High Court dismisses judicial review; refuses independent review; upholds proportionality decision under Article 8 ECHR.

Neutral Citation: [2014] IEHC 233

THE HIGH COURT

[2013 No. 530 J.R.]

BETWEEN

EDWARD LATTIMORE

APPLICANT

AND

DUBLIN CITY COUNCIL

RESPONDENT

JUDGMENT of O’Neill J. delivered on the 9th day of May 2014

1. The applicant seeks an order of certiorari quashing the decision of the respondent dated 23rd April 2013, to refuse to permit the

applicant to succeed to the tenancy of a property at 21, Ennis Grove, Irishtown, Dublin 4. A further order is sought quashing the

decision of the respondent of 1st July 2013, to refuse to provide the applicant with an independent review of the proportionality of

the decision dated 23rd April 2013. The applicant contends that the respondent has acted in breach of s. 3 of the European

Convention on Human Rights Act 2003 (‘the Act of 2003’), and that his rights under Article 8 of the European Convention on Human

Rights and Article 40.5 of the Constitution have been infringed. The applicant is seeking an independent assessment of the

proportionality of the decision to refuse him to continue in the tenancy at 21, Ennis Grove, while the respondent contends that it has

no statutory obligation or authority to provide for such a review.

Background

2. The applicant was born on 30th March 1944. He first began residing at 21, Ennis Grove, a 3-bedroom house in Irishtown, Dublin 4,

in March 1956. At that time, the tenants of the property were the applicant’s parents, and since then, the house has been

continuously occupied by the applicant’s family. A member of the applicant’s immediate family has been the named tenant of the

property at all times since 1956. In 1962, the applicant moved to the United Kingdom. In 1989, the applicant’s mother died and his

sister, Cassandra Lattimore, became the named tenant of the property having been approved to succeed as the sole occupant. In

1991, the applicant returned to Ireland and moved back into the property at 21, Ennis Grove. In his grounding affidavit, the applicant

avers that he believed he was made a joint tenant of the property at this time, and only discovered in 2012, that this was not the

case and that he had merely been added to the rent account of the property. The applicant avers that he has resided at the house

continuously since 1991.

3. The applicant’s sister, with whom he resided at the property, suffered from an intellectual disability and spent a considerable

amount of time throughout her life in a residential care centre. The applicant avers that he returned to Ireland out of concern for his

sister as he believed she would have encountered considerable difficulties living alone and managing her financial and household

responsibilities. The applicant states that he was primarily responsible for managing the household finances during the period from his

return to Ireland in 1991 to 10th September 2012, when his sister died. An account statement was exhibited which shows that the

applicant managed the household finances diligently and rarely allowed the account fall into arrears and never for an amount of more

than €50.

4. Following the death of his sister, the applicant completed an application for succession to the tenancy on 5th December 2012. By

letter dated 7th March 2013, the applicant was informed that his application had been considered “having regard to the requirements

as set out in the current Allocations Scheme. The Scheme is mandated by Section 22 of the Housing (Miscellaneous Provisions) Act

2009 and is adopted by the elected members of Dublin City Council.” While the applicant satisfied the requirement that he must be

resident or on the rent account for a period of five years immediately prior to the death of the tenant, it was decided that “a three

bedroom dwelling is not considered appropriate for the needs of a single person” and an alternative one bedroom property would be

sourced. On 21st March 2013, the applicant replied to this letter informing the respondent that he had always understood that he

was a joint tenant of the property and that for the last number of years he had been responsible for managing the household

finances. He sought a review of the decision of 7th March 2013, and also enclosed a letter from his General Practitioner, Dr. John

Ryan.

5. Dr. Ryan’s letter states that the applicant suffers from “multiple medical problems including, Prostatic Cancer, Colon Polyps,

Impaired Fasting Glycemia, Hypertension, Gout, Chronic Pancreatitis.” He also states that the applicant suffers from anxiety and

depression and that “the news that he is to be removed from his home has caused him acute anxiety and he is unable to sleep or

eat.” Dr. Ryan states that the applicant has a strong support network nearby and that he has “no doubt that if he was moved from

the house that his health would seriously decline.” It was submitted that the applicant relies heavily on the support provided by his

next door neighbours, his brother who lives approximately 400m away, and other close friends who live nearby.

6. By letter dated 23rd April 2013, the applicant was informed by Ms. Teresa Conlon, Allocations Officer for the respondent, that

following a review of his application, having regard to the requirement of the Allocations Scheme, it was decided that the refusal of

his application to continue residing at 21, Ennis Grove was “a correct and valid decision of the Council, and your appeal is therefore

unsuccessful”. It was determined that “a three bedroom dwelling is not appropriate to the needs of a single person” and that

alternative one bedroom accommodation would be sourced. On 8th May 2013, the applicant was informed that “the Council are

prepared to make you an offer of tenancy in accordance with the Allocations Scheme and appropriate to the needs of a single

person”. The respondent states that this alternative property is approximately 850 metres away from the house at Ennis Grove and

that it is in a complex specifically for older persons where there is support available. The applicant’s brother also resides at this

complex. However, the applicant says that his brother is also in very poor health and would not be in a position to provide any day-

today support. The applicant was advised that failure to accept this offer within two weeks may result in serving a ‘Notice to Quit’

and ‘Demand for Possession’ of the property at Ennis Grove.

