APPROVED [2025] IEHC 290
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THE HIGH COURT
2024 341 MCA
IN THE MATTER OF SECTION 123 OF THE RESIDENTIAL TENANCIES ACT 2004
BETWEEN
JOSEPH DORAN
APPELLANT
AND
RESIDENTIAL TENANCIES BOARD
RESPONDENT
AMENA GHNEDI
ESSAM BENSAAD
NOTICE PARTIES (BY ORDER)
JUDGMENT of Mr. Justice Garrett Simons delivered on 22 May 2025
1. This matter comes before the High Court by way of an appeal on a point of law from a determination of the Tenancy Tribunal of the Residential Tenancies Board.
2. The resolution of this appeal requires consideration of the statutory concept of a "room" in the context of the phrase "a permanent increase in the number of rooms in the dwelling" (Section 19(5A) of the Residential Tenancies Act 2004). In particular, the appeal requires consideration of whether a partitioned area within a dwelling, which cannot lawfully be used for living or sleeping purposes because it is non-compliant with building regulations and the statutorily prescribed standards for rented accommodation, might nevertheless be regarded as a "room". The issue arises in the context of an attempt by a landlord to avail of an exemption from the rent restriction rules otherwise applicable to a rent pressure zone.
4. The principles governing the High Court's jurisdiction on an appeal on a point of law are well established. See, in particular, Fitzgibbon v. Law Society [2014] IESC 48, [2015] 1 IR 516 (at paragraphs 127 and 128 of the reported judgment).
"However, notwithstanding the potential difficulties with the application of the test and the inevitability and contestability of sometimes marginal cases, there is a clear distinction in principle which must be respected and honoured in practice. An appeal on a point of law is not a rehearing. An appellate court does not retry the issues and substitute its own view of the merits for that of the primary decision-maker, particularly since its understanding of the facts is gleaned through the imperfect prism of a transcript. Its view of the merits is not the issue and is not a legally relevant factor."
"Where the High Court concludes that there is an error of law, the order it may make depends upon the error identified, in the same way as the order this Court or the Court of Appeal may make in an appeal. In some cases, if the court concludes that there has been an erroneous finding of primary fact which led to a conclusion in favour of a party, then the court may allow the appeal and set aside the order made and substitute the order which follows from that conclusion. Similarly, if there is an error of law and the correct understanding and application of the law would lead to the contrary conclusion, then the court is entitled to allow the appeal and substitute that conclusion. There may, however, be circumstances where the error identified cannot lead to the substitution of a final order by the court, and may mean that the case has to be remitted to the primary decision-maker. None of this however, expands the court's jurisdiction to substitute an order it considers appropriate for that made by the primary decision-maker. The order which the court makes on an appeal on a point of law, is still constrained because it is an appeal on a point of law."
7. The principles in Fitzgibbon have been applied in the specific context of an appeal under section 123 of the Residential Tenancies Act 2004 in a number of High Court judgments. In Marwaha v. Residential Tenancies Board [2016] IEHC 308, the High Court (Barrett J.) summarised the principles as follows (at paragraph 13):
"What principles can be drawn from the foregoing as to the court's role in the within appeal? Four key principles can perhaps be drawn from the above-considered case-law:
(1) the court is being asked to consider whether the Tenancy Tribunal erred as a matter of law (a) in its determination, and/or (b) its process of determination;
(2) the court may not interfere with first instance findings of fact unless it finds that there is no evidence to support them;
(3) as to mixed questions of fact and law, the court (a) may reverse the Tenancy Tribunal on its interpretation of documents; (b) can set aside the Tenancy Tribunal determination on grounds of misdirection in law or mistake in reasoning, if the conclusions reached by the Tenancy Tribunal on the primary facts before it could not reasonably be drawn; (c) must set aside the Tenancy Tribunal determination, if its conclusions show that it was wrong in some view of the law adopted by it.
(4) even if there is no mistake in law or misinterpretation of documents on the part of the Tenancy Tribunal, the court can nonetheless set aside the Tribunal's determination where inferences drawn by the Tribunal from primary facts could not reasonably have been drawn."
