The High Court quashed Dublin City Council’s decision to use statutory powers to have Mark Kelly removed from a Ballymun house, finding that he had not been given a chance to respond to allegations of anti-social behaviour before the decision was made.
Mr Justice Michael Peart said on 2 March 2012 that the Council’s decision was ultra vires in the circumstances and failed to respect procedural fairness and due process. He also found that the Council had failed to have reasonable regard to Kelly’s asserted rights relating to his home and private and family life.
The case concerned the Council’s use of section 20 of the Housing (Miscellaneous Provisions) Act 1997. Gardaí directed Kelly to leave the house on 2 December 2011, and it was secured with steel shutters. The Council considered him to be occupying the property without a tenancy after the death of his aunt, the tenant. It relied on complaints including parties, noise, threats, intimidation and drug-taking.
Kelly said he had lived at the house for years, apart from brief periods away, and believed he could apply to succeed to his aunt’s tenancy. He challenged the eviction process, saying he had received no warning and had no opportunity to answer the complaints or explain his connection to the house. The Council disputed his account of his residence and argued that its records supported its view that he had no lawful basis to remain.
The judge said there were doubts about when the Council received the complaints and whether they preceded its decision to invoke section 20. The allegations in evidence were largely unspecific, and the court could not treat them as irrefutable proof of anti-social behaviour. Even if Kelly had been a trespasser after the tenancy ended, the Council had to put the allegations to him in time for him to answer before proceeding with the removal.
The court quashed the decision to invoke section 20 and declared it ultra vires in the circumstances. It did not find as a fact that the house was Kelly’s home, and the ruling did not determine whether he was entitled to succeed to the tenancy. His succession application remained pending and had to be considered fairly under the normal procedures and criteria.
The court refused a mandatory injunction that would have allowed Kelly to resume living at the property. The judge said he had no lawful entitlement to reside there unless the Council granted his succession application. The court was to hear the parties on the precise terms of its order.