High Court of Ireland Decisions

Dublin City Council v. McGrath [2004] IEHC 45 (12 March 2004)

 
HIGH COURT

RECORD NO. 2003/15897P

BETEWEEN/

DUBLIN CITY COUNCIL

PLAINTIFF

AND LAURA McGRATH

DEFENDANT

Judgment of Carroll J. delivered the 12^th day of March, 2004.

The defendant is a tenant of the plaintiff, Dublin City Council, in Eamonn Ceannt Tower in Ballymun, which is due to be demolished as part of the Ballymun Regeneration Programme. There were originally 90 tenants in the Tower, 88 of whom have been re-housed by the Council; only the defendant and one other tenant, Veronica McDonald and her family remain.

The defendant's tenancy agreement dated 21^st March, 1995 provides that the tenancy might be terminated at any time on giving four weeks' notice by either party. Clause 28 provides that the tenant should on the termination of the tenancy peaceably and quietly deliver up possession of the dwelling to the Corporation (the predecessor in title to the Council).

Having endeavoured to come to agreement with the defendant by offering different alternative accommodation, the Council gave notice to quit, dated 11^th November, 2003, in accordance with the tenancy agreement to the defendant to deliver up possession on 15^th December, 2003. Notice to quit was duly served. Prima facie the defendant is now a trespasser.

The defendant had applied for a transfer out of the area on18^th September, 1996. The defendant, who is a single mother with one young son now aged ten, wants a transfer to Finglas, where her parents reside. Her son has been under the care of Temple Street Hospital since he was four years of age and has had a lot of surgery to his hip which has been weakened due to cysts. He has been in a wheelchair post-operatively for a time but is not now. The defendant is the youngest of eleven siblings, many of whom live in Finglas. Her son is enrolled in school in Finglas and he goes after school to his grandparents where he is collected by his mother, the defendant, after she finishes work.

Having been previously refused, the defendant was awarded overall medical priority on 15^th December, 2003, for suitable accommodation due to the physical condition of her son. She is placed in a queue of people with a similar medical priority seeking accommodation in Finglas.

The alternative accommodation which the defendant has been offered includes (1) a 60 sq. m., 2-bedroomed apartment at site 372, Gerry Cahill, Ballymun, (2) a 60 sq. m., 2-bedroom bungalow at 443 Cahill Crimmins, Ballymun, (3) a newly-constructed house at 11 Woodhazel and (4) temporary alternative accommodation in a flat at 82 Sillogue Avenue, pending transfer to Finglas. She is not willing to accept any of these.

In her affidavit she says that far from refusing to vacate her premises in Ballymun she is most anxious to quit Ballymun and all she seeks is suitable alternative accommodation in Finglas. Further, she says her son has been required to live in unsuitable conditions. Her quality of life in the flats has been non-existent for the last number of years. She has been forced to endure having industrial construction work all around her. She suffered regular disruption to services for many months. She has been without water, heating, electricity, cable and telephone at regular intervals and for protracted periods. She says she is not seeking to frustrate the demolition of the tower but is seeking to ensure the Council exercises its statutory power in a reasonable and rational manner to offer her appropriate alternative accommodation. She says any offer of accommodation in Ballymun will not address her housing need. So her position is that no matter what accommodation she is offered in Ballymun, it is not suitable.

The Council avers it has not suitable accommodation in Finglas and that in any event she must take her place in the queue. It estimates it will take about a year to eighteen months for her to be re-housed in Finglas. On behalf of the Council it is stated that until the tower is vacated the proposed contractor would not be in a position to proceed to carry out demolition. Delay in entering into a contract may result in the project having to go through the tendering process again and result in increased building costs. Delays in demolition of the tower may have a detrimental affect on funding for the leisure centre and civic amenities. If the tower is not demolished the entire project, which costs approximately €42 million, will be thrown off course and considerable delay and expense incurred as a result. There will be inconvenience to the tenants of other blocks who are awaiting work to commence on their blocks. The anticipated date for gaining possession of the tower was the 10^th November, 2003.