9. The Supreme Court has confirmed that an appeal on a point of law encompasses errors such as "defective or no reasoning" (Attorney General v. Davis [2018] IESC 27, [2018] 2 IR 357).
10. Finally, it should be emphasised that the point of law must arise from the determination under appeal. The High Court is not hearing the matter de novo, but rather is considering the legality of the decision of the Tenancy Tribunal. The High Court should normally decline to decide a point of law which had neither been argued before, nor decided by, the Tenancy Tribunal. See, by analogy, Governors & Guardians of the Hospital for the Relief of Poor Lying-in Women, Dublin v. Information Commissioner [2011] IESC 26, [2013] 1 IR 1 (at paragraph 90 of the reported judgment). See also the judgments of the High Court in Hyland v. Residential Tenancies Board [2017] IEHC 557 (at paragraphs 25 to 27) and Ashe v. Residential Tenancies Board [2023] IEHC 627 (at paragraphs 24 to 27). It is impermissible to attempt to raise a factual issue, for the first time, in the context of an appeal on a point of law.
11. By virtue of Order 84C of the Rules of the Superior Courts, the appropriate respondent to the appeal is the Residential Tenancies Board (formerly known as the Private Residential Tenancies Board). For ease of exposition, I will refer to the appellant as "the Landlord"; the decision-maker as "the Tenancy Tribunal"; and the Residential Tenancies Board as "the RTB" or "the Board". The two tenants have been joined as notice parties to these proceedings by order dated 14 October 2024. They will be referred to collectively as "the Tenants". The relevant dwelling is located at 25 The Garth, Kingswood Heights, Tallaght, Dublin 24.
12. This appeal concerns the validity of a notice of rent review. The Landlord had sought to invoke the exemption under section 19(5) and (5A) of the Residential Tenancies Act 2004. This exemption allows for an exception to the rent restriction rules, otherwise applicable to a rent pressure zone, where certain criteria are satisfied. This appeal is concerned with whether the following criterion had been satisfied: works carried out to the dwelling had resulted in a permanent increase in the number of rooms in the dwelling.
13. The Landlord had argued that works had been carried out which rendered a bedroom, which had not previously been compliant with the ventilation and fire safety requirements applicable to a bedroom, compliant. The Landlord argued that—prior to the works having been carried out—the bedroom could only be classed as a storage area and not a "room". This argument had been advanced notwithstanding that the area had already been in use as a bedroom prior to the works. The denouement of the argument had been that by bringing the (existing) bedroom into regulatory compliance, the Landlord had effectuated an increase in the number of rooms.
14. The Tenancy Tribunal determined the issue as follows:
"The Landlord's evidence and his engineer's report concentrated on the submission that because there was no proper independent access to the front bedroom it could not be classed as a 'habitable' room. The difficulty with the Landlord's argument is that subsection (a)(iii)(III) refers to 'a permanent increase in the number of rooms in the dwelling' and there is no reference to 'habitable' rooms either before or after the works are carried out. In the present case the internal layout of the upstairs of the dwelling was altered to move the existing bathroom. However, this did not lead to any actual increase in the number of rooms in the dwelling. The alteration of the layout meant that the works satisfied the requirement at subsection (a)(iii)(I) but not the requirement at (a)(iii)(III).
While both sides made reference to the building regulations and fire safety issues, the Tribunal is of the view that the building regulations are of no relevance to the question of whether or not the works to the dwelling resulted in a permanent increase in the number of rooms in the dwelling. In any event, if there was any non-compliance with the building regulations (which the Tribunal does not need to consider) the Landlord may have been required to rectify the defect pursuant to his obligations under section 12(1)(b) of the 2004. Pursuant to section 19(5A)(b) of the 2004 Act any such works cannot be taken into consideration for the purposes of the RPZ exemptions.
Having regard to the foregoing the Tribunal is satisfied that the Notice of Rent Review served by the Appellant Landlord on the Respondent Tenants on 20 October 2022 is invalid."
