The Supreme Court has dismissed Dublin City Council’s appeal against a ruling that it failed to follow fair procedures before using statutory powers to remove Mark Kelly from a council house in Ballymun in 2011.
The judgment, delivered by Mr Justice William M. McKechnie on 29 May 2019, concerned the Council’s use of section 20 of the Housing (Miscellaneous Provisions) Act 1997. The provision allowed gardaí, following notification from a housing authority, to direct certain occupants to leave immediately where the authority believed they had engaged in anti-social behaviour and removal was necessary for good estate management.
The Council relied on complaints alleging drug dealing, drug use and wild parties at 17 Marewood Drive. The complainants’ names were redacted in the records described in the judgment. On 30 November 2011, the Council asked gardaí to use the section. Council officials and gardaí attended the house on 2 December. No one was there when they arrived; the Council entered and secured the property. Kelly returned during the operation, was told the legal basis for it and was allowed to collect personal belongings.
Kelly challenged the removal by judicial review. In 2012, the High Court quashed the Council’s decision to invoke section 20, declared it ultra vires in the circumstances and found that Kelly had been denied an opportunity to respond to the complaints. The Council appealed.
The Supreme Court did not decide whether the house was Kelly’s home for the purposes of Article 8 of the European Convention on Human Rights. McKechnie J said the evidence did not satisfy him that Kelly had established the necessary connection to the house for Article 8 rights to be engaged. The Court also did not decide whether Kelly was entitled to succeed to the tenancy; that question was separate from the appeal.
The Court accepted that Kelly had no right to occupy the property and that Council records showed no prior connection to it. It nevertheless held that section 20’s serious consequences—including immediate removal and possible criminal penalties for failing to comply—required some engagement with him before the power was used. Given the circumstances, an informal process would have been sufficient: the Council should have told him the basic information it held and allowed him to respond. That did not happen.
The Court therefore upheld the High Court on the fair-procedures issue and dismissed the appeal. It also held that Dublin City Council was correctly named as a respondent; it did not need to decide whether gardaí might be respondents in other circumstances.