Monday, 18 February 2008

Attempt to force council to act over house fails

A local authority cannot be compelled to take action under the Derelict Sites Act 1990 in relation to a house in a derelict condition

Title: Hussey & anor -v- Dublin City Council

HIGH COURT

Judgment was given by Mr Justice O'Higgins on January 14th, 2008.

JUDGMENT

A local authority cannot be compelled to take action under the Derelict Sites Act 1990 in relation to a house in a derelict condition, even if it could become dangerous in the future and cause significant problems for neighbouring properties.

BACKGROUND

The case was taken by some of the owners of Nos 17 and 21 Northumberland Road, Dublin, to force Dublin City Council to take action under Section 10 of the Derelict Sites Act 1990 regarding the condition of No 19 Northumberland Road, which lies between Nos 17 and 21.

All three houses are listed, though this was not a major feature of the case.

Section 10 of the Act states that it shall be the duty of a local authority to take all reasonable steps, including the exercise of statutory powers, to ensure that land in its area does not become, or continue to be, a derelict site. This is defined as any land which detracts to a material degree from the amenity, character or appearance of land in the neighbourhood.

The dispute arose out of the failure of the owners of No 19 Northumberland Road to maintain the premises.

The house is the subject of an unresolved legal dispute between members of the King family. It became vacant when its then occupant, Cecil King, died in 2003. In October of that year it was damaged by fire caused by trespassers.

It continued to deteriorate and there were a number of attempts to break into it.

The applicants first drew the attention of the city council to the state of the house in 2001, asking it to intervene, particularly in the light of the architectural heritage of the three protected houses. Further correspondence took place in 2005, during which one of the applicants indicated that proceedings would be instituted if nothing was done.

The council's dangerous buildings department visited the house, and as a result the King family replaced four windows destroyed in the fire. However, the applicants maintained that the respondent did not appreciate the urgency or seriousness of the situation, and was not doing anything further.

It was not disputed that the house was "dilapidated, run down, neglected and in very poor condition internally and in urgent need of refurbishment". It was also conceded by the council that it was in a "derelict condition", but not that it was a "derelict site" within the meaning of Section 3 of the Act.

An affidavit from an engineer for the applicants stated that wet and dry rot were extremely active throughout the building; that it was attacked by insects such as weevil and woodworm and that it was vitally important not only for the well-being of the building in question, but of the adjacent building, No 17, that urgent control measures be put in place to stop water getting in.

Expert witnesses for the applicants and the respondents disagreed on whether the building was dangerous.

Mr Justice O'Higgins said the issue was whether it was the responsibility of the council to prevent the ingress of water and the spread of rot.

DECISION

"I consider that the duties imposed by S. 10 of the Derelict Sites Act are expressed in clear and unambiguous terms and the question for determination by the court is whether the respondent has been shown to have neglected to perform that duty, and whether the court should compel it to do so by order of mandamus," he said.

He said that inspections had been carried out on 10 occasions from 2005; that notices were served under S. 8 (2) of the Act, notifying the proprietors of intention to visit the affected property; that four windows had been replaced as a result, following which the council maintained the building had been rendered non-derelict; it had also been examined by the Dangerous Building section of the city council and propping works were carried out.

The Act refers to "land in the neighbourhood," he said, and "it would be unduly strained and artificial to describe the presence of damp and ingress of water and future danger of spread of rot as matters detracting or likely to detract from the amenity character or appearance of land in the neighbourhood".

There was nothing in the Act to suggest that it intended to impose a duty on the council to exercise the duties of the owners of the premises.

The Act allowed the council to serve notice on the person appearing to be the owner of premises calling on them to take action to remedy the situation. Only if they failed to do so could the local authority take action itself, he said.

Under the Local Government (Sanitary Services) Act 1964 the council had powers in relation to dangerous buildings. If a building was dangerous the court could order the council to serve notice on the owner or occupier, but it would be wrong for the court to act on the presumption that there would be non-compliance with that notice.

He said that if the premises continued to be totally neglected it probably will at some future date become dangerous, but it would be inappropriate to grant a mandatory injunction on the assumption that the respondent, who is already monitoring the situation and who had already taken action, would not do so in the future.

"The building, although in a rundown and seriously neglected condition, is not a 'derelict site' within the meaning of S. 3 of the Derelict Sites Act. It is not open to me to find that it is a dangerous building. It follows that the respondents are not in default of any of their obligations under S. 10 of the Act. This application must, therefore, fail," he concluded.

The full judgment is available on www.courts.ie

Solicitors: Hussey Fraser, Northumberland Road, Dublin (for the applicants)

The Irish Times

www.buckplanning.ie

1 comment:

john o'donnell said...

Very helpful summary.

I wonder how many local authorities
use the DSAct1990



John O'Donnell
Cork