15. The relevant determination order is dated 12 June 2024 and was notified to the parties on 20 June 2024. These proceedings were instituted by way of originating notice of motion on 10 July 2024, i.e. within the twenty-one day time-limit.
16. There was an initial procedural skirmish as to whether the notice of motion complied with the requirement, under Order 84C, rule 2, to state concisely the point of law on which the appeal is made. The notice of motion had been prepared without legal assistance and is somewhat prolix. The Landlord has since retained solicitor and counsel. The RTB, very fairly, did not press this procedural objection at the hearing in circumstances where the precise point of law being relied upon has since come into sharp focus in the written legal submissions prepared by counsel on behalf of the Landlord.
17. The appeal came on for hearing before me on 1 May 2025. The Landlord and RTB were each represented by solicitor and counsel. The Tenants appeared as litigants in person and Amena Ghnedi made a helpful oral submission to this court, having previously filed an affidavit on 28 April 2025.
18. Before turning to the substance of the appeal, it is convenient to dispose of one subsidiary issue as follows. The Landlord had advanced, in the alternative, an argument that the Tenancy Tribunal had failed to provide an adequate statement of the reasons for its determination. This argument very much represented a fallback position.
19. As explained in O'Sheehan v. Residential Tenancies Board [2024] IEHC 409, it is essential to the effective exercise by the High Court of its appellate jurisdiction that the rationale of the first-instance decision-maker be disclosed. Were it otherwise, substantive errors of law would go uncorrected. The first-instance decision-maker, by delivering an inscrutable decision, would be able to shield its decision from appeal. It follows that the failure on the part of a decision-maker, such as the Tenancy Tribunal, to state adequate reasons for its decision must itself be regarded as an error of law which is amenable to an appeal on a point of law.
20. This does not entail an onerous obligation to state reasons nor a requirement that the Tenancy Tribunal provide a detailed discursive decision. What the Tenancy Tribunal cannot do, however, is to fail to address at all the principal issues in the appeal.
21. The operative part of the Tenancy Tribunal's decision has been cited above (at paragraph 14). Whereas the decision is certainly spare, the reasoning is tolerably clear. It is apparent from the Tenancy Tribunal's decision that it resolved the proceedings before it by attributing a very broad definition to the term "room". The Tenancy Tribunal interpreted the term as extending even to an area which cannot lawfully be used for living or sleeping purposes because it is non-compliant with building regulations and the statutorily prescribed standards for rented accommodation. On this broad interpretation, it had not been necessary for the Tenancy Tribunal to reach findings of fact as to the nature and extent of the accommodation prior to, and subsequent to, the works carried out by the Landlord. The rationale underlying the decision has, therefore, been stated adequately. Of course, whether this rationale is legally correct is a separate question.
22. For completeness, it should be recorded that the chairperson of the relevant panel of the Tenancy Tribunal has sworn an affidavit in response to the appeal to the High Court. The content of this affidavit consists, in large part, of a recitation of the procedural history and a rehearsal of the Tenancy Tribunal's determination. At some points, however, the chairperson seeks to elaborate upon the reasoning. With respect, this is impermissible. It is not open to the Tenancy Tribunal to seek to improve upon its reasoning ex post facto. There is a statutory duty to state reasons contemporaneously.
23. This appeal gives rise to two points of law as follows. The first is whether the term "room" is confined to an area intended for living or sleeping purposes, or whether, alternatively, it also embraces an area intended for storage. The second is whether, in order to avail of the exemption from the rent restriction rules, the area must be capable of being lawfully used, i.e. in the sense of being compliant with applicable legislation (including, in particular, the building regulations and the statutorily prescribed standards for rented accommodation).
24. The Tenancy Tribunal, in its determination, purported to give a broad definition to "room", rejecting an argument on the part of the Landlord that the term meant "'habitable rooms' that are health and safety compliant". The Tenancy Tribunal also stated that "the building regulations are of no relevance to the question of whether or not the works to the dwelling resulted in a permanent increase in the number of rooms in the dwelling".