7. On 15th May 2013, the applicant’s solicitor replied to Ms Conlon’s letter stating that pursuant to s. 3 of the 2003 Act, the

respondent is required to act in a manner compatible with the European Convention on Human Rights and that the applicant’s rights

under Article 8 would be infringed by compelling him to move from his home. It was further stated that this decision should be made

by an independent decision maker and an independent review of the proportionality of the respondent’s decision was sought. Mr

Terence O’Keeffe, Law Agent for the respondent, replied on 1st July 2013, stating that such a procedure is arguably ultra vires. He

reiterated that it was the respondent’s view that the house at Ennis Grove is “greatly in excess of [the applicant’s] housing needs”

and that it is “grossly unfair to other applicants who have complied with the statutory requirements”. Following the respondent’s

failure to arrange for an independent review of the decision, judicial review proceedings were commenced and leave was granted by

Peart J. on 15th July 2013.

Statutory Framework

8. Section 2 of the European Convention on Human Rights Act 2003 (‘the 2003 Act’) provides that –

“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the

rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations

under the Convention provisions”.

Section 3 of the 2003 Act refers to the obligation on organs of the State to act in a manner compatible with the Convention –

“Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its

functions in a manner compatible with the State's obligations under the Convention provisions”.

9. Article 8 of the European Convention on Human Rights outlines a person’s right to respect for private and family life:

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

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance

with the law and is necessary in a democratic society in the interests of national security, public safety or the economic

well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the

protection of the rights and freedoms of others.”

Article 13 of the Convention guarantees a persons right to an effective remedy –

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before

a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

10. Pursuant to s. 60 of the Housing Act 1966, as amended by the Housing Act 1988, a local authority is required to have a Scheme

of Letting Priorities. Section 22 (3) of the Housing (Miscellaneous Provisions Act) 2009 states:

“A housing authority shall, not later than one year after the coming into operation of this section, in accordance with

this section and any regulations made thereunder, make a scheme (in this Act referred to as an ‘allocation scheme’))

determining the order of priority to be accorded in the allocation of dwellings to—

(a) households assessed under section 20 as being qualified for social housing support, and

(b) (b) households, in receipt of social housing support, that have applied to the housing authority to transfer to

another dwelling or to purchase a dwelling under Part 3 and the housing authority consents to the transfer, or

purchase, as the case may be.

11. The respondent adopted its Allocations Scheme on 9th May 2011, paragraph 1.7 of which relates to ‘Succession to Tenancy’ and

states as follows :

“Where death or departure of a tenant takes place, the tenancy will normally be given to a surviving spouse/partner,

provided that such spouse/partner has been resident in the dwelling for a continuous period of at least two years

immediately prior to the death / departure of the tenant.

On the death or departure of both parents the tenancy will normally be given to a son or daughter, irrespective of

number in the household, provided that he/she has been living in the dwelling for at least two years immediately prior to

the death or departure of the tenant. However, departure of the tenant by way of purchasing or providing own

accommodation will not, generally, be grounds for a child over 18 years to remain in the dwelling and apply for

succession.

Each case will be examined on its merits and where there is more than one member of the household remaining in the

dwelling, the tenancy will normally be given to the member who, in the opinion of the Manager, is most likely to keep the

household harmoniously together.

A person other than a spouse, partner, son or daughter who has resided in the dwelling for at least five years

immediately prior to the death or departure of the tenant may be allowed to succeed where there is no spouse,

partner, son or daughter eligible to succeed and where the dwelling size is appropriate to his/her needs.

A spouse, partner, son or daughter who was residing at the date of death / departure of the tenant and who has not

resided for the full two years prior to the death or departure of the tenant but has a total of ten years aggregate

residence in the dwelling in the previous fifteen years and is in need of housing accommodation and is unable to provide

accommodation from his/her own resources may be considered to succeed to the tenancy where the dwelling size is

appropriate to his/her needs.

In all cases of claims for succession to tenancy it will be necessary that the applicant / applicants have been included in

the family household details for rent assessment purposes for the requisite period / periods as outlined above. Generally

no application will be considered where this condition is not complied with.”

Applicant’s Submissions

12. The applicant submits that the decision of the respondent dated 23rd April 2013, was irrational, unreasonable, and

disproportionate having regard to the applicant’s right to respect for private life and family life as guaranteed by Article 8 of the

European Convention on Human Rights. It was submitted that the respondent failed to act in accordance with its obligations under s.

3 of the 2003 Act, to act in a manner compatible with the Convention. It was further submitted that the said decision was

disproportionate, having regard to the applicant’s right to inviolability of the dwelling under Article 40.5 of the Constitution. It was

argued that in arriving at its decision, the respondent applied a fixed and inflexible policy which prevented the respondent from giving

full consideration to the particular facts and merits of the applicant’s case and therefore unnecessarily fettered the respondent’s

discretion.

13. It was submitted that a long line of jurisprudence from the European Court of Human Rights supports the proposition that the

property in question in these proceedings is undoubtedly the applicant’s home, and as such, his rights under Article 8 are engaged. In

Orlic v Croatia (Application No. 48833/07), the court considered whether or not the residence in question came within the concept of

a ‘home’ under the convention:

“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 . . .

