Neutral Citation: [2016] IEHC 371
THE HIGH COURT
[2014 No. 331 JR]
BETWEEN
JOHN BRADY AND GAYLE BRADY
APPLICANTS
AND
WICKLOW COUNTY COUNCIL
RESPONDENT
JUDGMENT of Mr Justice Max Barrett delivered on 30th June, 2016.
Part 1
Background
1. Mr and Mrs Brady are joint tenants of a council house in Bray. They live there with their five children. In 2004, at a time when Mrs Brady was expecting her fourth child, the couple decided to do an attic conversion to accommodate their growing family. As it happens, their house was pre-designed to facilitate such a conversion and many of their neighbours have done such conversions. The Bradys have never been flush with money. So Mrs Brady visited the Bray Town Council offices back in 2004 and asked if the Council would finance the extension. She was told that the Council would not but, as she avers in her affidavit evidence, it was indicated that “we could carry out the conversion from our own finances”. (Bray Town Council has since been supplanted by Wicklow County Council which is, in consequence, the respondent in these proceedings).
2. Convinced from Mrs Brady’s interactions with the Town Council that they had the ‘green light’ to proceed, the Bradys saved some money and borrowed from the local credit union to finance their attic conversion. Mr Brady, a carpenter by trade, did a lot of the work, aided by a couple of friends, one an electrician and one a gentleman who specialises in installing stairs. By end-2004, the work was done, the new baby had arrived safely, and the Bradys got on with their lives.
3. The court is satisfied that on the balance of probabilities, Mrs Brady’s account of her visit to the Council offices in 2004 is true. There are at least five reasons why this is so:
- first, when giving oral evidence at the within proceedings Mrs Brady impressed the court as a transparently truthful individual.
- second, it does not seem likely to the court that a couple who were generally strapped for cash would expend such savings as they had and get a home improvement loan from the credit union unless they were satisfied that they had permission to do as they did.
- third, as to the absence of a written approval letter, Mrs Brady’s response in the witness-box struck the court as that of an honest person: if she knew then what she knows now, she would have got some form of written approval but she never imagined that matters would end up as they have.
- fourth, if the court might borrow a colloquialism, the Council has sought to ‘make hay’ in these proceedings from the fact that it has no written record of what Mrs Brady alleges to have transpired in 2004. However, it seems to the court that the Council is not an unfailing model of record-keeping. It has no paper record of its apparent policy of doing occasional council house inspections, and it has no copy of the list of houses that featured the Bradys’ house as the one chosen for the inspection that culminated in these proceedings. Yet it seeks to present the absence of a written approval for the Bradys’ home conversion as a problem arising. In truth, the absence of a written approval seems to the court to be but consistent with an occasional slackness in paper-keeping on the part of the Council, itself not the greatest wrong in the world, but an occasional fault presenting nonetheless.
- fifth, notably the Bradys’ tenancy agreement of 18th December, 2000, does not require that such consent as was obtained be in writing, providing simply (at clause 13) that:
“The Tenant shall not execute any additions, alterations, improvements or other works, in or in relation to, the dwelling or erect any shed, garage, out-office or other building, without the consent of the Council.”
4. Having consented to the attic extension, the entirety of the Council’s case would seem to fall at this very first hurdle. One cannot approve of a particular course of action and then disapprove when the approved course of action is taken. To borrow from the judgment of Henchy J. in the long-ago case of Corrigan v. The Irish Land Commission [1977] I.R. 317, 326, a case in which the applicants appeared before a tribunal whose jurisdiction they later challenged when it gave a decision adverse to them,“That is something the law will not and should not allow. The complainant [or, in the present case, the Council] cannot blow hot and cold; he [it] cannot approbate and then reprobate; he [it] cannot have it both ways”.
5. Leaving that aspect of matters aside, and proceeding with the chronology of events, in July 2013,some eight and a half years after the attic conversion was completed, Mrs Brady, a full-time homemaker, was doing her chores about the house when a visitor called. It was the Council’s then Clerk of Works. He had come to do an impromptu inspection. Mrs Brady indicated that it was not a convenient time for the inspection and asked if the Clerk could return later in the morning. In fact, he returned the following day. When he called, Mrs Brady took the precaution of recording the visit on her mobile phone.
6. It is not, of course, every day that one records ostensibly private conversations. So why did Mrs Brady do as she did? Most likely because she and her husband were mistrustful of the Council. Mr Brady had by this time been elected a Sinn Féin member of the Council; more recently he has been elected to Dáil Éireann. In his capacity as a councillor, Mr Brady, in the years prior to 2013,had been vocal in his criticism of the Council’s reaction to the tragic deaths of two Bray firemen, he had staged something of a ‘sit-in’ at the Council premises in support of two women seeking Council re-housing, and he was also a prominent critic of the Council’s management of drug abuse issues and anti-social behaviour that Mr Brady and others perceived to present on Council-owned estates. On a personal level, Mr Brady was also embroiled in an ongoing spat with the Council over its (unusual) decision to deduct a portion of Mr Brady’s expenses qua councillor in order to cover the cost of additional security arising from the ‘sit-in’ at the Council’s premises. So the Bradys considered themselves to have good reason to believe that Mr Brady was not viewed with unalloyed affection by Council staff.
7. It is only fair to note, before proceeding further, that various Council staff gave evidence during the hearings that they had no grudge against Mr Brady as regards his actions as a councillor. The court believes this evidence. Doubtless the Council staff did not welcome Mr Brady’s every criticism - who would? - but all of the Council staff unfailingly impressed the court as right-thinking, professional people who freely acknowledge Mr Brady’s right, past and present, to represent his constituents as he saw and sees best. However, this does not mean that the processes that the Council followed as regards Mr and Mrs Brady, and which led eventually to the notice to quit which has brought about the within proceedings, are adequate from, inter alia, an administrative law perspective. In point of fact, the court finds that they are not.
8. The inspection of Mrs Brady’s house in July 2013 took about four minutes in total. It consisted mostly of a mutual exchange of the somewhat forced pleasantries that one would expect in such a context. The Clerk went up the stairs, noted that there was an attic extension, came back down the stairs, said goodbye and left. The court must admit that after several days of hearings it still does not comprehend how, on the basis of so cursory an ‘inspection’, the Council considered itself to be in a position to issue a remarkably comprehensive letter of 31st July, 2013, that stated, inter alia:
“I refer to the [four-minute] inspection of the above property by the Clerk of Works and his subsequent report that the attic space has been converted into a bedroom.
As there does not appear to be fire doors…and as the roof light window is higher than normally required for rescue purposes, we are concerned that the attic poses a fire risk to those occupying this floor, and accordingly the use of this space as a bedroom should cease immediately, the stairway to be removed and the ceiling and attic space be restored to its original condition. You must also be aware that the permission of the housing authority is required for any alterations to their houses, and as you will now be aware, for very good reasons.
