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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Webster & Anor -v- Dun Laoghaire Rathdown County Council & Ors [2013] IEHC 119 (22 March 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H119.html Cite as: [2013] IEHC 119 |
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Judgment Title: Webster & Anor -v- Dun Laoghaire Rathdown County Council & Ors Neutral Citation: [2013] IEHC 119 High Court Record Number: 2010 958 JR Date of Delivery: 22/03/2013 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 118 THE HIGH COURT [2010 No. 958 J.R.] BETWEEN Frances Webster and William Webster Applicants V.
Dún Laoghaire Rathdown County Council, Ireland and Attorney General Respondents Judgment of Mr. Justice Hedigan delivered on the 22nd day of March, 2013. Application Parties Factual background 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 Sought (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 Submissions 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:-
(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 a meaning special to the Convention, which is not dependent on the legal status of the occupier under domestic law; (4) (i) Under Article 8 there shall be no interference with this right save:- (a) as is in accordance with law, (b) as is necessary in a democratic society, and (c) as in pursuance of a legitimate aim; (ii) The obtaining of a warrant under s. 62 of the Act of 1966, and its execution, is undoubtedly such an interference with the right given by article 8: accordingly, by reason of that fact article 8 is engaged. Whether any preceding step, such as the decision to serve a notice to quit and its actual service also constitute such an interference is a question not necessary for determination; (iii) When a warrant is issued, by virtue of s. 62 of the Act of 1966, it is issued in accordance with law; (iv) The objective of obtaining such a warrant can be regarded as being within the scope of the legitimate aims referred to in para. 2 of article 8, such as, amongst others, in the interest of good estate management, in the protection of the rights of others, including of the landlord and neighbouring tenants; (v) The phrase ‘necessary in a democratic society’ is understood to mean that such will be satisfied if it answers a ‘pressing social need’ and if the interference is proportionate to the aim pursued; (5) It is accepted that by reference to the constituent elements in article 8, only those referable to necessity and proportionality are relevant to the instant cases; (6) In determining whether an interference is article 8 compliant, the regulatory framework within which the measure has been established and operates will be assessed. Questions such as, (i) is the framework procedure sufficient to afford true respect to the interests safeguarded by the article, (ii) is the decision making process fair in such a way as to respect that right, (iii) has the affected person an opportunity to have any relevant and weighty arguable issues tested before an independent tribunal and, (iv) has that person an opportunity to have such an issue considered against the measure, to determine its proportionality; (7) Where any one or more of these requirements, when considered collectively and having regard to the margin of appreciation, is absent, it may be considered that the safeguards necessarily attendant on article 8 for the purposes of its vindication have not been satisfied. A violation in such circumstances may follow; (8) The suggested procedural safeguard as applying in this jurisdiction is the remedy of judicial review; as above-established, s. 62(3) cannot be relied upon in this regard. Whilst, in a great number of cases judicial review will be a sufficient and appropriate remedy, by which issues between public landlords and their tenants, arising out of that relationship, can be resolved, there will undoubtedly be some rare cases in which such remedy will not be suitable. This results from the nature and scope of judicial review and, in particular, from the limitation of its operation relative to the factual dispute; The Supreme Court granted a declaration of incompatibility in Donegan. In Gallagher it was held that the respondent was never a tenant of the council (since it was his mother who occupied the property under a tenancy) thus his article 8 rights were not engaged. The applicants argue that their situation is analogous to Donegan and not to Gallagher. They maintain that the first named respondent, in making the decision to issue and maintain proceedings pursuant to s.62 of the Housing Act 1966, has not complied with its obligations under s.3 of the ECHR Act 2003 and has not performed its functions in a manner compatible with the state’s obligations under the ECHR. They maintain they are entitled to a declaration of incompatibility in circumstances where the respondent asserts that the continued use of the section does not amount to a breach of the state’s obligations under the convention. The respondent appears to believe that the declaration is applicable in only certain limited circumstances and that in other circumstances e.g. where there is no factual dispute between the parties the s.62 procedure can be pursued. 