55. As to the present case, it is undisputed that the applicant and his family had lived in the flat in question between

November 1991 and 28 October 2004 when they were evicted. Thus, at the time when the interference with the

applicant’s right to respect for his home occurred, he had lived in the flat in question with his family. Having regard to

the factual circumstances outlined above, the Court finds that the applicant had sufficient and continuing links with the

flat at issue for it to be considered his “home” for the purposes of Article 8 of the Convention, despite the fact that

according to the national courts’ findings he had no legal basis for occupying it.”

14. Counsel for the applicant submits that in light of this decision, it is irrelevant that the applicant has never held a tenancy in his

own right. He has resided at 21, Ennis Grove and been named on the rent book continuously since 1991, and it has been his family’s

residence since 1956. It was submitted that this is more than sufficient to establish the property as his home under the Convention.

15. It was contended that any interference with this right requires an independent determination of the proportionality of such

interference and that the Council have failed to provide this to the applicant, thereby violating Article 8. In McCann v. United

Kingdom [2008] 47 EHRR 40, it was held that:

“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.”

16. In Yordanova and others v. Bulgaria (Application No. 25446/06), the Court first considered the lawfulness of the removal order

made by the national authority. Having found that there was a valid legal basis in domestic law, the Court considered whether or not

the domestic legal framework and procedures met the Convention requirements. The Court stated that any interference must be

based on a ‘legitimate aim’ and must be ‘necessary in a democratic society’. Interference will be considered necessary in a democratic

society if it answers “a pressing social need, and, in particular, if it is proportionate to the legitimate aim pursued”. The Court noted

that in assessing this criterion “a margin of appreciation must be left to national authorities, who by reason of their direct and

continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate

needs and conditions.” The Court stated that “in spheres involving the application of social or economic policies, including as regards

housing, there is authority that the margin of appreciation is wide.” However, the court also held that the margin of authority:

“…will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key

rights. Since Article 8 concerns rights of central importance to the individual’s identity, self-determination, physical and

moral integrity, maintenance of relationships with others and a settled and secure place in the community, where

general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin

of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion

into the personal sphere of the applicant.”

17. In relation to assessing the proportionality of any decision to interfere with a person’s rights under Article 8, the Court followed

and repeated the above quoted passage from the McCann v. United Kingdom case.

18. This view was reiterated in Buckland v. The United Kingdom [2013] 56 EHRR, which also repeated that in order for interference to

be necessary in a democratic society, the decision must answer a “pressing social need” and be “proportionate to the legitimate aim

pursued”. The Court in that case went on to state that the procedural safeguards required by Article 8 had not been met in

circumstances where “it was not possible to challenge the decision to seek a possession Order on the basis of the alleged

disproportionality of that decision in light of personal circumstances.” The United Kingdom Supreme Court expressed a similar view of

the requisite procedural safeguards for compliance with Article 8 in Manchester City Council v Pinnock [2011] 2 AC 104, where it was

held 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 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.”

19. Counsel for the applicant submits that the facts of Bjedov v. Croatia (Application no. 42150/09) are similar to the applicant’s

case, and that it is clearly indicated that the denial of an independent assessment of proportionality constitutes a violation of Article

8. In Bjedov, an elderly lady with a number of medical problems was the subject of an eviction order in respect of a property at which

she had resided for a number of years. She had been offered alternative accommodation at a home for the elderly but there had not

been an assessment of the proportionality of her eviction by an independent body. The Court held:

“The Court notes that when 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 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.”

20. In the case of Pullen v. Dublin City Council & Ors [2008] IEHC 379, Irvine J. considered whether or not the process for

repossession of a local authority home pursuant to s. 62 of the housing Act 1966, was in conformity with the Convention. It was held

that the council is an organ of state under s3 of the 2003 Act and that the decision to evict the plaintiffs would interfere with Article

8 rights. Irvine J. stated that:

“Having regard to the magnitude of the right with which the defendant intended to interfere and the consequences of

such interference, the defendant was obliged to justify such interference as being not only in pursuit of the legitimate

aims identified in Article 8(2) but also as being necessary in a democratic society.”

21. In relation to the need for an assessment of proportionality, Irvine J. concluded that:

“The use of s. 62 of the Act of 1966 to interfere with the plaintiffs’ right to respect for their home following an in-house

investigation, in circumstances where such a procedure did not afford the plaintiffs any opportunity to dispute the

lawfulness or the proportionality of the defendant’s decision to evict them, was not justified as being necessary in a

democratic society and was disproportionate to the defendant’s stated aims having regard to the significance of the

rights interfered with.”

22. The Court later went on to consider the remedies available to the Court and Irvine J. determined that the Court was confined to

making an award of damages. Counsel for the applicant in this case, however submits that the present case is distinguishable as in

Pullen there was already a warrant for possession issued pursuant to the Housing Act 1966. The plaintiffs had sought a permanent

injunction restraining council acting on this order. Irvine J. held that the legislature did not intend to provide any remedy that would

have the effect of displacing or curtailing the operation or enforcement of any constitutionally valid provision of nation law. The

applicant argues that this is not what is sought in the present case, as a valid warrant for possession has not been granted. It was

argued that Pullen was a plenary hearing, while the case of O’Donnell v. South Dublin County Council [2008] IEHC 454 indicates that

there is no such constraint on remedies in judicial review proceedings. O’Donnell involved a travelling family including one applicant

who suffered from a disability. The standard of accommodation provided was at issue. Edwards J. found that the respondent had not

complied with its obligations under s.3 of the 2003 Act and contrasted the remedies available in a judicial review with those available

in a plenary action in the following terms:

“Unlike the situation in this case, the O’Donnell case heard by Laffoy J. was brought by Plenary Summons and the only

remedy available to the Court was an award of damages. The present case involves a judicial review and the Court has

a much wider range of remedies available to it, including damages.”