The conditions described in the Tower are horrific. The tower has become a hive of antisocial behaviour. The local Guards state in a letter of 15^th December, 2003 that local youths gather on the stairwell, drinking, injecting, dealing heroin and engaging in disorderly conduct. One of the photographs shows a syringe full of blood on the stairs. The defendant has erected a steel gate at her entrance, which is a fire hazard. The defendant says the gate was erected for security as the building is derelict. She too acknowledges that there are syringes lying around, that there are drug addicts attacking tenants while high on drugs and says she and her son are breathing in vomit, urine and faeces on a daily basis. She describes the conditions as being unfit for animals, let alone humans.

The Council comes to court seeking a mandatory order that the defendant deliver up vacant possession of her flat in Eamonn Ceannt Tower, Ballymun.

Since the plenary summons claims damages for trespass, I indicated that I would prefer to approach the application on the basis of an injunction to restrain trespass. This would entail an amendment to the pleadings claiming this relief as an alternative to an order for possession.

An application for an interlocutory injunction must be considered in the light of Campus Oil v. Minister for Industry No. 2, [1983] I.R. 88. In order to grant an injunction there must be a fair question to be tried, damages must not be an adequate remedy and the balance of convenience must be in favour of granting the injunction.

It is submitted by the defendant that in addition the court must take the European Convention on Human Rights into account.

Under the European Convention on Human Rights Act, 2003, section 2 provides:

"1. In interpreting and applying any statutory provision or rule of law, a court shall, insofar as possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions."

Section 3 provides:

"1. Subject to any statutory provision (other than this Act), or rule of law, every organ of State shall perform its functions in a manner compatible with the State's obligation under the Convention provisions."

The Court being a body through which the judicial powers of the State are exercised is under the definition section an 'organ of the State'.

The relevant article is Article 8.

"Right to Respect for Private and Family Life:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society, in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

I accept the defendant's submission in relation to the European Convention on Human Rights.

The first question to be decided is whether there is a right to an injunction in the first place. The defendant submits that the status quo must be preserved, citing the passage in Campus Oil at p. 106 where O'Higgins C.J. says:

"Interlocutory relief is intended to keep matters in statu quo until the trial and to do no more. No rights are determined nor are issues decided. I think the principle is stated correctly in the following passage from Kerr on Injunctions which was noted by Lavery J. in The Educational Company case:

'In interfering by interlocutory injunction the court does not in general profess to anticipate the determination of the right but merely gives it as its opinion that there is a substantial question to be tried and that till the question is right for trial a case has been made out for the preservation of the property in the meantime in statu quo.' "

The defendant also cited Dublin Corporation v. Burke (Supreme Court, 9^th October, 2001, Geoghegan J.,) reversing what was basically an order for possession in a shopping centre, made against a defendant who was in possession when the Corporation bought the property and who claimed title to a tenancy. At p. 17 Geoghegan J. said:

"But even before one comes to consider the balance of convenience, I am extremely doubtful that there would even be a prima facie case for an injunction where a defendant with some back-up evidence (if ultimately accepted) is alleging an actual tenancy in the premises and the plaintiff is for all practical purposes merely sceptical of the truth of the allegation."

In my view there is no comparison between the defendant in that case claiming a commercial tenancy in a shopping centre and the present defendant claiming she is entitled not to be disturbed in a flat where the conditions are sub-human and where the safety and health of herself and her young son are in danger. She does not want to remain and says so. What she wants is a tenancy in the area of her choice.

While generally the court will preserve the status quo, in my opinion, in the extraordinary circumstances of this case, the court is not constrained ab initio from considering whether an injunction might be granted.

The defendant raises the following issues as issues to be tried at a full hearing.

1. Since an injunction is a discretionary remedy the court is entitled to have regard to other possible remedies. Under s. 62 of the Housing Act, 1966, where there is a refusal to deliver up, the Council could apply to the District Court and if the proofs are in order the District Court can issue a warrant. There is no substantive defence except by way of judicial review (see Dublin Corporation v. Hamilton [1999] 2 IR 486). Alternatively the Council could have brought an action for ejectment for over holding or issued a summary summons claiming possession and then bring a motion before the Master to enter final judgment. Instead the Council has brought a High Court action seeking an injunction.