5.3. The respondents are no longer relying on some of their initial grounds in their decision and the applicants argue this is an attempt to retrospectively alter reasons for their decision. They initially argued that termination was necessary as arrears of rent had accumulated, and anti-social behaviour was occurring. The Council then indicated by letter dated the 28th March, 2012, that it would treat the matter as a rent arrears case only and would not pursue the anti-social behaviour aspect of the matter. The applicants argue that in administrative law a decision maker may not retrospectively add to or alter its reasons for a decision or replace it with new and presumably more convincing reasons. The applicants argue that no notice was served when arrears hit €19,280, therefore the notice to quit was really served due to the anti-social behaviour and this ground is now being withdrawn The reasons for termination of the tenancy are cumulative and the fact that the county council is not now relying on one of them means that the decision is fatally flawed. The applicants also invoke the Ermakov principle in R v. Westminster City Council ex- parte Ermakov [1996] 2 All ER 302 ,which holds that if subsequent to a decision being made the decision maker tries to explain it by giving broader reasons than in the decision itself the court will not allow this to happen. Hutchinson L.J. in R.v.Westminster City Council ex-parte Ermakov [1996] 2 All ER 302 at p. 309/312 said:-
There are numerous authoritative statements to this effect.… It is possible to state two propositions which the judgments in ex parte Graham support. (1)If the reasons given are insufficient to enable the court to consider the lawfulness of the decision, the decision itself will be unlawful; and (2) The court should, at the very least, be circumspect about allowing material gaps to be filled by affidavit evidence or otherwise.” 5.4. The applicants assert that the premises is their home for the purposes of article 8 of ECHR. The respondents attempt to suggest that there is no European Convention of Human Rights issue in relation to the arrears. The applicants argue they are incorrect in this. and submit that there is no forum where allegations made against them can be considered. On this basis they contend that s.62 is incompatible with the ECHR. A number of recent European Court decisions which post date the Donegan and Gallagher decisions in relation to proportionality indicate that taking a restrictive view of the extent to which s.62 engages article 8 is at odds with the European Court of Human Rights. In Yordanova and others v. Bulgaria (no. 25446/06) 24th April 2012 the ECHR held at para.118:-
(v)Where the national authorities, in their decisions ordering and upholding the applicant’s eviction, have not given any explanation or put forward any arguments demonstrating that the applicant’s eviction was necessary, the Court may draw the inference that the State’s legitimate interest in being able to control its property should come second to the applicant’s right to respect for his home (ibid).”
a) The first named respondent is an organ of the state; b) The premises in dispute is the applicants’ home; c) Given (a) and (b) above article 8 applies; d) Article 8 requires that a court or tribunal before whom such an application for possession is moved, have the legal authority to decline to order such possession where the court or tribunal considers in the circumstances of the case, that the application is not being made in pursuit of the legitimate aims identified in article 8(2) and, or is not necessary in a democratic society; e) Therefore the court or tribunal has to have jurisdiction to conduct an article 8 assessment, hear evidence relevant to same and be in a position to come to its own independent judgment on the appropriateness of the remedy sought. The applicants argue that the use of s.62 to interfere with the applicant’s rights to respect for their home, where the procedure does not give the applicants the opportunity to dispute the lawfulness or proportionality of the first named respondent’s decision to evict are not justified as being necessary and are disproportionate. They argue that they are especially disproportionate in view of the fact that the first named respondent had an alternative procedure open to it -being s.14 of the Conveyancing Act 1881, which would have provided the requisite safeguards for the applicant’s rights while meeting the first respondent’s aims. The applicants further maintain that the District Court in the instant case does not have jurisdiction to carry out an article 8 assessment of the proportionality of the relief sought under s.62 or have power to refuse an order under s.62 and thus they seek a declaration of incompatibility with the European Convention on Human Rights. 