25. The Residential Tenancies Board adopted a similar stance for the purpose of the appeal to the High Court. Counsel on behalf of the RTB submitted that a self-contained area with a ceiling, walls, floor and a door constitutes a "room". The "room" does not have to be habitable to a particular degree or to have a particular function. There is no requirement that the "room" meet any minimum standards in terms of, for example, floor area, height or ventilation. Counsel accepted that, under this contended-for interpretation, the creation of a storage space under the stairs of a dwelling would, in principle, involve the creation of a new "room" irrespective of how small that space might be.
26. Counsel sought to attach significance to the fact that whereas certain concepts under section 19(5A) of the RTA 2004 (such as "floor area") are defined by way of cross-reference to the Building Regulations 1997 (S.I. No. 497 of 1997), there is no such cross-reference in the case of a "room". It is submitted that this militates against any interpretation which would require construing "room" as if it carried the specific meaning attributed to a "habitable room" under the Building Regulations 1997. A "habitable room" is defined under those regulations as meaning a room used for living or sleeping purposes but does not include a kitchen having a floor area of less than 6.5 m2. Similarly, it is submitted that the interpretation of "room" cannot be informed by the definition of "habitable room" under the Housing (Standards for Rented Houses) Regulations 2019 (S.I. No. 137 of 2019).
28. This approach has been reaffirmed as follows in Maher v. Dublin City Council [2024] IESC 14 (per Murray J. at paragraph 9):
"However, the meaning of otherwise clear words is moulded by their general setting. In any situation involving the interpretation of statutory language the immediate touchstone is the legislation in which the relevant provision appears. But in this case – as will often be the position – the more general legal situation in which the relevant provisions are intended to function is relevant [...]".
29. More recently again, Murray J. suggested, in Donegal County Council v. Quinn [2025] IESC 19 (at paragraph 3), that if the first and universal rule of statutory construction is directed to what the words used in the provision mean, the question of why they were intended to bear any asserted meaning will often be a close runner-up.
30. Applying these principles to the interpretation of the RTA 2004, the term "room" must be read having regard to the object of the legislation and the legislative significance attributed to there having been a permanent increase in the number of "rooms" in the dwelling. The term "room" appears in that part of the RTA 2004 which regulates the setting of the rent under a tenancy. The overarching principle is that the rent set for a tenancy must not be greater than the amount of the market rent. This is subject to a further rule which provides that, normally, a rent review may not occur more frequently than once in each period of twelve months. Where, as in the present case, the dwelling is located in a rent pressure zone, the rent may only be increased incrementally by reference to an annual cap. The annual cap is expressed as a percentage of the previous year's rent: the new rent cannot exceed the old rent by more than two per cent. This is subject to a possible adjustment by reference to the All-Items Harmonised Index of Consumer Prices ("HICP").
31. In certain circumstances, a tenancy will be exempt from both of the foregoing rules, i.e. a rent review may occur earlier than the expiration of twelve months since the previous review and the annual cap will not apply to that review. The present appeal is concerned with one such exemption, namely that provided for under section 19(5)(b). This exemption is available where the following criteria are satisfied:
In the period since the rent was last set under a tenancy for the dwelling—
(i) a substantial change in the nature of the accommodation provided under the tenancy occurs, and
(ii) the rent under the tenancy, were it to be set immediately after that change, would, by virtue of that change, be greater than the market rent for the tenancy at the time the rent was last set under a tenancy for the dwelling.
32. The concept of a "substantial change in the nature of the accommodation provided" is elaborated upon under section 19(5A). A permanent extension to the dwelling that increases the floor area of same by an amount equal to not less than 25 per cent or an increase in the BER rating of seven ratings will constitute a "substantial change".
33. Short of these dramatic changes, a "substantial change" will also be regarded as having occurred where the works carried out to the dwelling concerned result in any 3 or more of the following:
(I) the internal layout of the dwelling being permanently altered;
(II) the dwelling being adapted to provide for access and use by a person with a disability, within the meaning of the Disability Act 2005;
(III) a permanent increase in the number of rooms in the dwelling;
(IV) in the case of a dwelling to which the European Union (Energy Performance of Buildings) Regulations 2012 (S.I. No. 243 of 2012) apply and that has a BER of D1 or lower, the BER (within the meaning of those Regulations) being improved by not less than 3 building energy ratings; or
(V) in the case of a dwelling to which the European Union (Energy Performance of Buildings) Regulations 2012 (S.I. No. 243 of 2012) apply and that has a BER of C3 or higher, the BER (within the meaning of those Regulations) being improved by not less than 2 building energy ratings.
