Supreme Court allows appeal against High Court order restricting property use under Fire Services Act 1981 s.23.

THE SUPREME COURT

[Appeal No. 436/11 & 421/11]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

McKechnie J.

Between/

Dublin City Council

Applicant

and

Thomas McFeely, Laurence O’Mahony and

Coalport Building Company Limited

Respondents/Appellants

Judgment of Murray, J. delivered on the 31st July, 2012

1. I agree that this appeal should be allowed for the reasons set out in the judgments of the Chief Justice and Mr. Justice Fennelly. I

do wish to make some additional observations concerning the ambit of s.23 of the Fire Services Act, 1981 as it applies to users of

property affected by an order under that section.

2. These proceedings were initiated by Dublin City Council against the appellant in its capacity as a fire authority within the meaning

of the Fire Services Act, 1981.

3. The application to the High Court was made pursuant to s.23(1) of the Fire Services Act, 1981.

4. Section 23(1) of that Act provides as follows:

“Where a fire authority considers that the risk to persons in the event of fire is so serious that the use of particular land

or a particular building, or part thereof, should be restricted or should be immediately prohibited until specified measures

have been taken to reduce the risk to a reasonable level, it may apply to the High Court for an order restricting or

prohibiting the use of the land or building accordingly.” (emphasis added)

5. Sub-section 2 is concerned only with interim or interlocutory orders.

6. On the face of it, the section confines the jurisdiction of the High Court to making an order restricting or immediately prohibiting

the use of land or buildings until specified measures have been taken to reduce the fire risk to a reasonable level. Such was the

nature of the order sought by Dublin City Council in its initiating application on foot of a Notice of Motion returnable for 14th October,

2011.

7. Those directly affected by an order under that section are the users of the particular land or building, who may or may not be the

owners. If the users of such properties are tenants, the owners will be affected indirectly, and, depending on the circumstances,

possibly in no less serious a way than the user.

8. The only sanction which the section seems to envisage as regards such persons is the restriction or prohibition on the use of

property until specified measures have been taken.

9. Thus, on the face of it, a user of the property concerned (including an owner) could, in principle, opt to forego the use of the

property and not carry out any works specified without further sanction. (It is perhaps possible that in particular circumstances a

change of use, from say a B&B to use as a family home, would be sufficient to reduce the risk to a reasonable level because of

different requirements as to safety standards). Persons who were blameless as regards the cause or source of the fire hazard, but

who could not afford to carry out remedial works, would nonetheless remain restricted or prohibited, as in this case, from using the

property so long as the specified works were not done. That could result in an enormous degree of hardship and distress, albeit

unavoidable in the interests of fire safety, where families and other persons are deprived, again as in this case, of the use of their

dwellings and property. Here we are concerned principally with 187 apartments and a small number of retail outlets.

10. The appellant, although the owner of some of the apartments and having an interest in the buildings and common areas in Priory

Hall, had no further legal interest in most of the apartments, and thus no vested interest in whether those properties could continue

to be used or not as dwellings.

11. However, he did in any event give undertakings to the High Court, in the particular circumstances outlined in the two judgments

referred to, to carry out specified works. The issues in the appeal have essentially turned on the orders made by the High Court

relating to the works which he was to carry out on foot of his undertaking.

12. The persons or bodies who were in fact responsible for causing a property to be so seriously deficient as regards fire safety may,

at the time when the fire authority makes an application under s.23, no longer be either users or owners of the property. Thus,

builders or developers who were responsible but who no longer have any legal interest in a property or building may remain unaffected

by any order which could be made under the section.

13. Furthermore, whether the section confers on the High Court any jurisdiction to make a mandatory order in respect of a user or

owner which would go beyond the restriction or prohibition of use, appears at least doubtful.

14. In the light of the grounds upon which the Court, as expressed in the judgment of the Chief Justice and Mr. Justice Fennelly, has

decided to allow the appeal, it is not necessary to embark on a definitive interpretation of s.23 in this respect.

15. I do, however, feel that it may be said that s.23, and any proceedings brought on foot of it, does not seem to encompass much

in the way of assistance or remedies for blameless owners or users of such premises, as is the position of the residents concerned

here who have been subject to so much damage and distress by reason of the safety deficiencies in the properties which they bought

in good faith. It would appear that such persons would be more effectively protected if the observance of fire safety standards by

builders or developers were enforced before sale or transfer to third parties, having regard to the intended use of the property in

question.