5.5 The applicants argue that the provisions of s.62, by providing for summary recovery of properties by local authorities in circumstances where other landlords are denied such recourse, are inconsistent with the guarantees of fair procedures, personal rights and equality under the constitution. The applicants argue that s.62 of the Housing Act 1966 is discriminatory and contrary to Article 40.1 and/or 40.3 of the constitution as it provides for a regime of summary eviction in the case of public tenancies. Such eviction, unlike any similar regime available in respect of private law tenancies, does not afford a person whose fundamental rights are at stake, the procedural safeguard of an independent judicial arbiter to require the decision to evict or to continue to seek eviction to be subjected to review on its merits. The house at 14, Kilcross is the applicants’ dwelling for the purposes of Article 40.5 of the constitution. They therefore submit that s.62 offends against the inviolability of the dwelling of the citizen pursuant to Article 40.5 and refer the court to the case of Damache v. DPP (2012) IESC 11 where the Supreme Court condemned the practice under the Offences Against the State Act 1939 (as amended) of the issue of search warrants by other than a judicial authority and found that the process fell below constitutional norms of fair procedures. The applicants submit their case is analogous to dwellings being interfered with by way of a warrant. They maintain that s.62 is unconstitutional and that the procedures under s.62 for depriving someone of their home fall below constitutional norms. In Damache v. The DPP [[2012] IESC 11 Denham J. referring to the presumption of constitutionality at para. 47 stated :-
5.6. The applicants seek an order for prohibition as they are at risk of eviction and resulting homelessness unless the first named respondent is restrained by the court from proceeding with its s.62 application. The eviction would amount to a disproportionate interference with the applicants' rights under Article 41 of the Constitution and article 8 of ECHR. Damages would not be an adequate remedy for breach of their rights. The balance of convenience favours granting the orders sought. The applicants concede that in The State (O’Rourke) v.Kelly [1983] IR 58 the constitutionality of s.62 (3) of the 1966 act was challenged on the basis that its mandatory nature constituted an unwarranted intrusion into the judicial domain. The Supreme Court rejected this. However, the applicants argue that they are making a more wide ranging challenge to the constitutionality of the section. They rely on Laurentiu v.Minister for Justice [1999] 4IR 26 where it was held that the upholding of the constitutionality of an enactment against a particular ground of attack did not preclude the court from reconsidering the matter in another case in the light of a quite different form of attack. They argue that support for the proposition that the High Court may grant an injunction restraining a perceived breach of constitutional rights by the state in to be found in Byrne v. DCC (2009) IEHC 122 where Murphy J. granted an interlocutory injunction prohibiting the prosecution of district court proceedings pending the hearing of an application for a declaration pursuant to s.5 of the ECHR Act 2003. Respondents’ Submissions “(a) there is no tenancy in—
(ii) any building or part of a building of which the authority are the owner and which is required by them for the purposes of this Act, or (iii) a dwelling of which the National Building Agency Limited is the owner, whether by reason of the termination of a tenancy or otherwise, and
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.” The respondents submit the grounds for challenge first arose, and the time for bringing the proceedings ran, from the date of the service of the notice to quit and demand for possession on the 12th January, 2010. Kearns J. stated in Dublin City Council v. Fennell (2005)1 IR 604 at pages 638 and 639:-
The court is referred to a number of cases; In Quinn v. Athlone Town Council & Ors [2010] IEHC 270 the failure of the applicant to challenge the notice to quit was deemed to be fatal to the applicant’s proceedings. This court refused the applicant’s application for judicial review finding that the applicant ought to have challenged the notice to quit. See para. 22 :-
In De Roiste v. Minister for Defence [2001] 1 IR at page 216 Fennelly J. discussed O84 R 21 stating:-
‘If a person comes to the High Court seeking certiorari to quash the decision of the Crown Court –or any other tribunal for that matter-he should act promptly and before the other party has taken any step on the faith of the decision. Else he may find that the High Court will refuse him a remedy. If he has been guilty of any delay at all, it is for him to get over it and not for the other side’.” Where an applicant has failed to act promptly the onus is on the applicant to explain the circumstances of the delay and seek to produce a satisfactory explanation for it. In Dekra Eireann Teoranta v. Minister for Environment [2003] 2 IR 270 Fennelly J. stated at p.304:-