Having found that the applicant’s rights under Article 8 had not been vindicated, Edwards J. stated:

“I am therefore prepared to make a declaration to that effect and I am prepared to order the first named respondent

to exercise its statutory powers under the Housing Acts 1966-2004 requiring it to provide the applicants…with adequate

temporary accommodation pending their placement in permanent accommodation under the Traveller Accommodation

Programme 2005-2008”.

23. Counsel for the applicant argued that the Supreme Court in Donegan and Gallagher v. Dublin City Council [2012] IESC 18,

conclusively determined that it is not possible to use s. 2 of the 2003 Act to interpret the Housing Act 1966, as amended, so as to

permit the District Court to consider the proportionality of issuing a warrant for possession. McKechnie J. outlined the factors to be

considered when determining if a decision by the Housing Authority is Article 8 compliant:

“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.

Where any one or more of these requirements, when considered collectively and having regard to the margin of

appreciation, is absent, it may be considered that the safeguards necessarily attendant on Article 8 for the purposes of

its vindication have not been satisfied. A violation in such circumstances may follow.

The suggested procedural safeguard as applying in this jurisdiction is the remedy of judicial review; as above-

established, s. 62(3) cannot be relied upon in this regard. Whilst, in a great number of cases judicial review will be a

sufficient and appropriate remedy, by which issues between public landlords and their tenants, arising out of that

relationship, can be resolved, there will undoubtedly be some rare cases in which such remedy will not be suitable. This

results from the nature and scope of judicial review and, in particular, from the limitation of its operation relative to the

factual dispute.”

24. The applicant submits that the Supreme Court explicitly recognised in Donegan that an assessment of proportionality of a decision

to deprive a person of their home is a necessary requirement of Article 8. The applicant contends that this requirement has not been

met in the present case, and cannot be met in eviction proceedings under s. 2 of the Housing Act. It was submitted that a landlord

cannot be permitted to conduct such an assessment and that the post-Donegan European case law supports the proposition that an

independent body must consider proportionality.

25. Counsel for the applicant states that in Webster v. Dun Laoghaire Rathdown County Council [2013] IEHC 119, Hedigan J. sought

to synthesise the decision in Donegan with more recent European jurisprudence as outlined above. Hedigan J. found that there was no

issue of proportionality in Webster but stated:

“It may well be that in the light of Bjedov and Buckland, the Irish courts may eventually find that the absence of an

independent tribunal to determine the proportionality of an eviction from a home may give grounds for a declaration of

incompatibility even where there is no factual dispute. The circumstances here, however, do not support such a finding”

26. It was further submitted by the applicant that there is no evidence that the respondent considered the proportionality of the

decision to refuse to allow the applicant to remain at 21, Ennis Grove at all, either by an independent body or otherwise, rendering

the decision unlawful and in breach of s. 3 of the 2003 Act. The applicant rejects any suggestion by the respondent that providing for

an independent review is not permitted by statute and any such provision would be ultra vires. It was submitted that the respondent

is given a wide statutory discretion which it unnecessarily fettered in this case and that there is no prohibition or bar of any kind to

the respondent providing for an independent review.

27. Counsel for the applicant submits that the most appropriate resolution in these proceedings would be to grant the relief sought

and allow the respondent to provide for an independent assessment of proportionality. It was submitted that if there is some

statutory bar to such a course of action being adopted by the respondent, which is not accepted, then there is authority which

suggests that this Court can carry out an assessment of proportionality, going beyond the more traditional constraints in judicial

review proceedings. In McSorley v The Minister for Education and Skills [2012] IEHC 201, Hedigan J. reiterated the role of this Court in

judicial review proceedings as set out by Denham J. in Meadows v. Minister for Justice Equality and Law Reform [2010] IESC 3 as

follows:

“(i) In judicial review the decision-making process is reviewed.

(ii) It is not an appeal on the merits.

(iii) The onus of proof rests upon the applicant at all times.

(iv) In considering the test for reasonableness, the basic issue to determine is whether the decision is fundamentally at

variance with reason and common sense.

(v) The nature of the decision and the decision maker being reviewed is relevant to the application of the test.

(vi) Where the legislature has placed decisions requiring special knowledge, skill, or competence, for example as under

the Planning Acts, with a skilled decision maker, the Court should be slow to intervene in the technical area.

(vii) The Court should have regard to what Henchy J. in The State (Keegan) v. Stardust Victims Compensation Tribunal,

referred to as the ‘implied constitutional limitation of jurisdiction’ in all decision-making which affects rights. Any effect

on rights should be within constitutional limitations and should be proportionate to the objective to be achieved. If the

effect is disproportionate it would justify the court setting aside the decision.”