34. The exemption is subject to the proviso that the works do not solely consist of works carried out for the purposes of ensuring that the structure of the dwelling complies with the Housing (Standards for Rented Houses) Regulations 2019 (prescribed under section 18 of the Housing (Miscellaneous Provisions) Act 1992). (See section 12(1)(b) and section 19(5A)(b)). Put shortly, a landlord cannot rely upon works, which are necessary to remedy his own default in complying with the prescribed standards for rented accommodation, for the purpose of availing of an exemption from the rent restriction rules.
35. The scheme of the legislation, therefore, is that the general objective of ensuring rent stability in a rent pressure zone is subject to an exemption where there has been a substantial change to the nature of the accommodation provided. The substantial change may be in the physical extent of the accommodation or in its energy efficiency. The legislative intent is that a tenant, who has benefited from a substantial change in the nature of their accommodation, should be required to pay market rent. Such a tenant cannot avail of the temporal restriction on rent reviews nor on the cap which normally pertains in a rent pressure zone.
36. The key term here is "accommodation". Where the landlord seeks to rely on an exemption from rent restrictions by reason of a permanent increase in the number of rooms in the dwelling, then the additional room or rooms must form part of the "accommodation". The term "accommodation" is ordinarily understood as referring to an area available for living or sleeping purposes. It would not ordinarily be understood as describing mere storage space.
37. Not only would an interpretation which captured storage space run counter to the ordinary meaning of the word "accommodation" and, indeed, "room", it would fail to reflect the legislative intent. The objective of the exemption under section 19(5) is to ensure that an increase in the accommodation, which benefits the tenant, be reflected in an entitlement on the part of the landlord to actuate an immediate rent review. An increase in the accommodation may occur as the result of the construction of an extension (with an increased floor area of not less than 25 per cent) or by the conversion of areas which were not previously available as accommodation. An obvious example of the type of conversion in contemplation would be where an attic area or garage, previously used as a storage space, is converted to use for living or sleeping purposes.
38. On the RTB's interpretation of the legislation, neither contingency would entail the creation of a new "room" if there is already a connecting door in existence between the attic area/garage and the rest of the house. This is because, on the RTB's theory of the case, a self-contained area with a ceiling, walls, floor, and a door constitutes a "room" irrespective of its current use or its compliance with legislative requirements. On this theory, an attic area connected to the house by a stairs and door would have to be regarded as an existing "room" even if, in its current configuration, it cannot lawfully be used for living or sleeping purposes because it does not comply with the statutorily prescribed standards for ventilation and fire safety. Yet on the same theory, the creation of even the smallest storage space under the stairs of the house, i.e. by the removal of a side panel and the replacement of same by a door, would constitute a new additional room.
39. The second issue which arises on the appeal to the High Court is whether, in order to avail of the exemption from the rent restriction rules, the area must be capable of being lawfully used for living or sleeping purposes, i.e. in the sense of being compliant with applicable legislation (including, in particular, the building regulations and the statutorily prescribed standards for rented accommodation).
40. The approach taken by the Tenancy Tribunal—and stood over by the RTB on this appeal—had been to say that the building regulations are of "no relevance" to the question of whether or not the works resulted in a permanent increase in the number of rooms in the dwelling. The logical terminus of this approach, reductio ad absurdum, is that a landlord could rely on the provision of substandard additional accommodation in order to avail of an exemption from the normal rent restriction rules. This would fail to reflect the plain intention of the legislature. It is apparent from the proviso under section 19(5A)(b) of the RTA 2004 that the Oireachtas was cognisant of the legal requirement imposed upon landlords under related legislation to meet minimum housing standards. The Oireachtas has stipulated that works taken to comply with those standards cannot be relied upon for the purpose of availing of the exemption from the normal rent restriction rules. It would be anomalous if a landlord could rely on additional accommodation, which is non-compliant, to avail of the exemption, whereas a landlord who carries out works necessary to bring existing accommodation into compliance cannot.