You may, if you wish, apply for retrospective permission for retention of works which are in line, amongst other things, with the fire safety section of the Technical Guidance Documents in the Building Regulations. Such an application for retention of works must be accompanied by a fire professional’s recommendations to ensure compliance with the fire safety section of the Building Regulations. Any fire professional you engage should have professional indemnity insurance of a minimum of €6.5m.
It is essential that you close off the use of this third storey immediately, and you should confirm this by return post, which should also clarify whether you intend to retain this space or restore it to its previous condition….”
9. There are a number of points of note about this letter:
- first, the substantive concerns raised are twofold: (1) absence of fire-doors; and (2) an inadequate escape route from the attic. As to (1), it appears from the evidence that in fact there were fire-doors in place. As it happens, the door to the attic has been updated in the period since July 2013 and a ‘closer’ (the hand that makes a door shut automatically) re-screwed onto the first-floor door (the original ‘closer’ was removed because little fingers had been getting caught in the self-closing door). Thus, Mrs Brady avers as follows in her affidavit evidence:
“[T]he Council are operating under a…misapprehension in that they allege that substantial works were done prior to applying for leave to bring these proceedings and same was done without notice to them. This is not the case….[T]he only door we upgraded was the one door into the attic room. We did not install new doors on the first floor. The only work we did to the first floor doors was to refit the existing doors with self-closing door sets. These doors were installed in 2004. These doors had self-closers until about 2008 when, because our children were catching their fingers in the doors we removed the self-closers. In May 2014, we purchased new self-closers and refitted them and again the children are occasionally catching their fingers. In this regard the assumption…that the doors themselves are new is entirely mistaken. The averment by [the Clerk of Works, Mr Franey, whose evidence is considered below]…that the doors on the first floor were replaced after his visit is simply not true”.
In her oral testimony, Mrs Brady struck the court as a straightforward and honest person who wanted to tell the truth, even to the point of admitting things against herself, so, for example, that with the benefit of hindsight, it would have been better to get a written approval back in 2004, or that she might have more firmly asserted her position in the letters she sent to the Council so that they would read better in the High Court. Her transparent honesty leads the court to prefer the last-quoted text to the contrary suggestions by the Council, not least because the lightning speed of the initial inspection appears to the court necessarily to carry with it a consequently heightened risk of inaccuracy and error.
As to (2), the Council’s own expert, Mr Lyons, in his affidavit evidence has indicated that the escape route (via a window which had not been installed by the Bradys) is adequate.
- second, the letter offers no option to challenge the Council’s views; it is couched in ‘you’ve been caught, now do as directed’ terminology. There is no acknowledgement of the fact that the Bradys as tenants have improved their property, changing it from a three-bedroom house to a four-bedroom house. There is no indication that the Council has addressed its mind to issues of proportionality.
- third, although the letter appears on its face to be reasonable in allowing the Bradys to apply for retention permission, in fact this reasonableness is more apparent than real. Leaving aside for a moment the fact that the concerns manifested by the Council in its letter of 31st July, were unfounded (there were fire doors and the window escape route was adequate),it has emerged in evidence that the remarkable €6.5m professional indemnity requirement contained in the letter is a level of indemnity that is typically recommended by the Department of the Environment for consultants engaged on construction projects with an estimated construction cost of over €60m. And, as Mr Brady discovered on making enquiry of various such consultants, they cost a lot of money to engage. To offera form of relief that is theoretically available but practically unobtainable is to make no good offer of relief.
10. The letter of 31st July, 2014, kick-started the chain of correspondence and events summarised by the court below:
4th September, 2013. Letter from Mrs Brady to Council. Indicates that Bradys have engaged a consulting engineer and are reserving position as regards retention. Indicates attic conversion was done nine years previously to highest standards following approach to Council for funding.
[It was put to Mrs Brady during the hearings that if she had believed herself to have received the requisite permission in 2004, she would have stated this more clearly from the very outset and not proceeded down the path of ‘will I, won’t I get retention permission?’ Mrs Brady indicated that if she had thought matters would have ended up in the High Court, she might have asserted her rights more vigorously, but she never thought that matters would end so. Instead, consistent with the generally vulnerable position of tenants vis-à-vis their landlords, Mrs Brady just wanted to placate the Council, and do whatever was reasonably required of her, anything really to avoid getting into a protracted row. As mentioned, the court considers Mrs Brady to have been a transparently truthful witness in the evidence she gave and fully accepts her explanation in this regard which has the ring of truth about it in any event.]
6th September, 2013. Meeting between Clerk of Works and Bradys’ consulting engineer at the Bradys’ home.
11th October, 2013. Letter from Council to Bradys. Refers to position regarding retention being outstanding and seeks further confirmation that attic not being used for sleeping purposes.
30th October, 2013. Letter from Mrs Brady to Council. Indicates that Bradys are awaiting final report of consulting engineer and that they will be seeking retention permission.
28th November, 2013. Letter from Council to Bradys. Requests further confirmation that Bradys will be seeking retention permission. Reiterates €6.5m indemnity insurance requirement as regards any fire professional engaged. Requires that attic be closed off and stairs removed.
[The court has already noted the unreality to the €6.5m requirement. Moreover, the court cannot but note in passing that it does seem illogical that during the apparent prelude to the seeking of retention permission, a council tenant of limited means would be required immediately to remove the entire stairs that will fall to be covered by any retention permission. How can one apply to retain a stairs that one has been required to remove, assuming one removes it? Moreover, an issue of reasonableness and proportionality clearly presents in requiring that an attic be closed off and a stairs removed when what is in issue is the insertion of a couple of fire-doors (that in fact were already there, albeit minus their closers) and the enlargement of the ope of a Velux window (which in fact was large enough). The court cannot but agree withMrs Brady’s observation in her affidavit evidence that “[The Council] adopted the stance that [it]…would consider an application to convert once the existing conversion was stripped out, irrespective of the cost…or the necessity of same and despite the fact that the house had been originally built to accommodate such an extension.”]
3rd December, 2013. Letter from Mrs Brady to Council. Reiterates that Bradys will be seeking retention and seeks guidance as to applicable process. Queries requirement for removal of stairs, indicating that Bradys had been separately advised that this was unnecessary. Indicates shortage of available funding at Christmas period. Queries if any financial assistance available.
9th January, 2014. Letter from Council to Bradys. Indicates that Bradys acknowledge past wrongdoing. Reiterates requirement as to removal of stairs and indicates notice to quit will issue unless pending inspection reveals attic closed up and stairs removed. Gives one-paragraph explanation of retention process.
[The court notes that the Bradys never considered themselves to have acknowledged any wrongdoing. As mentioned, Mrs Brady was satisfied to pursue down the path of seeking retention permission as an alternative to getting into a protracted row with her landlord and perhaps facing what she in any event came to face, namely the threat of eviction].