In that context, Hedigan J. went on to decide the case as follows:

“Clearly the circumstances under which the Court can intervene with a decision maker involved in an administrative

function such as herein are limited. However as stated above the Court must have regard to the implied constitutional

limitation of jurisdiction in all decision-making which affects rights. Any effect on rights should be within constitutional

limitations and should be proportionate to the objective to be achieved. If the effect is disproportionate this justifies the

court setting aside the decision. Clearly the Ministers decision has a profound effect upon the applicant's rights. Thus the

Court must ask was the decision reached in this case disproportionate? . . . It seems to me that bearing in mind the

inordinate length of time since the events in question and balancing that with her apparently very satisfactory

performance of her duties as principal in the time between, there is in the decision to now remove her from her post, a

manifest disproportionality that requires the Court to intervene”

28. The applicant also contends that his constitutional right to inviolability of the dwelling has been breached. Counsel refers to the

case of Wicklow County Council v Fortune [2012] IEHC 406, which considered the parameters of this right in civil matters. Hogan J.

held that:

“Article 40.5 affords a real protection which the courts must safeguard by word and deed. Insofar as the 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 (as Hardiman J. pointed out in Cunningham) 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. In the planning context, this does not mean that the courts cannot order the demolition of

an unauthorised dwelling because it is ‘inviolable’. It rather means that the courts should not exercise the s. 160

jurisdiction in such a manner so as to require the demolition of such a dwelling unless the necessity for this step is

objectively justified and, adapting the language of the European Court of Human Rights (in an admittedly different

context) in Goodwin v. United Kingdom (1996) 22 EHRR 123, the case for such a drastic step is convincingly established”

It is submitted that the need to remove the applicant from his home has not been objectively justified. The decision of the

respondent does not take account of the fact that the applicant has resided at this property for many years and that he is not simply

a new applicant seeking an allocation.

Respondent’s Submissions

29. The respondent submits that the Housing Authority has at all times acted in accordance with its statutory obligations and the

provisions of the Allocations Scheme established pursuant to the Housing Act 1966, as amended. It was submitted that the fact that

the applicant resided at the property and paid rent there since 1991, does not entitle him to succeed to the tenancy at 21, Ennis

Grove. However, it was submitted that having considered the merits of his application, the respondent decided, in the circumstances,

to source a new allocation of more suitable alternative accommodation close by. It was submitted that the respondent is an

independent and impartial body which has a statutory duty to consider all of the factors before it, one of which is size and suitability

of the accommodation. The respondent denies that a fixed and inflexible policy was applied when determining the applicant’s

application to succeed to the tenancy at 21, Ennis Grove or that the respondent fettered its discretion in any way. Rather, it was

submitted that the respondent is required to engage in a multi-factorial consideration and to balance the various rights and interests

of different persons on its housing waiting list in arriving at its decision. The Court was told that at the time of these proceedings,

there were 1431 applicants seeking accommodation from the respondent, and 134 of these were seeking 3-bedroom accommodation

in the relevant area. It was submitted that the impugned decisions did include a consideration of proportionality. In the decision of

23rd April 2013, Ms. Conlon states that:

“I have taken into account your application form, the information contained therein and the further submissions made

by you in your correspondence . . .

Having taken your application and all of the forgoing circumstances into consideration and having regard to the

requirements of the Allocations Scheme, I must inform you that the refusal of your application for succession of 21 Ennis

Grove and the approval of your succession to a dwelling appropriate to your needs was a correct and valid decision of

the Council . . . ”

30. Counsel for the respondent contends that a consideration of proportionality includes a consideration of all matters and, in light of

the applicant’s personal circumstances, he was not put to the end of the waiting list and was provided with accommodation close by.

In the case of Rock v. Dublin City Council & Ors. [Unreported, Supreme Court, 8th February 2006], Geoghegan J. stated that:

“In these housing cases, it is very important for the reasons which I have indicated that the management of the housing

pool be conducted in an orderly and speedy manner by the Council, whose duty, as pointed out by Mr. Connolly, is to the

general body of people in need of housing and not to any particular individual, at least in this particular context.”

31. The respondent submitted that there is a presumption of validity of the public body’s decision and that the onus of proving that

the respondent failed to assess proportionality lies with the applicant. Counsel for the respondent relied on the following passage from

the judgement of Charleton J. in Weston v An Bord Pleanála as authority for this:

“In Lancefort Limited v. An Bord Pleanála (Unreported, High Court, McGuinness J., 12th March, 1998), the following

passage on the burden of proof, at pp. 21-22, which applies as much to a planning authority as to An Bord Pleanála

appears:-

‘Counsel for the Notice Party also submitted that where the evidence as to whether a statutory body entrusted by the

legislator with a particular function did not exercise its statutory duties, there is presumption of validity in favour of the

decision under attack … Finlay P. … in re Comhltas Ceolteorí Éireann (High Court unreported 14th December, 1977)…

said (at pages. 3-4 of the transcript of his Judgment):

‘A planning authority is a public authority with a decision making capacity acting in accordance with statutory powers

and duties. In my view, there is rebuttable presumption that its acts are valid’.

It appears to me that this submission… is well-founded. The onus of prove [sic] in establishing that An Bord Pleanála did

not consider the question of environmental impact assessment… and thereby rebutting the presumption of validity of

the Bord’s decision, lies squarely on the Applicant. That burden of proof, it seems to me, has not been fully discharged.