b) The conduct of the applicant; c) The conduct of the respondents; d) The effect of the order under review on the parties subsequent to the order being made and any steps taken by the parties subsequent to the order to be reviewed; e) Any effect, which may have taken place on third parties by the order to be reviewed; f) Public policy that proceedings relating to public law domain take place promptly except where good reason is furnished.” 6.2 The applicants argue that any tenant should have a right, protected by article 8 of the European Convention on Human Rights to a merits based, independent hearing in order to determine whether a warrant for possession should be granted. In this case the applicants owe €19,280 in rent arrears. The applicants accept that these arrears exist. In order to ensure that the differential rents scheme continues to function the respondents submit the s.62 mechanism is a necessary, legitimate and proportionate solution to serious breach of covenants to a tenancy agreement.Thus, the second and third named respondents submit that s.62 is compatible with the constitution and the first named respondent further submits that the granting of any declaration of incompatibility with same is a discretionary remedy. In State (O’Rourke) v. Kelly [1983] IR 58 the constitutionality of s.62 was challenged on the grounds that subsection (3) thereof was an unwarranted interference in the judicial domain and constituted an interference with the function of the District Court judge in the administration of justice by depriving him of any real discretion in determining an application under S.62 (1) as it imposed on him a mandatory obligation to issue a warrant. This was rejected by the Supreme Court who considered that s.62 was no different from many statutory provisions which make it mandatory for a court, on proof of certain matters, to make a specified order. The first named respondent relies on the case of Leonard v. Dublin City Council & Ors [2008] IEHC 79 in submitting that the state in making decisions is afforded a wide margin of appreciation in matters concerning social policy e.g. the provision of affordable housing and the regulation of same. In that case Dunne J. noted at p 79-80:-
The case of Yordanova & Ors. v. Bulgaria (No 25446/04 24th April 2012) places considerable emphasis on the requirement for reasons for infringement of article 8 rights to be furnished to a tenant. The respondents submit that there is no reason for the determination of the applicant’s tenancy other than the unquestionable fact of their considerable rent arrears of which the applicants were fully aware. They needed no reasons. The only remedy available to the respondent in this instance was to serve a notice to quit and the respondents contend that this was proportionate. In Leonard v. Dublin City Council & Ors. [2008]IEHC 79 Dunne J reflected on the impact of the decision in Connors v. UK (Application no.66746/01):-
The issue which the court must deal with is whether the respondents can pursue an eviction under s.62 where the facts of the matter are undisputed i.e. the tenants are in breach of a condition of the tenancy agreement in that they have failed to pay rent. The affidavits of the applicants do, in fact, disclose that there are some disputes of fact regarding anti-social behaviour but the respondents are no longer pursuing this therefore what remains is the undisputed fact of rent arrears. The law in such a situation appears clear following the cases of Donegan v. Dublin City Council [2012] IESC 18 and Dublin City Council v. Gallagher [2009] IESC 354. In Donegan Mc Kechnie J. found that where no conflict of fact existed the requirement for procedural safeguards was not triggered. At para.140 of the judgment he noted:-
These cases demonstrate that there must be some dispute as to the facts before procedural safeguards in relation to rights such as those found under article 8 of the ECHR are required. Similar to Gallagher in this instance the fact of arrears is not in dispute thus the respondents submit the s.62 procedure is valid. 6.3 The applicant submits that the so called severability challenge raised on the basis that the respondents intend to proceed now only on the grounds of arrears of rent was not raised in the grounds upon which leave was sought. Once they were notified of this, they should have amended their grounds. In fact the point was first raised during oral submissions at the hearing. It is thus not properly before the court and should not be addressed. 6.4 The applicants claim that the different treatment between public and private law tenants is in violation of their constitutional guarantee of equality for all citizens. The respondents argue that the object of the guarantee of equality under the constitution is to forbid arbitrary, unreasonable or unjust discrimination-this does not however mean that all people must be treated equally in all circumstances. In Quinn’s Supermarket v. AG [1972] IR 1 Walsh J. stated at p.13:-
In the Donegan and Gallagher cases Mc Kechnie J. indicated such difference in treatment between local authority and private tenants was justifiable and held it could not be considered discriminatory and contrary to article 14 of the European Convention on Human Rights as it was found to be in Connors and Mc Cann v. the United Kingdom (no.19009/04). He stated at para.137:-
6.5 With regard to the applicants’ claim that the respondents’ action herein is not in conformity with their personal and property rights under the constitution. The respondents refer the court to Central Dublin Development Association v. Ag [1975]108 ILTR 69 where Kenny J. in respect of the constitutional guarantee of protection of property rights held at p.85:-
(6) The courts have jurisdiction to inquire whether the restriction is in accordance with the principles of social justice and whether the legislation is necessary to reconcile this exercise with the demands of the common good.”