20th January, 2014. Letter from Mrs Brady to Council. Reiterates that Bradys will be seeking retention. Points out that if retention granted, the stairs that the Council is requiring be removed, will be put back again. Queries competence of Clerk of Works to assert breach of Building Regulations. Confirms no-one sleeping in converted attic. Reiterates query regarding financial assistance.
29th January, 2014. Letter from Council to Bradys. Declines financial assistance. Declines to answer question as to Clerk of Works’ competence, pointing to ability of professional engaged by Bradys to advise them on matters. Indicates that matter now ongoing for some time, resolution needed, and further inspection to be done on 6th February.
[The court notes the evasive response to the query as to the Clerk of Works’ competence, being in effect ‘Your advisor will tell you where you’ve gone wrong’].
12th March, 2014. Notice to Quit issues. The Bradys contend that this was disproportionate in all the circumstances arising.
22nd April, 2014. Solicitors for Bradys write initial letter to Council alleging unlawful eviction, unlawful deduction of Mr Brady’s councillor expenses, unlawful interference with Mr Brady’s right to represent his constituents, and public misfeasance by Council, its servants or agents.
23rd April, 2014. Solicitors for Bradys write to Council noting that Council agent called at Bradys’ home on that day and sought return of keys (which request was declined). They indicate their view that Council is acting in breach of European Convention on Human Rights.
21st May, 2014. Solicitors for Bradys write to Council indicating that “[h]aving reviewed matters” no breach of Building Regulations arises and seeking withdrawal of notice to quit.
30th May, 2014. Solicitors for Bradys write to Council requesting withdrawal of notice to quit and indicating intention to seek judicial review if notice not withdrawn.
6th June, 2014. The within proceedings commence.
11. The court would but note in passing that the sequence of events described above shows a complete engagement at all times by the Bradys, especially Mrs Brady (who indicated herself in her oral testimony to have been acting at all times in tandem with her husband) to engage with the Council to seek a fair and proper resolution of matters, no more.
12. Also worth noting, perhaps, is that following the issuance of the notice to quit, a number of media outlets ran with the story of the Bradys’ pending eviction, noting Mr Brady’s contention that he was, to borrow a colloquialism, being ‘set upon’ by the Council because he had championed causes and undertaken actions unpopular with Council officials.
Part 2
Evidence of Council Staff
A. Overview.
13. A number of Council officials provided affidavit evidence and were also called to the witness-stand during the hearing of the within application. All of these witnesses struck the court as being entirely truthful. Their evidence is briefly summarised hereafter. All of the Council staff denied the allegations of bad faith and misfeasance made against them by the Bradys.
B. Mr Anthony Franey.
14. Mr Anthony Franey, Clerk of Works with Wicklow County Council, indicated that in July 2013 he was given a list of properties to inspect and that these properties included the Bradys’ house. This list has never been discovered but it seems in truth the type of documentation that would be typed or written up and then throw away. Certainly the court sees nothing in the fact that it ceases to exist, save to suggest a certain occasional casualness (itself not the worst of failings) on the part of the Council as regards formalised record-keeping. Notably, Mr Franey asserts that:
“[T]he Applicants have now done works to the attic conversion to bring it into line with the fire safety requirements of the Building Regulations. I say and believe that if the Applicants had come to the Council with the proposals to carry out the works which have been done to the property, the Council was likely to have agreed them and considerable progress could have been made in order to resolve matters.”
15. Whether matters could ever have been resolved in the absence of court action, given the allegations of bad faith and misfeasance made by the Bradys, is perhaps doubtful. And in any event, Mr and Mrs Brady deny that any additional works have been done and that what Mr Franey now asserts was done was simply missed by him in the past. Mrs Brady’s averments in this regard are quoted elsewhere above and, as indicated and for the reasons stated, are accepted by the court as true. That does not mean that Mr Franey has told any untruths, merely that his honest perception of the truth, when one has regard to Mrs Brady’s to-be-preferred averments, appears to the court to be mistaken.
C. Ms Christine Flood.
16. Ms Christine Flood, a Senior Executive Officer with Wicklow County Council indicated there was a longstanding Council practice of doing spot-inspections on Council-owned residences. Otherwise her evidence largely comprised of explaining that the Council behaved as it did in pursuit of the lawful objective of ensuring that Council-owned properties comply, inter alia, with fire regulations. It does not appear that there is any written policy pursuant to which such spot-checks are done; it appears that they aresimply done out of general prudence.
D. Mr Des O’Brien.
17. Mr Des O’Brien is the Director of Services with Wicklow County Council. It was he who authorised the issuance of the notice to quit in March, 2014. In his evidence, he indicated, in essence, that this was because he considered that matters had not really progressed since July 2013 and there had to come a point when the Council had to act, given the deficiencies in the Bradys’ attic conversion that the Council (mistakenly) perceived to arise. Mr O’Brien too indicated that he believes that following on the first inspection the Bradys did in fact do substantial works on their house. In this regard, the court prefers the contrary evidence of Mrs Brady for the reasons stated above. (As with Mr Franey, this does not mean that Mr O’Brien has told any untruths, merely that his honest perception of the truth, when one has regard to Mrs Brady’s to-be-preferred averments, appears to the court to be erroneous). Notably, Mr O’Brien avers that “If such information[as to the alleged works] had been brought to the Council’s attention, it might well have led the Council to reconsider its position and/or withdraw the Notice to Quit.” These alleged works were in fact known by the Council to present from at least July, 2014. But whether matters could ever truly have resolved in the absence of court action, given the allegations of bad faith and misfeasance levelled by the Bradys at the Council and Council staff, is perhaps doubtful.
Part 3
Evidence of Others
A. Ms Liz Doyle.
18. Ms Doyle is a tenant of a Council-owned property similar to that rented by the Bradys. In her affidavit evidence, she indicates that she got written permission to put in her attic extension in January 2010. She avers that she was never asked to produce confirmations of the type being sought of the Bradys, that at no stage were she or her contractors asked to provide professional indemnity insurance of €6.5m. “The only requirement made by the Council was that Mr Franey told me that a velux window should be installed that was big enough for a ‘fully grown man’ to get in and out of.” Her evidence is notable in that it suggests most strongly that there is discordance between how the Council has approached its dealings with the Bradys and its dealings with at least one other tenant similarly placed. In particular, it is clear from Ms Doyle’s evidence and the experience of the Bradys that, historically, the Council has not had a prescribed form or a fixed set of criteria with which its tenants have to comply when seeking consent to attic conversions.