In addition, the Court has discretion in regard to Orders sought by way of judicial review. In this case, the Bord had

before it ample material on which to make its decision. The report of the inspector raises and refers to many of the

matters which would also be covered in a environmental impact assessment. Finally, no participant in the oral hearing

suggested that an environmental impact assessment was required. … Bearing all these matters in mind I would be

reluctant to exercise my discretion in favour of the Applicant on this point’.”

32. The respondent also submitted that domestic legislation does not provide for the establishment of an independent Tribunal or

body, as sought by the applicant, and that there was no requirement on the respondent to provide this. It was submitted that what

the applicant seeks is something which would be outside the scope of the respondent’s statutory powers and that no delegation of

power is envisaged in the statute. Counsel relies on a number of authorities which outline the statutory duties of the respondent. In

Doherty v South Dublin County Council and others [2007] IEHC 4, Charleton J. considered whether or not the respondent had failed to

fulfil its legislative duty and stated that:

“The housing authority, however, has obligations only in accordance with its resources and according to the scheme of

priorities set out by it.”

33. The case of Ward v. South Dublin County Council [1996] 3 I.R. 195, related to whether or not the housing authority had a duty to

provide permanent halting sites for families from the travelling community who were assessed as homeless. Laffoy J. stated that:

“It is not the function of this Court to direct a local authority as to how it should deploy its resources or as to the

manner in which it should prioritise the performance of its statutory functions”.

34. In White Maple Developments Limited & Anor. v. Dublin City Council & Anor. [2013] IEHC 83, Hogan J. criticised the respondent for

adopting an indifferent attitude towards its statutory duties under the Planning and Development Act 2000 and emphasised the

importance of the local authority acting in accordance with law –

“. . . I am entitled to draw the inference that the Council found the statutory scheme to be an inconvenient one and it is

unwilling to operate it unless it is actually compelled to do so, whether by legal proceedings or other force of

circumstances. . .

The taxpaying public are entitled to suppose that their applications will be dealt with by the Council in accordance with

law and not by reference to non-statutory schemes which the Council has itself been pleased to create.”

35. In the Supreme Court, decision of Donegan and Gallagher v. Dublin City Council as discussed above, McKechnie J. considered the

respondents role under the Housing Act 1966:

“. . . a housing authority is obliged to provide housing accommodation for several categories of persons who, for

whatever reason, are unable to provide accommodation for themselves. To perform this function it is entrusted with the

responsibility of establishing and maintaining a housing stock and where necessary to improve, increase and upgrade

that, when required. It has many other powers, either mandatory or discretionary, to supplement this core function.

89. An integral requirement in the performance of this responsibility is the establishment of what is termed, a "Scheme

of Letting Priorities", as required by s. 60 of the Act of 1966. Under this provision, such a Scheme, which must be

regularly reviewed, contains the rules by which the housing needs of all persons within its functional area, to whom it

owes a responsibility, are assessed and prioritised. Having completed this exercise, its housing stock is then distributed

and allocated according to the Scheme. . . ”

36. It is submitted that when the Supreme Court in Donegan referred to a necessity “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”, this was in the context

of a case where there is a conflict as to facts, which is distinguishable from the present proceedings. Counsel also pointed out that

the it was stated in Donegan that:

“Article 8 of the Convention affords to every person the right to respect for his private and family life and, as relevant

to this case, his home. This right does not entitle one to a home or to have his housing requirements satisfied by a

public authority. . .”

37. It was submitted that the respondent has established that in reaching its decision, it satisfied all of the requirements of Article 8,

as set out in the authorities relied upon by the applicant, and acted in accordance with law and in a manner necessary in a

democratic society. It was submitted that the respondent has answered the pressing social need of accommodating families according

to the circumstances of each case and by considering each application in a fair, impartial and proportionate way. The respondent

argued that it must act in accordance with statute so that the procedure for the allocation of houses will not be haphazard or unfair

and in order to promote transparency and accountability.

38. Counsel for the respondent submitted that much of the European Court’s jurisprudence as relied upon by the applicant is

irrelevant, because in cases such as Yordanova, Bjedov, and Buckland, the applicants were to be deprived of their home, whereas in

this case, the applicant is simply being moved to alternative, more suitable accommodation, as opposed to being deprived of his

home. It was submitted that the applicant has conflated eviction with the concept of allocation. In Orlic, the Court stated that:

“Moreover, where the State has not shown the necessity of the applicant’s eviction in order to protect its own property

rights, the Court places a strong emphasis on the fact that no interests of other parties are likewise at stake.”

The respondent submitted that in this case other parties’ interests are at stake and the respondent has given reasons for the

necessity to have the applicant moved to alternative accommodation.

39. The respondent contended that they have not fallen foul of the requirements of Article 8 as the decision in this case was made

by an impartial body and because that decision is subject to judicial review proceedings. In Bryan v. United Kingdom it was held that:

“. . . even where an adjudicatory body determining disputes over ‘civil rights and obligations’ does not comply with

Article 6(1) in some respect, no violation of the Convention can be found if the proceedings before that body are

‘subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article

6(1)’.”

It was submitted that since the decision in Meadows this Court can consider proportionality in judicial review proceedings and there is

therefore no breach of Article 8 as adequate procedural safeguards are in place.