In Finlay v Laois County Council (unreported High Court 20th December 2002) Peart J. refused an injunction to the plaintiff preventing the county council from entering onto the plaintiff’s lands on foot of a warrant issued pursuant to s.78 (4) of the Road Act 1993, holding that the plaintiff had to establish a fair case that her property rights had been infringed. Peart J. noted:- “Any contention by the plaintiff that the defendants are not entitled to enter their property because to do so is a breach of their constitutional rights, ignores the fact that the constitution provides a limitation of that and other rights where the exigencies of the common good so demand.” In this case the exigencies of the common good mean the housing authority needs to be able to manage the limited housing and resources available in an efficient manner and ensure that houses unlawfully occupied are vacated efficiently so they can be allocated to others. This means that the procedure set down by s.62 is necessary, is proportionate to what it seeks to achieve and is in accordance with the applicant’s rights under Articles 40.3.2 and Article 43 of the constitution. 6.6 The applicants have also referred the court to the decisions of the European Court of Human Rights in Yordanova & Ors v Bulgaria (application no.25446/06), Bjedov v. Croatia (application no.42150/09 and Buckland v. UK (application no.40060/08. The respondent argues that none of these cases are analogous to the present situation in that none of them involved an accepted breach of a fundamental term of the tenancy agreement, in this case being the non-payment of rent. All three cases had something in common which does not feature in this case i.e. each applicant had a point to make which they could not make in their own country as the mechanism for challenge in their respective countries did not permit a merits based determination and therefore they were denied their article 8 rights. Mc Kechnie J. in Donegan and Gallagher reviewed the European Court of Human Rights case law and at para.135 concluded :-
The applicants have no point to make in relation to the arrears save for accepting that they exist. Here irrespective of the outcome of the case the applicants will still be left owing €19, 280 in rent arrears. Decision of the Court
(ii) alleged retrospective alteration of the respondents’ reasons for instituting s. 62 procedure; (iii) the s. 62 procedure discriminates between public housing tenants and private law tenancies; (iv) the constitutional protection of the home ; and (v) the s. 62 procedure is not in accordance with Article 8 of the European Convention on Human Rights as set out in the recent case law of the European Court of Human Rights. 7.1 The application for leave was made on the 12th July, 2010. The applicants challenge the s. 62 procedure invoked by the respondents herein. The applicants do not challenge the notice to quit. That notice served on the 12th January, 2010 thus is now beyond challenge. The consequence of this is that the applicants no longer have a valid tenancy in the house in question and remain there as a trespasser. The applicants have lived in the house since 1985 and it has been their home since this time. The applicants first became aware of the possible use of the s. 62 procedure on the 22nd February, 2010 when the respondents issued and served a demand for possession of the premises and indicated their intention to initiate proceedings under s. 62. The respondents did not do so, however, until the 3rd June, 2010 when they applied under the section to Dun Laoghaire District Court. The applicants brought their application five weeks later. In all the circumstances it seems to me that their challenge to the s. 62 procedure was made not only within the time allowed, but promptly as well. This case differs from Quinn and Robinson (cited above) in that it is not the notice to quit that is challenged but the use of the s. 62 procedure. It was not clear the respondents were removing under this statutory provision until they actually did so. Alleged retrospective alternation of the respondents’ reasons Section 62 proceedings discriminate between public housing tenants and private tenants The justification for difference in treatment lies in the duty which the housing authorities bear to provide housing free or at very low cost to those in need. It is an onerous duty and a very important one. No such duty lies on the owners of private property. In meeting that obligation, the housing authorities will have to manage limited resources, i.e. its stock of housing. If tenants such as here are not paying rent, this obviously deprives the housing authority of the revenue needed to meet its obligations. This also in turn impacts upon those whose needs cannot be met due to the limited financial resources of the housing authority. There cannot therefore be any arbitrariness, unreasonableness, caprice or unjust discrimination found in this different treatment of citizens. It is a legitimate process to achieve a balance between the rights of those enjoying the benefit of public housing and those whose need for housing cannot be met or adequately met. There is a strong presumption of constitutionality in regard to the s. 62 procedire which is central to the management by the housing authority of its housing stock. It seems to me that this presumption has not been overturned. Thus, there appear acceptable and fair reasons for the distinction that it made in providing the summary procedure herein. This ground, therefore, fails. The constitutional protection of property rights