41. It is apparent from the overall structure of section 12 and section 19 of the RTA 2004 that a landlord is expected to comply with any prescribed standards in relation to residential lettings. It would undermine this legislative purpose to reward a non-compliant landlord with a significant benefit in terms of rent review.
42. In conclusion, an interpretation of the terms "room" and "accommodation" which would embrace storage spaces or other areas, which cannot lawfully be used for living and sleeping purposes because they are non-compliant with regulations which are intended to ensure the health and safety of tenants, would fail to reflect the plain intention of the Oireachtas and would be absurd. It follows, by reference to section 5 of the Interpretation Act 2005, that the words should be construed in a manner that reflects the plain intention of the Oireachtas as ascertained from the RTA 2004 as a whole. One of the principal objectives of the Act is to provide for rent stability, especially in designated rent pressure zones. The objective of the exemption under section 19(5) is to ensure that an increase in the accommodation, which benefits the tenant, be reflected in an entitlement on the part of the landlord to seek an immediate rent review. The exemption applies not only in circumstances where a dwelling has been physically extended but also applies in circumstances where previously unavailable areas within the dwelling, e.g. an attic or a garage, have been converted and are now available for lawful residential use.
43. The term "room" in this context means a partitioned area which is available to be used lawfully for living or sleeping purposes in compliance with building regulations and the statutorily prescribed standards for rented accommodation. By virtue of the proviso under section 19(5A)(b), the carrying out of works to bring a partitioned area, which had previously been in use as a bedroom in breach of ventilation and fire safety requirements, into compliance cannot be reckoned as resulting in an "increase" in the number of rooms.
45. The starting point for the analysis is to identify what the Landlord needed to establish in order to succeed in his appeal to the Tenancy Tribunal. The gravamen of the Landlord's appeal had been that, by dint of the works carried out, an area which was previously unavailable to be used lawfully for living or sleeping purposes has been converted to that use. To succeed in this argument, the Landlord needed to persuade the Tenancy Tribunal that the assessment of whether or not "a permanent increase in the number of rooms" had occurred entails more than a mathematical exercise, i.e. counting up the number of partitioned areas in existence subsequent to the completion of the works and comparing that with the number beforehand. The Landlord next needed to adduce evidence before the Tenancy Tribunal which established that the relevant bedroom had been unavailable to be used lawfully for living or sleeping purposes. Finally, the Landlord needed to establish that the works were not subject to the proviso under section 19(5A)(b), i.e. the works did not solely consist of works carried out for the purposes of ensuring that the structure of the dwelling complies with the Housing (Standards for Rented Houses) Regulations 2019 (prescribed under section 18 of the Housing (Miscellaneous Provisions) Act 1992). No landlord can rely upon works, which are necessary to remedy his own default in complying with the prescribed standards for rented accommodation, for the purpose of availing of an exemption from the rent restriction rules.
46. The Tenancy Tribunal erred in its approach to the first of the points above, namely the proper interpretation of the statutory test for the assessment of whether or not "a permanent increase in the number of rooms" had occurred. This error is precisely the type of error of law which is amenable to an appeal on a point of law only. See, for example, Lima v. Residential Tenancies Board [2025] IEHC 29 (at paragraph 33).
47. The Tenancy Tribunal found, mistakenly, that the Building Regulations were of "no relevance" to the question of whether or not the works resulted in a permanent increase in the number of rooms. In consequence of this error, the Tenancy Tribunal failed to interrogate and to reach findings on the question of whether the relevant bedroom complied with the Building Regulations or the Housing (Standards for Rented Houses) Regulations 2019.
48. It is not open to this court, in the context of an appeal on a point of law, to usurp the fact-finding function of the Tenancy Tribunal. The most that this court can do is to consider whether there was evidence before the Tenancy Tribunal which was capable of supporting a lawful finding that the relevant bedroom had not been available for living and sleeping purposes by reason of non-compliance with the Building Regulations. This court is considering the evidence for the narrow purpose of identifying whether such a finding is one which could have been reached by a reasonable decision-maker.