I do not consider that this is a fair issue to be tried at a full hearing. It could be relevant to a decision whether or not to grant an interlocutory injunction. The Council says it did not pursue a remedy under s. 62 of the Housing Act, 1966, as such a course tended to end up in judicial review with an appeal to the Supreme Court.

In my view, the Council is entitled to come directly to the High Court in an appropriate case, which this is. If the Council have opted for a more expensive form of relief it can be dealt with if necessary by way of costs. It does not go to the merits of the case.

2. The fundamental issue for the defendant is that as a local authority the Council exercises statutory powers under the Housing Acts. In order to be entitled to seek an injunction it must exercise its powers properly. If they have not been exercised properly it is good ground to refuse relief (citing McDonald v. Feeley, Unreported, Supreme Court 23^rd July, 1980). In that case the Supreme Court allowed an appeal from the High Court and discharged an interlocutory injunction from the High Court restraining Dublin County Council from taking steps to remove the plaintiff and her family from a site she occupied as a trespasser. In the interval between the granting of an interim injunction and Supreme Court hearing, the housing needs of the plaintiff were considered by Dublin Corporation and consideration was given to what was adequate and suitable accommodation. Two different chalets were offered. The Supreme Court, with reference to the chalet at Rathfarnham, considered the rights of the County Council were at the time of hearing being properly exercised with such regard as was possible in the circumstances to the housing needs of the plaintiff and her family. This was in contrast to the position when interim relief was applied for and continued on an interlocutory basis where the County Council disclaimed any duty to provide adequate housing. The plaintiff in that case feared the possibility of intimidation at the site by another family but O'Higgins C.J said "She cannot be accorded a right of veto over what is proposed merely because of the possibility of unlawful action by others". He said he was sure appropriate steps would be taken by the Garda authority. He also said at p. 12, "The securing of a chalet through Dublin Corporation is in the circumstances a reasonable discharge by the defendants of their duty as a housing authority".

While this case is authority for the proposition that a local authority which fails to consider the housing needs of a person within their jurisdiction, is not acting in accordance with its duty and cannot eject a trespasser, it is also authority for the corollary that if there has been reasonable discharge of this duty by considering the housing needs, an authority will not be restrained from moving on a trespasser.

The defendant claims that while she was granted medical priority on medical grounds in December 2003, the medical condition of her son existed for many years prior to that. There was no change. If she had been granted priority earlier, as she claims she was entitled to, she would have long since gone to the top of the medical priority list and have been re-housed in Finglas. Since the Council failed to deal properly with this question, the Council could not validly issue the notice to quit. I accept that this is an issue to be tried at the hearing of the action.

The defendant also raises the issue that the Council as an organ of State must perform its functions in a manner compatible with the State's obligations under the Convention of Human Rights. She claims that it failed to respect the private and family life and home of the defendant under Article 5. This is another issue to be tried at the hearing of the action.

I am satisfied that damages would not be an adequate remedy for the Council.

On the balance of convenience there are very many weighty reasons why the Council requires possession of the tower which are set out earlier in this judgment. The balance of convenience for the defendant is that she wants to go to the area of her choice. She is not defending a home in which she wants to stay.

The conditions in Eamonn Ceannt Tower are dangerous to the health and safety of herself and her son. She has been offered reasonable alternative accommodation and she is attempting to coerce the Council into granting her a house, which they do not in fact have in Finglas, ahead of all others on the medical priority list. I will not support the defendant in her efforts to achieve this end.

What is at stake is a period of a year to eighteen months until the defendant can reasonably be expected to reach the top of the medical priority list for transfer to Finglas.

I am of opinion that the balance of convenience is very much in favour of the Council. I will grant an injunction to restrain trespass by the defendant in Eamonn Ceannt Tower subject to the defendant being given a temporary tenancy in Ballymun in premises which the Council have made available. I will hear submissions on the exact location, as a further offer has been made.

If I am wrong in granting the injunction, it is open to the defendant to claim damages.