B. Mr Michael Lyons.
19. Mr Lyons is a fire safety consultant. He was engaged by the Council to conduct a fire safety survey of the Bradys’ residence, following which he provided a helpful affidavit, supplemented by oral testimony. It will be recalled that the Council’s letter of 31st July, 2014, was concerned with the absence of fire-doors, and the adequacy of the escape route from the attic. As to this last point, Mr Lyons indicates in his affidavit evidence that “The attic room is provided with a rescue/escape window of 850mm by 500mm and this window meets the current requirements.” In other words, there is not and never has been, in truth, an issue arising in this regard. As to the absence of fire-doors, the doors in place were in fact fire-doors. Their sole deficiency appears to have been the absence of door-closers, which have since been screwed back up again, and apparently continue to present a hazard for little fingers. Mr Lyons does make other observations about how fire safety at the Bradys’ house might be enhanced by reference to the building and fire standards that pertained at the time of his inspection (as opposed to what, for the purposes of these proceedings, are the more pertinent and since much-amended Building Control Act 1990 and Building Regulations 1997 that were extant and applicable in 2004). Moreover,Mr Lyons’ evidence neither endorses the alleged omissions upon which the decision to make the notice to quit was made, nor supports the conclusion that relief in these proceedings should be refused because of any deficiencies attributable to the Bradys. And Mr Lyons’ evidence must in any event be construed in light of the indications from Mr Franey and Mr O’Brien that the present practical reality is that not a lot separates the Council and the Bradys any longer as regards what needs to be done to the Bradys’ residence. In truth, were it not for the allegations of bad faith and misfeasance raised by the Bradys, it might have been that matters might hitherto have been resolved between the parties, though here the court enters the realm of speculation.
Part 4
Reliefs Sought
20. Mr and Mrs Brady come to court at this time seeking the following reliefs:
(1) an order of certiorari quashing the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit on them;
(2) a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of its being irrational, unreasonable and disproportionate;
(3) a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of its being made in bad faith;
(4) a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of it not being made bona fides for any purpose associated with the discharge of the duties and functions as a housing authority pursuant to the Housing Act 1966, as amended;
(5) a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of the decision being in breach of the Bradys’ rights pursuant to Article 40.5 of the Constitution;
(6) a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of it being in breach of the Bradys’ rights pursuant to Article 8 of the European Convention on Human Rights, as incorporated into Irish law by the European Convention on Human Rights Act 2003;
(7) a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and unlawful by reason of its being in breach of the Council’s duties pursuant to s.3 of the European Convention on Human Rights Act 2003;
(8) a declaration that the refusal of the Council to revoke the notice to quit being unlawful by reason of that refusal being irrational, unreasonable, disproportionate, made in bad faith, contrary to the proper discharge of its functions under the Housing Act 1966, is in breach of the Bradys’ constitutional rights and their rights pursuant to the European Convention on Human Rights Act and in breach of the Council’s duties under s.3 of the European Convention on Human Rights Act 2003;
(9) a declaration that the expressed intention of the Council to seek to recover possession of the Bradys’ home by way of application for a summons under s.62 of the Housing Act 1966, is unlawful and ultra vires having regard to Article 8 of the European Convention on Human Rights and the declaration of incompatibility previously made by the Supreme Court;
(10) damages, including aggravated damages, for misfeasance in public office, breach of constitutional rights and/or pursuant to s.3(2) of the European Convention on Human Rights Act, 2003; and
(11) certain ancillary reliefs.
21. Listed so, this seems a lot of reliefs to come seeking. However, the various reliefs can helpfully be grouped into four categories: (i) relief on grounds of irrationality, unreasonableness and disproportionality; (ii) bad faith (misfeasance) on the part of the Council; (iii) breach of the Bradys’ constitutional rights and/or their rights under the European Convention on Human Rights; and (iv) damages arising from (ii) and/or (iii). The court proceeds below to consider each of these categories; however, it would note again the general point made previously above, that having consented to the attic conversion in 2004 it is not open to the Council reasonably to act as it has at this time.
Part 5
Irrationality, Unreasonableness, Proportionality
A. Applicable legal principles.
22. In Bailey v. Flood (Unreported, High Court, Morris P., 6th March, 2000), Morris P. held that “The function of the High Court on an application for judicial review is limited to determining whether or not the impugned decision was legal, not whether or not it was correct. The freedom to exercise a discretion necessarily entails the freedom to get it wrong; this does not make the decision unlawful.”
23. Continuing in a similar vein, in Carrigaline Community Television Broadcasting Co. Ltd. v. Minister for Transport, Energy and Communications (No. 2) [1997] I.L.R.M. 241, Keane J. held, at 284, that it is “clear…that this Court cannot set aside a decision of a competent authority merely because it disagrees with the view of that authority. It cannot, in short, act as a court of appeal from the decision where no such appellate jurisdiction has been conferred on it by law. Subject to that crucial limitation, however, the court can and must set aside a decision where it is shown to be unlawful…”.
24. The orthodox test as to reasonableness/rationality in the context of judicial review proceedings was identified by the Supreme Court in State (Keegan) v. Stardust Compensation Tribunal, in which Henchy J. put the threshold for impugning a decision at a high level, stating, at 658, “I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense”. Also in Keegan, Griffin J., in his judgment, referred, at 661, to Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155, 1173, in which Lord Brightman commented that “Judicial review is concerned not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power….Judicial review , as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”
25. The Supreme Court again posited a stringent threshold in O’Keeffe v. An Bord Pleanála[1993] 1 I.R. 39. This judgment created the ‘no evidence’ principle - which in effect means that, in order to determine irrationality, a court should establish that a decision-making authority had before it no relevant material which would support its decision. Finlay C.J. also stated as follows in O’Keeffe, at 71:
“It is clear from these quotations that the circumstances under which the court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare. It is of importance and , I would think, of assistance to consider not only as was done by Henchy J. in…Keegan…the circumstances under which the court can and should intervene, but also in brief terms and not necessarily comprehensively, to consider the circumstances under which the court cannot intervene.
The court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it.”
26. More recently, in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701, 817, Fennelly J. identified two fundamental principles that must be respected in the rules for the judicial review of administrative decisions. “The first is that the decision is that of the administrative body and not of the court. The second is that the system of judicial review requires that fundamental rights be respected.” But so far as this latter proposition is concerned Fennelly J., at 826, rejected the need for ‘sliding scale’ judicial review, with different standards applying depending on the type of right arising for protection, stating that “The single standard of review laid down in…Keegan…and O’Keeffe…is sufficiently responsive to the needs of any particular case.” This was because, as Fennelly J. explains at 827, even within the context of a single standard, the degree of justification demanded of an administrative body will be commensurate with the nature of the encroachment. Or, to put that in ‘Keegan-speak’, in considering whether a decision“plainly and unambiguously flies in the face of fundamental reason and common sense”, the worse the alleged encroachment on an applicant’s rights or interests, the greater the justification that a decision-maker will need to provide, if the court is not to find the requisite ‘flight in the face’ to arise.