49. The only supposed "evidence" on the issue of compliance with the Building Regulations which had been before the Tenancy Tribunal comprised a two page report by Patrick Joyce Associates, Consulting Engineers ("the engineer's report"). The author of the engineer's report did not give oral evidence before the Tenancy Tribunal and it must be doubtful, therefore, whether the report was properly admissible at all. Even assuming, for the purpose of argument, that an unproved document is admissible, the engineer's report cannot ground a finding that there had been a breach of the Building Regulations for the following reasons. It is apparent from the engineer's report that the author had not actually inspected the dwelling himself. The engineer's report signally fails to identify the specific provisions of the Building Regulations which had supposedly been breached. Indeed, as appears from the first named Tenant's evidence to the Tenancy Tribunal, the report may have been prepared, erroneously, by reference to a technical guidance document in respect of fire safety which applies to buildings other than dwelling houses. The first named Tenant has exhibited, as part of her affidavit, an extract from a building regulation technical guidance document which suggests that, in the case of dwelling houses of a limited height, windows may legitimately be relied upon, for fire safety compliance, as providing an alternative means of escape.
50. In summary, there was no evidence before the Tenancy Tribunal to support a lawful finding that the relevant bedroom had been in breach of the Building Regulations. No reasonable decision-maker could lawfully have reached such a finding based on the engineer's report. It follows, therefore, that even if the Tenancy Tribunal had properly interpreted the exemption under section 19(5) and (5A) of the RTA 2004, it could not have found, on the evidence before it, that the Landlord was entitled to avail of an exemption. Accordingly, no useful purpose would be served in remitting the matter to the Tenancy Tribunal in circumstances where the outcome would be the same, i.e. the rent review notice would have to be found to be invalid because the exemption has not been established.
52. The Tenancy Tribunal erred in law in its interpretation of the relevant provisions of the Residential Tenancies Act 2004. In particular, the Tenancy Tribunal misinterpreted the conditions attaching to the availability of the exemption from the rent restrictions otherwise applicable in a rent pressure zone. The proper interpretation has been explained at paragraphs 42 to 43 above.
53. Even if the Tenancy Tribunal had properly interpreted the exemption under section 19(5) and (5A) of the RTA 2004, however, it could not have found, on the evidence before it, that the Landlord was entitled to avail of an exemption. Accordingly, no useful purpose would be served in remitting the matter to the Tenancy Tribunal in circumstances where the outcome would be the same, i.e. the notice of rent review would have to be found to be invalid because the exemption has not been established. See paragraphs 44 to 51 above.
54. As to legal costs, the position is as follows. The Landlord, as appellant, has failed in his appeal to the High Court. It cannot, however, be said that the Residential Tenancies Board has been "entirely successful" in resisting the appeal within the meaning of section 169 of the Legal Services Regulation Act 2015. This is because the RTB lost on a significant issue of principle, namely, the proper interpretation of the conditions attaching, pursuant to section 19(5) and 19(5A) of the RTA 2004, to the availability of the exemption from the rent restrictions otherwise applicable in a rent pressure zone. This court's provisional view is that the partial nature of the RTB's success should be reflected in the incidence of legal costs. More specifically, it is proposed to allow the RTB to recover, as against the Landlord, one-third of its costs only. As to the Tenants, their opposition to the appeal has been largely vindicated and they provided useful submissions on the layout of the dwelling. It is proposed that they should recover, as litigants in person, their reasonable expenses and outlay as against the RTB. It is proposed to measure these at €900.
55. If any party wishes to contend for a costs order other than that proposed, they should contact the High Court registrar on or before 5 June 2025 and request that the matter be listed for oral submissions on costs.
Appearances
Noel McGrath for the appellant instructed by Capital Law Partners LLP
Mark William Murphy for the respondent instructed by Byrne Wallace Shields LLP
The notice parties appeared as litigants in person