40. It is also denied that the respondent’s decision making process failed to have regard to the applicant’s fundamental rights. In

Rawson v. the Minister for Defence [2012] IESC 26, Clarke J. set out the guidelines which must be met to ensure that a decision

made by a public body was lawful and it is submitted that the respondent meets these criteria:

“While the circumstances in which a decision made by a public person or body may be found to be unlawful are varied, it

is possible to give a non-exhaustive account of the principal bases by reference to which such a finding might be made.

First, the decision must be within the power of the person or body concerned. Second, the process leading to the

decision must comply both with fair procedures and with whatever procedural rules may be laid down by law for the

making of the decision concerned. Third, the decision maker must address the correct question or questions which need

to be answered in order to exercise the relevant power and in so doing must have regard to any necessary factors

properly taken into account and must also exclude any considerations not permitted. Fourth, in answering the proper

questions raised and in assessing all matters properly taken into account the decision maker must come to a rational

decision in the sense in which that term is used in the jurisprudence.”

Decision

41. In these proceedings, the applicant seeks to have quashed two decisions of the respondent, the first being the decision

communicated by the letter of 23rd April 2013, which, after a review, upheld the earlier decision of 7th March 2013, to refuse the

applicant succession to the tenancy in 21, Ennis Grove, but which allowed him, or allocated to him, a tenancy in a one-bedroom

dwelling. The second decision impugned is that communicated by a letter of 7th July 2013, refusing an independent review of the

foregoing decision made on 23rd April 2013. Before proceeding into the merits of this dispute, I should deal with the preliminary

objection of the respondent on the grounds of delay. I am quite satisfied that the applicant, having been disappointed by the decision

of 23rd April 2013, was entitled, having regard to his rights under Article 8 of the European Convention on Human Rights and the

jurisprudence of the European Court of Human Rights discussed above, to have sought from the respondent an independent review of

the proportionality of the decision made on 23rd April 2013. That request was finally refused by the letter of 7th July 2013, and these

judicial review proceedings were launched on 15th July 2013, expeditiously and within three months of the refusal of 7th July 2013. I

am quite satisfied that, therefore, there was no delay on the part of the applicant in initiating these proceedings and that objection

by the respondent fails.

42. An aspect of this case which presents no difficulty are the relevant facts which are not in dispute. The applicant has had a long

history of association with 21, Ennis Grove, going back to 1956, when he was 12 years of age and his family took occupation of this

3-bedroomed house, in which his parents were the tenants. In due course, after the death of his father, his mother became the

tenant until her death in 1989. In the meantime, the applicant had been in the United Kingdom from 1962. After the death of his

mother, his sister, Cassandra, succeeded to the tenancy in 1990, and continued to be the tenant until her death in 2012. The

applicant returned from the United Kingdom and took up occupation in 1991, and from then on, was entered on the rent account as

an occupant of the dwelling. Over those years, the uncontested evidence in these proceedings and in the process before the

Allocations Officer, Ms. Conlon, was to the effect that the applicant’s sister was a person with disabilities and it fell to the applicant

to look after the tenancy, including ensuring the payment of the rent from 1991 onwards.

43. The applicant is now approaching 70 years of age, and according to the evidence from his GP supplied in the process before the

Allocations Officer and exhibited in these proceedings, he is in poor health, suffering from a variety of significant ailments. The opinion

of his GP is that his mental and physical health will be seriously affected if he is compelled to leave his home at 21, Ennis Grove.

44. On the other hand, there are the undisputed facts put forward by the respondent, namely, that within the area where this house

is located, there are in excess of 1,400 persons eligible for and seeking accommodation from the respondent as the local housing

authority, of whom 134 are seeking a 3-bedroomed house.

45. There can be no doubt that the officials of the respondent, namely, Mr. Bregazzi, in the first instance, and Ms. Conlon, who

conducted the review, resulting in her decision of 23rd April 2013, had a difficult decision to make. On the one hand, there were

powerful factors underpinning the applicant’s claim to remain on in this 3-bedroomed house. On the other hand, in staying on in this

house, which had more accommodation than he needed, a family needing 3-bedroom accommodation would have to be denied that

opportunity for as long as the applicant remained in occupation of this house.

46. Notwithstanding the fact that the respondent offered the applicant a one-bedroom flat in Shepherd’s Bush Court, which is in

reasonably close proximity to 21, Ennis Grove, I have no doubt that 21, Ennis Grove has been, at all material times, the applicant’s

“home” within the meaning of Article 8 of the European Convention on Human Rights. Indeed, there was no serious contest on this

issue in the proceedings. Again, notwithstanding the offer of new and suitable accommodation to the applicant, the refusal of the

tenancy in 21, Ennis Grove to him, because of the fact that this house was his home for such a long time, that refusal was, in my

opinion, an “interference” with the applicant’s rights in respect of 21, Ennis Grove as his home, as envisaged by Article 8 of the

Convention and the jurisprudence deriving therefrom.

47. What this has meant was that the applicant was entitled, by virtue of the judgments of the ECHR in the cases of McCann v. the

United Kingdom, Yordanova v. Bulgaria, Buckland v. the United Kingdom and Djedov v. Croatia, to have the proportionality of that

decision determined by an independent Tribunal in light of the relevant principles under Article 8. The United Kingdom Supreme Court,

in the case of Manchester City Council v. Pinnock [2011] 2 A.C. 104, having reviewed the jurisprudence of the ECHR, concluded that

the ECHR case law established 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 light of Article 8, even if his right of occupation under domestic law has come to an end”.