27. Why have our courts traditionally contemplated a relatively limited role for themselves when it comes to judicial review applications? Probably because a less constrained approach, to borrow from Lord Brightman, would see our courts “under the guise of preventing the abuse of power, [become]…guilty of usurping power” - specifically the power of self-government that naturally vests in a sovereign people. In a society such as ours which has a true democratic assembly, an impartial judicial system, and a popular commitment to protecting individual rights (even if there is reasonable public dispute about the scope of some rights), there is no reason to believe that, in terms of outcome, rights are better protected by judges than by elected lawmakers - and, regardless of outcome, judicial review ever suffers from an inherent want of democratic legitimacy. The subtle foundation on which judicial review appears to enjoy best standing within republican government is that when the three branches of government are commonly engaged in the task of ensuring that certain basic standards such as rationality, reasonableness, proportionality, and ultimately lawfulness, present in governmental behaviours, it seems necessarily to follow that the courts should have the power to quash decisions that are preceded and tainted by a process that transgresses democratically sanctioned standards. But legality of process, not likeability of decisions, must be the courts’ constant focus in this regard. The public are satisfied for judges to do ‘lawyers’ work’ but not for judges to make value judgments. For as Justice Scalia famously observed in his dissenting judgment in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1001 (1992), “The people know that their value judgments are quite as good as those taught in any law school - maybe better”. Respectful caution, tempered bywatchful courage, is the constant pole-star of judicial action in the realm of judicial review.
28. Even proceeding with such warranted caution, however, the actions of the Council at issue in the within proceedings appear to the court to present with manifold deficiencies:
(1) the Council decision was based on a fundamental error as to the absence of the consent (granted in 2004).
(2) a fundamental error arose as regards the breaches of the Building Regulations perceived by the Council to arise. The attic room had a rescue/escape window that met applicable requirements and there was no legislative requirement that the fire-doors installed by the Bradys be upgraded.
(3) the Council’s actions from July, 2013, onwards also appear unreasonable in circumstances where Mrs Brady attended at the Council offices in 2004, informed the Council of the Bradys’ intention to convert the attic, and then proceeded as she had informed the Council.
(4) the Council’s insistence on being furnished with an expert report from a fire engineer with a minimum of €6.5m of professional indemnity insurance cover (a requirement that typically applied to enormously large construction projects) was unreasonable and disproportionate in the circumstances presenting.
(5) the Council’s insistence that the attic space and ceilings be returned to their original condition was unreasonable, perhaps even irrational, when the works necessary to meet the standards demanded by the Council did not require such works.
(6) the Council failed to have any (or any due) regard to the fact that the Bradys’ house had originally been constructed by or on behalf of the Council in a manner designed to facilitate the very attic conversion that was done.
(7) the Council’s actions following on an alleged breach of the Bradys’ tenancy failed to have any (or any due) regard to the fact that the conversion had occurred nine years previously.
(8) at no point does the Council appear ever to have acknowledged the fact that the Bradys had in fact improved their property, changing it from a three-bedroom house to a four-bedroom house. Throughout, its attitude was informed by a (mistaken) sense that the Bradys had been discovered in a breach of their tenancy agreement and fell to be treated accordingly. But even if such a breach had arisen, as counsel for the Bradys observed in his submissions, “There is a world of a difference between the conduct of tenants who trash a property and the conduct of tenants who improve a property” - and a consequent world of a difference in how they fall reasonably to be treated.
(9) even if one accepts that the Council’s concerns in its letter of 31st July, 2014 (as to the absence of fire-doors and the adequacy of the escape route from the attic) were correct, its then and subsequent requirements appear disproportionate when one recalls that all that was required was an upgrade to fire doors and an enlargement of the ope of a Velux window.
(10) in the particular circumstances presenting, the Council’s actions appear to the court to have involved a disproportionate attack on the Bradys’ entitlement to respect for their family home under Article 40.5 of the Constitution and Article 8 of the European Convention on Human Rights.
Part 6
Bad Faith and Misfeasance
A. Overview.
29. Mr and Mrs Brady contend that the process that preceded the Council’s decision to issue the notice to quit, and that decision itself were informed by bad faith and constituted misfeasance in public office. The Bradys clearly feel aggrieved by how they have been treated, and the court has already found that the process which preceded the issuance of the notice to quit was tainted by unreasonableness, disproportionality and, to a limited extent, perhaps even by some degree of irrationality. But feeling is no foundation for a finding of bad faith or misfeasance, and of such wrongdoing there is no evidence presenting.
B. Law.
30. In their definitive textbook, Administrative Law in Ireland (4th edition), Hogan and Morgan make the following observations as to a challenge on grounds of bad faith, at 745:
“Fraud (frequently known as mala fides or bad faith) exists where a public body intends to achieve an object other than that for which he believes the power to have been conferred. Thus, bad faith includes, but is wider than, the concept of ‘malice’, which should be used only where the repository of the discretionary power is motivated by personal animosity against a person or persons affected by it. In the other direction, bad faith may be distinguished from bias…in that bias may have an objective existence, without any element of consciousness similar to criminal law of mens rea; whereas the essence of bad faith is dishonesty.
…Straightaway, two features emerge: first, cases in which bad faith is established are inevitably rare. Courts naturally shrink from labelling elective representatives and/or public officials as dishonest. Moreover, public bodies are often made up of groups of people with differing levels of information about the subject matter and with varying outlooks, motivations and political allegiances. Against this background, it will often be difficult to bring home a charge of bad faith because of the need to prove something akin to the criminal law concept of mens rea. Secondly, if a court concludes that a discretionary decision is the product of the consideration of irrelevant factors, or is unreasonable, then it will be held invalid, even if there is no element of bad faith. Thus, it will usually be otiose to try to establish bad faith. One exception to this observation would occur in an action where a plaintiff is suing for the (as yet undeveloped) tort of misfeasance of public office since bad faith is a necessary element of this tort. Again, bad faith is regarded as particularly heinous so that the consequences of such a finding are more far-reaching than with other defects and this may tell in the applicant’s favour.”
31. The authors note that it is uncommon for bad faith to be alleged before a court, never mind established, though, of course, the untypical is not the impossible, and the Supreme Court made clear in Listowel U.D.C. v. McDonagh[1968] I.R. 312 that bad faith is “a well recognised ground of challenge”. In that case the Supreme Court considered the Local Government (Sanitary Services) Act 1948, by which a sanitary authority was authorised to “prohibit the erection of temporary dwellings if they are of the opinion that such an erection would be prejudicial to public health”. Purporting to act under this power, Listowel UDC made an order banning the construction of temporary dwellings on a number of named streets. The defendant was convicted and fined ten shillings for contravening this order. The principal line of defence was to argue that the order had not been made bona fide in that the sanitary authority did not genuinely hold the necessary opinion. In effect finding for the defendant, the Supreme Court held that he was free to adduce evidence before the Circuit Court (to which the case had gone on appeal) as to what transpired at the Council meeting that considered the passing of a bye-law, what views were expressed by members and officials of the Council, and the veracity of the opinion they expressed. In the result, the Circuit Court found as a matter of fact that the order had been made bona fide.
