an application within the 6 months albeit near the expiry of that time period. Furthermore, they argue that there has been no prejudice to third parties and they were not in a position to make their application until the 1st July, 2010, when were in receipt of the relevant documentation. They also submit that they were seeking different reliefs, the reasons for which arose at different times and it would not have been good practice or sensible to make multiple applications for judicial review at various intervals in respect of different points.5.2. Section 62 of the Housing Act 1966 provides a procedure whereby the local authority can apply to the District Court for an order for possession of a property let by it, once the authority has terminated the tenancy in the dwelling by service of a notice to quit. This procedure authorises the District Court (or the Circuit Court on appeal) to grant a warrant for possession even where there is a factual dispute over whether the tenancy has been terminated by reason of breach of the tenancy agreement by the tenant and in the absence of any machinery for an independent review of that dispute on the merits, being available at law, either before the District Court or in another form.The applicants argue that the county council is required to have regard to the applicants’ article 8 rights under the European Convention on Human Rights Act 2003 and by using s.62 they are in breach of the convention. They refer to the High Court cases of Donegan v Dublin City Council (2008) IEHC 288, Dublin City Council v Gallagher (2008) IEHC 354 and Pullen v Dublin City Council (2008) IEHS 379.On the 27th February, 2012, the Supreme Court delivered judgment in the cases of Donegan and Gallagher. At para.143. Mc Kechnie J. described the applicable principles as follows:-“(1)That the District Court, on a s. 62 application, cannot entertain any submission other than that relating to the formal proofs demanded by the section. In particular it has no jurisdiction to hear and determine issues of fact, or mixed issues of fact and law, referable to the preceding decision or the reasons therefore, of the housing authority to terminate the tenancy;(2) This interpretation of s. 62, which had been established prior to the enactment of the Act of 2003, has not been effected by the provisions of s. 2 of the Act. Neither has it been affected by s. 86 of Deasy’s Act.(3) Article 8 of the Convention affords to every person the right to respect for his private and family life and, as relevant to this case, his home. This right does not entitle one to a home or to have his housing requirements satisfied by a public authority. “Home” has...

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