(1) the right of private property is a personal right; (2) in virtue of his rational being, man has a natural right to individual or private ownership of worldly wealth; (3) this constitutional right consists of a bundle of rights most of which are founded in contracts; (4) the State cannot pass any law which abolishes all the bundle of rights which we call ownership or the general right to transfer, bequeath and inherit property; (5) the exercise of these rights ought to be regulated by the principles of social justice and the State accordingly may by law restrict their exercise with a view to reconciling this with the demands of the common good; (6) the courts have jurisdiction to inquire whether the restriction is in accordance with the principles of social justice and whether the legislation is necessary to reconcile this exercise with the demands of the common good; (7) if any of the rights which together constitute our conception of ownership or abolish or restrict it (as distinct from the abolition of all the rights), the absence of compensation for this restriction or abolition will make the act which does this invalid if it is an unjust attack on the property rights.” 7.5 The s. 62 procedure is not in accordance with the provisions of Article 8 of the European Convention on Human Rights
7.6 The applicants go further, however, in their grounds and seek thereby to justify their case for a declaration of incompatibility on the ground at (e)(iv) that the use of the s. 62 procedure did not afford the applicants the opportunity to dispute the lawfulness or the proportionality of the decision to evict them. In argument at the hearing, the applicants, accepting that there was no longer a factual dispute, argued that more recent case law of the European Court of Human Rights had gone further. That Court has decided recently that even where a tenant had no legal right to occupy a flat which was her home, she was still entitled to have the benefit of an independent tribunal to determine the proportionality or reasonableness of evicting her from her home. See Bjedov v. Croatia (Application 42150/09), 29th May, 2012 and Buckland v. United Kingdom (application No. 40060/08, 18th September, 2012). These case were decided in Strasbourg after the Supreme Court judgment in Donegan. The applicants argue, relying upon those judgments, that a person in her position as the unlawful occupant of a local authority flat who does not argue that there exists any factual dispute, is still entitled to have the benefit of an independent tribunal to determine whether it was disproportionate to evict her from her home. 7.7. In Bjedov the applicant, following protracted and complex litigation in Croatia was eventually, finally determined to be unlawfully resident in a local authority flat. The central question for the Court was whether the undoubted interference with her Article 8 right to her home was proportionate to the aim pursued and thus “necessary in a democratic society”. It was accepted she had no legal right to remain in her home. The question was whether in all the circumstances it was proportionate to evict her. The national courts had decided the highly complex question as to her legal status but had not made any analysis as to the proportionality of evicting her. Dealing with this at para. 68, the Court of Human Rights found;
69. The Court also takes note of the Government’s argument that the social services expressed their readiness to accommodate the applicant in a foster family or in the Home for the Elderly and Infirm in Zadar, if she were to be evicted, and to cover the difference between the cost of such accommodation and the applicant’s income, as well as to institute relevant proceedings in that respect of their own motion. However, the Court also notes that, even though the applicant’s case was brought to their attention a long time ago, and the applicant’s eviction became imminent after the Zadar Municipal Court decided on 11 May 2011 to continue with enforcement, those authorities have not to date instituted the relevant administrative proceedings with a view to granting her the promised accommodation. 70. Another element of importance is the following. In circumstances where the national authorities, in their decisions ordering and upholding the applicant’s eviction, have not given any explanation or put forward any arguments demonstrating that the applicant’s eviction was necessary, the State’s legitimate interest in being able to control its property comes second to the applicant’s right to respect for her home. Moreover, where the State has not shown the necessity of the applicant’s eviction in order to protect its own property rights, the Court places a strong emphasis on the fact that no interests of other private parties are likewise at stake.”
7.9 I do not think that the facts of this case, had they been present in Bjedov or Buckland, would have led to a finding of a violation. On the facts herein, I consider it is possible to predict what decision would have been reached by the District Court had it been able to consider the proportionality of the order to evict. I do not think, therefore, that in this case an eviction order could give rise to a finding of incompatibility on the grounds of non-consideration of the proportionality of the eviction measure. There is, to put it quite simply, no proportionality case to argue here. It may well be that in the light of Bjedov and Buckland, the Irish courts may eventually find that the absence of an independent tribunal to determine the proportionality of an eviction from a home may give grounds for a declaration of incompatibility even where there is no factual dispute. The circumstances here, however, do not support such a finding. 7.10 For the reasons outlined above, the reliefs sought by the applicants in this case are refused. |