32. Biehler, in Judicial Review of Administrative Action: A Comparative Analysis (3rd edition) notes, at 87, the Australian judgment of NAKF v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] 199 ALR 412, 420, in which Gyles J. states that “[B]ad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence is”. Gyles J. then adds that a person cannot blunder into bad faith, no matter how stupid and careless he is, any more than a person can blunder into deceit or wilful blindness. Biehler proceeds to note that given the detrimental effect in terms of an undermining of public confidence in the administrative decision-making process that necessarily arises where a finding of bad faith is made, the courts will typically view any such allegations as particularly serious, noting too that “any spurious or ill-founded claims of bad faith will be looked upon with extreme disfavour in any review process…so it would not be advisable, and may even be counterproductive from the point of view of an applicant, to make allegations of this nature unless there is clear evidence to support them”. Biehler also makes reference to the decision of the full court of the Federal Court of Australia in SCAS v. Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397, at [19], that “[I]t should be clearly understood that an allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so.”
33. Similar views to those just stated are also to be found in De Smith’s Judicial Review (6th edition), at 266, where the learned authors state that:
“Fundamental to the legitimacy of public decision-making is the principle that official decisions should not be infected with improper motives such as fraud, dishonesty, malice or personal self-interest. These motives, which have the effect of distorting or unfairly biasing the decision maker’s approach to the subject of the decision, automatically cause the decision to be taken for improper purpose and thus take it outside the permissible parameters of the power.”
34. The learned authors proceed to note, at 268, that a decision based on malice is usually one that is directed to the person, e.g., where a byelaw or order has been made especially to thwart an individual application for a permit, and that the malice may arise out of personal or political animosity built up over a series of past dealings.
35. The Bradys also claim damages based on the tort of misfeasance of public office. As noted in Hogan and Morgan, at 971, this tort “is committed where an act is performed by a public official, either with ‘targeted malice by a public officer’ or with actual knowledge that it is committed without jurisdiction, and is so done with the known consequence that it would injure the plaintiff”. In Kennedy v. Law Society (No. 4) [2005] 3 IR 228, Geoghegan J. held, at 260, that the first limb of the tort “necessarily involves bad faith in the exercise of the public power for an improper or ulterior motive”. As to the second limb, the subjective standard of reckless indifference was applied, at 262, viz. “a test of knowledge or foresight that a decision would cause damage”. A subjective test is used because, per Geoghegan J., at 262, “If the ‘reasonable foreseeability’ test wa spermitted, it would introduce an objective element and, effectively, remove the requirement of bad faith”. In Beatty v. Rent Tribunal [2006] 2 IR 191, Fennelly J., at 204, relied on the observation of Lord Steyn in Three Rivers D.C. v. Bank of England (No. 3) [2000] 2 WLR 1220 that “bad faith in the exercise of public powers…is the essence of the tort”. Again, the concept of deliberateness, as distinct from recklessness, is crucial to a cause of action arising, so it is clear that it is only in the case of a finding of mala fides that the question of damages based on misfeasance in public office would arise.
36. Is it possible to arrive at a synthesis of key principles by reference to the cases and texts considered above? It appears to the court that the following principles can reasonably be suggested to arise:
I. General.
II. Pleading Bad Faith.
(4) Bad faith is not an assertion that should be made lightly and, like an allegation of fraud in conventional civil pleadings, should be fully particularised.
III. Onus and Burden of Proof.
IV. Inferring Bad Faith.
(7) The court should be very slow to infer bad faith. (In truth, if evidence is capable of being assessed in more than one way, it may be that a court should tend (a) to afford the decision-maker the benefit of the doubt, and thus (b) to hold that an impugned decision was not tainted by bad faith).
(8) Not stated in the above-quoted authorities but seeming nonetheless to spring from the foregoing, it is not sufficient for someone to feel that they have been victimised for mala fides to be established. This is because it will, understandably, likely often be the case that a person convinced of the rightness of his or her position will be disposed tofeel that an adverse administrative decision results from something other than a rational, reasonable and proportionate decision-making process that has objectively arrived at a different conclusion.
C. No Bad Faith; No Misfeasance.
37. The court has already found that that the process which preceded the issuance of the notice to quit to the Bradys was tainted by unreasonableness, disproportionality and, to a limited extent, perhaps even by some degree of irrationality. Moreover, it is understandable that given that Mr Brady, as a public representative, found himself in a somewhat adversarial position with the Council from time to time, he (and his wife)should have believed, and continue to believe, that the Council proceeded in bad faith. However, there is no substantive evidence to suggest that the Council did so proceed. As counsel for the Bradys himself conceded in the course of the hearings “[T]here is an evidential lacuna in relation to the matter.” In truth, there is no evidence before the court which indicates that:
(1) there was any improper purpose on the part of any Council officer;
(2) the correspondence that issued to the Bradys (albeit that it suffers from the deficiencies identified previously above) was any different from the type of correspondence that the Council typically issues to tenants who are allegedly guilty of like wrongdoing;
(3) the actions of the Council were motivated by anything other than a good faith desire to be attentive to the issue of fire safety;
(4) the (unreasonable) €6.5m professional insurance cover requirement was a targeted effort to wrong-foot the Bradys, albeit that, curiously, it was never sought of Ms Doyle;
(5) the failure by the Council to respond to the four solicitors’ letters sent on behalf of the Bradys in April, and May, 2015 was attributable to anything other than an occasional want of attentiveness by the Council to paperwork (itself not the most grieveous of wrongs, albeit that the Council has rightly admitted that it would have been preferable had the letters been acknowledged and a response sent to each);
(6) there was a pre-determined position taken by the Council as to how matters would proceed between itself and the Bradys.
38. Having regard to all of the foregoing, the court cannot but conclude that the assertion of bad faith and the related allegation of misfeasance in public office made by the Bradys in the course of this application must fail.
Part 7
European Convention on Human Rights
A. Section 3 of the Act of 2003.
39. Section 3(1) of the European Convention on Human Rights Act 2003 provides that subject to any statutory provision (other than the Act of 2003) or any rule of law “[E]very organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.” Section 3(2) empowers the court to award such damages (if any) as it considers appropriate in the event that a person suffers injury, loss or damage as a result of a contravention of s.3(1) and no other remedy in damages is available. Section 3(3) and (4) are of no relevance to the within application. Section 3(5) imposes a one-year limitation period on the commencement of proceedings concerning any alleged contravention in s.3(1); the Bradys have brought their claim within the requisite period.
B. Article 8 of the Convention.
40. Article 8 of the European Convention on Human Rights (“Right to respect for private and family life”) provides as follows:
“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 interests of national security, public safety or the economic wellbeing 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.”
C. What is a ‘Home’?
41. What is a ‘home’ for the purposes of Art. 8? In Orlícv. Croatia (Application no. 48833/07), a case in which the applicant complained that, by ordering and enforcing his eviction the domestic courts of Croatia had violated his right to respect for his home, as guaranteed under Art. 8 of the Convention. In its judgment, the Court of Human Rights helpfully summarised existing case-law in this regard, stating, at para.54:
“The Convention organs’ case-law is clear on the point that the concept of ‘home’ within the meaning of Article 8 is not limited to those premises which are lawfully occupied or which have been lawfully established. ‘Home’ is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular premises constitutes a ‘home’ which attracts the protection of Article 8(1) will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place….Thus, whether a property is to be classified as a ‘home’ is a question of fact and does not depend on the lawfulness of the occupation under domestic law”.