48. The Supreme Court, in the cases of Donegan and Gallagher v. Dublin City Council, whilst, in those cases, dealing with disputed

questions of facts, nonetheless per the judgment of McKechnie J. in summarising the requisites of compliance with Article 8, included

having the issue considered against the measure to determine its proportionality.

49. I am quite satisfied that the overwhelming weight of the jurisprudence emanating from the ECHR and from the United Kingdom

Supreme Court and our Supreme Court, albeit, on an obiter basis, requires that where a person is to be deprived of their home, within

the meaning of Article 8, they are entitled to have the proportionality of that decision determined by an independent Tribunal. In the

case of Webster v. Dun Laoghaire Rathdown County Council [2013] IEHC 190, Hedigan J. anticipated the establishment of such a

proposition where he said:

“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.”

50. The question which arises here is whether the review carried out by Ms. Conlon could be considered to have about it the

necessary character of impartiality and independence to satisfy the procedural safeguards required by Article 8. Before going on to

consider that question, I would observe that for the purposes of making her decision, there can be no doubt, and there is no

complaint in this regard but that the applicant was given an ample opportunity to place before the decision maker i.e. Ms. Conlon, all

relevant material which he wished to have considered, and this he did in the form of a well-written, lengthy letter to which he

attached a letter from his GP, Dr. Ryan. Thus, Ms. Conlon had before her all of the relevant material so far as the applicant’s side of

the story was concerned. In addition, she was obliged, not just to consider it, but to formulate her decision within the confines of the

relevant paragraph of the Allocations Scheme which applied to the applicant’s circumstances and which required her to consider

whether the dwelling size was appropriate to the applicant’s needs.

51. Thus, Ms. Conlon had before her all of the relevant material for the purposes of making a reasonable and proportionate decision

and there is no evidence of her decision being in way contaminated by any irrelevant or impermissible material.

52. Having regard to the weighty factors favouring either potential choice, and having regard to the necessity to balance these and

to then make the difficult decision to either allow or refuse succession to the tenancy in 21, Ennis Grove to the applicant, it cannot,

in my view, be said that in making the choice that she made, that Ms. Conlon did anything other than scrupulously observe the

principle of proportionality.

53. That, notwithstanding, does not answer the question of whether or not the exercise that she undertook in reviewing the decision

made by Mr. Bregazzi, could be said to have about it the necessary character of independence required as a safeguard by Article 8.

In my view, the clear thrust of all of the jurisprudence establishes that a housing authority, in these circumstances, cannot be the

“independent Tribunal” for the purpose of making a determination on the proportionality issue in these circumstances. Thus, while, in

my opinion, Ms. Conlon carried out her task well, the simple reality is that she did not have or should not have had jurisdiction in the

first place to embark upon this task. That should have been left to another body, independent of the respondent.

54. Against this, the respondent says that the Housing Acts, construed in accordance with s. 2 of the Act of 2003, do not permit the

respondent to delegate to any Tribunal, independent of it, the function of determining any question with regard to the allocation of

housing in accordance with the Allocation Scheme. If the respondent was correct in this submission, it might be said that this could

lead to a declaration of incompatibility between relevant parts of the Housing Acts and Article 8 of the Convention. However, in light

of the decision of the Supreme Court in the Meadows case, in circumstances where no other independent Tribunal has the jurisdiction

to determine the issue of proportionality in these kind of circumstances, this Court, on a judicial review application, must undertake

that exercise. The necessary consequence of this Court exercising that jurisdiction is that, without any doubt, the procedural

safeguards required under Article 8 of the Convention are in place and there cannot be said to be a breach of Article 8 on that

ground, or, furthermore, on the ground specifically raised in these proceedings that the review carried out by Ms. Conlon was not an

independent review, nor did the refusal by the respondent in the letter of 7th July 2013, of an independent review, breach Article 8.

55. In light of the judgments of the Supreme Court in Meadows, it now falls to me to determine the issue of proportionality as that

was discussed in the judgment in the Meadows case and also by Hedigan J. in McSorley v. The Minister for Education and Skills

[2012] IEHC 201.

56. In that context, it would seem to me that what I have to do, having regard to what has been described in the words of Henchy J.

as the “implied constitutional limitation of jurisdiction”, is to consider whether or not the decision made in this case by Ms. Conlon

was proportionate to the objective to be achieved, and if disproportionate, to set it aside.

57. All of the relevant material was before Ms. Conlon and, I am satisfied, considered by her, and in the balancing exercise she was

required to do, she had to make a decision which was either favourable to the applicant or adverse to him. There was no middle

ground, although in this context, the fact that a one-bedroom apartment was offered to the applicant, in close proximity to 21, Ennis

Grove, ensured that in the decisions that were made, the respondent was fulfilling its obligation to the applicant to provide him with

suitable housing, whilst at the same time, accommodating the needs of a family requiring a 3-bedroomed house. I am quite satisfied

that the decision that was made by Ms. Conlon, as reflected in her letter of 23rd April 2013, was not in any sense disproportionate. I

am also satisfied that the correct application of the proportionality principle in this case also means that there has been no breach of

the applicant’s rights under Article 40.5 of Bunreacht na hÉireann.

58. In these circumstances, therefore, I will not interfere with Ms. Conlon’s decision and I must refuse the relief which is sought in

these judicial review proceedings.