42. Notably, the meaning of ‘home’ in this context is not dependent on any private property rights in the property that comprises one’s home. In the within proceedings, there is no doubt but that the Bradys’ Council-owned house, occupied by them as tenants, constitutes a ‘home’ within the meaning of Art. 8 of the European Convention on Human Rights.
D. Independent Determination of Proportionality.
43. As it happens, there is a clear line of authority from the Court of Human Rights requiring an independent determination of a question affecting a person’s continued residence in their home as a procedural safeguard arising from Art. 8. Thus in McCann v. United Kingdom (2008) 47 EHRR 40, the Court stated as follows, at para.50:
“The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.”
44. Unstated, though it seems to the court self-evident from the above observation, a person should in principle be ‘meaningfully’ able to have proportionality determined. The court does not consider that it suffices to meet the above-mentioned obligation that the Bradys - a family living on a limited income, residing in State-provided property, and paying a suitably low rent, albeit not so low that they have not struggled sometimes to pay it -have a right to undertake the high-risk route of applying for judicial review in the High Court,provided they are satisfied to expose themselves to the consequent risk of penury that may present in the event that they do not succeed in that application and an order for the regrettably princely costs so often arising in such an application thereafter issues against them.
45. Continuing, however, with an analysis of relevant case-law of the Court of Human Rights, in Yordanova v. Bulgaria (Application No. 25446/06), the Court found that Bulgaria would be in violation of Art. 8 of the Convention in the event that it enforced a domestic court order requiring a group of Roma to leave municipal land on which they had been residing for some years, stating, at para. 118:
“Since the loss of one’s home is a most extreme form of interference with the right under Article 8 to respect for one’s home, any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, he has no right of occupation….This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons….
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”.
46. Again it seems to the court to be self-evident from, but not expressly stated in, the above-quoted text that the review remedy contemplated must be meaningfully available, not simply something that can be afforded by going down the high-risk, high-cost route of High Court proceedings.
47. In Buckland v. United Kingdom (2013) 56 EHRR 16, the Court considered the case of a gypsy woman who had been residing on a caravan site with her nine children for nine years and who was ultimately required to leave on foot of protracted possession proceedings in which the proportionality of her eviction was not considered. At the time, the position under the United Kingdom’s Human Rights Act of 1998 was that any Art. 8 challenge arising from a local authority possession case was required to be directed at the legislative scheme, rather than at the decision itself. In finding a violation of Art. 8, the Court of Human Rights stated, at para. 65:
“As the Court has previously emphasised, the loss of one’s home is the most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end”,
And continued, at para. 70:
“In conclusion, the applicant’s attempt to contest the making of a possession order failed because it was not possible at that time to challenge the decision to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, the Court finds that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicant was dispossessed of her home without any possibility to have the proportionality of her eviction determined by an independent tribunal. It follows that there has been a violation of Article 8 of the Convention in the present case.”
48. A similar view of the application of Art. 8 to the United Kingdom’s domestic law was taken by the United Kingdom Supreme Court in Manchester City Council v. Pinnock [2011] UKSC 45. There the Supreme Court found that there was an Art. 8 obligation to ensure an independent assessment of proportionality. Having reviewed its own jurisprudence in some detail, the Court concluded that its case-law clearly established certain propositions, including, per Lord Neuberger for the Court, at para. 45, that:
“Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end”.
49. Closer to home, in Doneganv. Dublin City Council [2012] IESC 18, our Supreme Court held that where a factual dispute arises in a case where a person is at risk of losing their home, Art. 8 requires that the factual dispute to be determined by an independent decision-maker. Thus, per McKechnie J., at para.135:
“[W]here a conflict of facts arises, which is required to be determined in relation to an alleged illegitimate infringement of Article 8, it is necessary that there be some independence between the decision-maker and those, on either side, who make, support or seek to rely on the allegations in question. It is clear that any review undertaken in this regard, must be performed by a person who is rationally unconnected to those whom I have mentioned.”
50. McKechnie J. also listed the features which a decision-making system requires in order to be compliant with Art. 8, stating at para. 143:
“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[will arise].”
51. The Supreme Court in Donegan indicated that the presence of a factual dispute would ordinarily be required for a breach of Art. 8 of the Convention to arise. However, in the above-quoted text, the Supreme Court also clearly recognises that an assessment of the proportionality of a decision to deprive a person of their home is a necessary requirement of Art. 8. It appears to this Court that: (1) a process that permits a Council landlord, or at least the relevant actors within the Council - i.e. those involved in the process leading to the issuance of the notice to quit - to conduct such an assessment would be neither procedurally sound nor an effective safeguard; (2) it is necessary that the question of proportionality is determined by an independent person designated by the Council, be that person someone within the Council (and possessed of the type of seniority and lack of prior involvement now contemplated by the Housing (Miscellaneous Provisions) Act 2014 when it comes to tenancy warnings), or without; (3) the decisions of the Court of Human Rights in Yordanova and Buckland support the conclusion at (2).
52. As regards (3), it appears to the court to be a matter of some significance that the judgments in Yordanova and Buckland post-date the decision of the Supreme Court in Donegan. So it would be untenable to conclude that the views of the Court of Human Rights, as explained in those two judgments, have been in some way rejected by the Supreme Court. And later jurisprudence emanating from the Strasbourg court is broadly consistent with Yordanova and Buckland. In Bjedov v. Croatia (Application No. 42150/09), the Court of Human Rights was presented with an ailing, elderly applicant who faced eviction. Alternative accommodation in a home for the elderly was to be made available to her, but there had been no independent determination of the proportionality of her eviction. Finding there to be a violation of Art. 8 of the European Convention, the Court stated, at paras. 65-66:
“[W]hen it comes to the decisions of the domestic authorities in the present case, their findings were restricted to the conclusion that under applicable national laws the applicant had no right to continue to occupy the flat at issue on the ground that between August 1991 and July 2001 she had been absent from the flat without a good reason. The national courts made no further analysis as to the proportionality of the measure to be applied against the applicant, namely her eviction from a State-owned flat. However, the guarantees of the Convention require that the interference with an applicant’s right to respect for her home be not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case. Furthermore, no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatia’s obligations under the Convention….
In this connection the Court reiterates that any person at risk of an interference with her right to a home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, he or she has no right to occupy a flat.”
53. The decision in Bjedov clearly indicates that the denial of an independent decision of the question of proportionality constitutes a violation of Art. 8. And again the court considers it to be self-evident, albeit not expressly stated in Bjedov, that a person must meaningfully (and not just via a potentially financially ruinous route) be able to have proportionality and reasonableness determined in the manner contemplated by the Court of Human Rights.
54. In Webster v. Dún Laoghaire Rathdown County Council [2013] IEHC 119, the compatibility of s.62 of the Housing Act 1966 vis-à-vis the European Convention on Human Rights was challenged on the basis that it did not provide for an independent hearing on proportionality (as opposed to an independent hearing on any factual dispute arising). Hedigan J. considered that the issue of proportionality in Webster was so clear-cut that the outcome of any such assessment could be easily predicted but noted as follows, at para. 7.9:
“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”.
55. In the present case, the Council did not at any time address the issue of whether (i) the issuance of the notice to quit, or (ii) its subsequent refusal to revoke the notice to quit, constituted a disproportionate interference with the Bradys’ rights under Art. 8 of the European Convention on Human Rights. It appears to this Court that (a) in the absence of an independent body or person (within or without the Council) to determine the said issue of proportionality, and (b) in the absence of any such determination, the Council has not acted in compliance with Art. 8 of the Convention in the case now presenting.
Part 8
Article 40.5 of the Constitution
56. Article 40.5 of the Constitution states as follows:
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”.
57. In recent years, the parameters of the right to inviolability of the dwelling in the civil context were considered by Hogan J. in Wicklow County Council v. Fortune [2012] IEHC 406 and Irish Life and Permanent v. Duff [2013] IEHC 43.In Fortune, Hogan J. considered the right to inviolability of the dwelling in the context of an application for an order requiring the demolition of a dwelling erected in contravention of applicable planning requirements, stating, at para. 41:
“Article 40.5 affords a real protection which the courts must safeguard by word and deed. Insofar as…Article 40.5 speaks of ‘inviolability’, the drafters must be taken to have intended to convey through the use of rhetorical and philosophically inspired language drawn…from the European constitutional tradition so that the dwelling should enjoy the highest possible level of legal protection which might realistically be afforded in a modern society.”
58. In Duff, a case which involved an appeal against a Circuit Court order for possession, Hogan J. again amplified upon the import of Art. 40.5, noting as follows, at para.50:
“None of this is to suggest that a defaulting borrower can invoke Article 40.5 to avoid having to yield up possession where a court so orders, no more than Article 40.5 can be invoked to justify the unlawful construction of a dwelling on another’s land or the construction of a dwelling on another’s land or the construction of a dwelling without planning permission….It is, however, to say that those elements of formal notice, foreseeability and an independent determination of the objective necessity for possession of the dwelling are presupposed by the guarantee of inviolability and these protections cannot be assured outside the judicial process or, at least, something akin to the judicial process”.
59. It appears to the court that a couple of points of especial interest can be identified in the above-quoted segments of Hogan J.’s judgments. First, the notable rigour with which Hogan J. clearly contemplates the courts ought to safeguard “by word and deed” the protection afforded by Art. 40.5. Second, the express recognition by Hogan J. in Duff of the need for “an independent determination of the objective necessity for possession” - albeit that in the type of situation in which the Bradys find themselves (where the matter at issue is the proportionality of a proposed eviction), it would seem preferable, as a matter of economic prudence, that the first line of recourse when it comes to gauging proportionality would be an independent process, rather than a judicial process, though a truly accessible judicial process would not of course be objectionable. Regardless, however, of how an independent determination is to be achieved, it appears to the court that both of the points just mentioned lend credence to the proposition advanced by counsel for the Bradys that the judgments in Fortune and Duff support the well-established and above-considered Convention-related jurisprudence as to the requirement for an independent determination of the proportionality of a decision which interferes with an individual’s right to respect for their home life.
60. In the present case, as noted above, the Council did not at any time address the issue of whether (i) the issuance of the notice to quit, or (ii) its subsequent refusal to revoke the notice to quit, constitutes a disproportionate interference with the Bradys’ rights under Art. 8 of the European Convention on Human Rights. It appears to this Court that (a) in the absence of an independent body or person (within or without the Council) to determine the said issue of proportionality, and (b) in the absence of any such determination, there has in consequence been a disproportionate intrusion upon the right of the Bradys under Article 40.5 to the inviolability of their dwelling.
Part 9
Reliefs to be Granted
61. In the circumstances here presenting and for the reasons identified above, the court indicates below which of the reliefs now sought by the Bradys it will/will not grant:
62. (1) Relief sought:an order of certiorari quashing the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit on them.
The court will grant the order sought.
63. (2) Relief sought: a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of its being irrational, unreasonable and disproportionate.
The court will grant the order sought.
64. (3) Relief sought: a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of its being made in bad faith.
This relief is declined.
65. (4) Relief sought: a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of it not being made bona fides for any purpose associated with the discharge of the duties and functions as a housing authority pursuant to the Housing Act 1966, as amended.
This relief is declined.
66. (5) Relief sought: a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of the decision being in breach of the Bradys’ rights pursuant to Article 40.5 of the Constitution.
The court will grant the declaration sought.
67. (6) Relief sought: a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and/or unlawful by reason of it being in breach of the Bradys’ rights pursuant to Article 8 of the European Convention on Human Rights, as incorporated into Irish law by the European Convention on Human Rights Act 2003.
The court will grant the declaration sought.
68. (7) Relief sought: a declaration that the decision of the Council of 12th March, 2014, to terminate the Bradys’ tenancy by service of a notice to quit was ultra vires and unlawful by reason of its being in breach of the Council’s duties pursuant to s.3 of the European Convention on Human Rights Act 2003.
The court will grant the declaration sought.
69. (8) Relief sought: a declaration that the refusal of the Council to revoke the notice to quit being unlawful by reason of that refusal being irrational, unreasonable, disproportionate, made in bad faith, contrary to the proper discharge of its functions under the Housing Act 1966, is in breach of the Bradys’ constitutional rights and their rights pursuant to the European Convention on Human Rights Act and in breach of the Council’s duties under s.3 of the European Convention on Human Rights Act 2003.
The court does not find the bad faith to which reference is made to present. Otherwise this ground of relief appears a repetition of other reliefs sought and for that reason is declined.
70. (9) Relief sought: a declaration that the expressed intention of the Council to seek to recover possession of the Bradys’ home by way of application for a summons under s.62 of the Housing Act 1966, is unlawful and ultra vires having regard to Article 8 of the European Convention on Human Rights and the declaration of incompatibility previously made by the Supreme Court.
This ground of relief appears redundant in light of the other reliefs being granted.
71. (10) Relief sought: damages, including aggravated damages, for misfeasance in public office, breach of constitutional rights and/or pursuant to s.3(2)of the European Convention on Human Rights Act 2003;
The court does not find any misfeasance of public office to present. As indicated, the court does find a significant breach of constitutional and Convention rights to have arisen that has significantly impacted upon the home life of the Bradys.This being so, the court considers it appropriate that it order that damages in the amount of €3,000 be paid by the Council to each of Mr and Mrs Brady.
