H344
BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
High Court of Ireland Decisions |
||
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Sfar -v- Louth County Council & Ors [2007] IEHC 344 (22 October 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H344.html Cite as: [2007] IEHC 344 |
[New search] [Help]
Judgment Title: Sfar -v- Louth County Council & Ors Composition of Court: Murphy J. Judgment by: Murphy J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 344 THE HIGH COURT JUDICIAL REVIEW RECORD No. 2007 246 J.R.; 2007 370 J.R.; 2007 485 J.R.; 2007 486 J.R. DONA SFAR APPLICANT AND LOUTH COUNTY COUNCIL, MINISTER FOR THE ENVIRONMENT, ATTORNEY GENERAL AND IRELAND RESPONDENTS IN 2007 246 J.R. LOUTH COUNTY COUNCIL, GARDA COMMISSIONER, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL, IRELAND RESPONDENTS IN 2007 370 J.R. THE MINISTER FOR AGRICULTURE AND FOOD, LOUTH COUNTY COUNCIL, THE STATE OF IRELAND AND THE ATTORNEY GENERAL RESPONDENTS IN 2007 485 J.R. LOUTH COUNTY COUNCIL, STATE OF IRELAND, GARDA COMMISSIONER, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL RESPONDENTS IN 2007 486 J.R. Judgment of Mr. Justice Roderick Murphy dated the 22nd day of October, 2007. 1. Judicial review applications These overlapping judicial review applications have Louth County Council as the common respondent and seek similar reliefs against the Minister for Justice, the Minister for Agriculture and Food, the Garda Commissioner, Attorney General and Ireland. The applicant, who represented herself, seeks declarations, injunctions and mandamus in relation to the seizure of the applicant’s dogs and other animals. In the first matter, [2007] 246 J.R., the applicant obtained leave from O’Neill J. on 8th March, 2007 for judicial review as against Louth County Council, the first named respondent only, for (i) a declaration that seizure of the applicant’s dogs by the first named respondent was unlawful (ii) an injunction restraining the first named respondent from disposing of the animals seized by the dog warden on the grounds set forth in the statement The order provided that the first named respondent be restrained until the determination of the application for judicial review or until further order or until the injunction shall have lapsed by reason of the applicant’s failure to serve an originating notice of motion herein within the proper time for disposing of all of the animals seized by the dog warden. In the second matter, [2007] 370 J.R., the applicant on11th April, 2007, obtained an injunction from de Valera J. that the respondents be restrained until after the 3rd May, 2007 or until further order in the meantime from destroying the two dogs seized from the applicant’s premises at Balrigan, Kilcurry, on 9th March, 2007 and the ten dogs seized from the applicant’s residence at Balrigan, Kilcurry on 4th April, 2007. No application was made for leave for judicial review. In the third matter, [2007] 485 J.R., 14th May, 2007, Peart J. gave leave to apply by way of application for judicial review for the reliefs for:
A declaration that the above particular animals are excluded from the provisions of the European Communities (Protection of Animals kept for farming purposes) Regulations, 2006 and that the Department of Agriculture exceeded [its] legal authority by seizing the above animals under the above Regulations. In the fourth matter, [2007] 486 J.R. on the same date, 14th May, 2007, Peart J. also gave leave to apply by way of application for judicial review for the following reliefs:
The statements of opposition deny that the seizure of the applicant’s dogs was unlawful; that they were seized pursuant to the powers conferred by s. 16(1)(b) of the Control of Dogs Act, 1986 which seizure was entered on the register of dogs maintained under s. 14 of the Act. In relation to the second matter, notwithstanding that the only relief obtained was injunctive relief and not leave for judicial review, Louth County Council (the Council) filed a statement of opposition that the seizure was pursuant to powers conferred by s. 11(1) of the Control of Dogs Act, 1986. The court invited the applicant to make an application for leave for judicial review. Such application was made and leave was ordered in terms of the leave granted in the fourth matter, [2007] 486 J.R., and, when made, to grant such a leave in order that all matters be before the court. In the third matter, 2007 485 J.R., the statement of opposition of the Council pleaded that the application was misconceived and that the respondent did not seize three or any of the applicant’s rare breed pigs nor five or any of the applicant’s miniature pet goats on 18th April, 2007 or at any time. The statement of opposition of the State parties is that the applicant was not entitled to the order directing the return of any of her animals seized by the State parties on the grounds alleged or at all, nor of disposing of the animals and that the applicant was not entitled to the declaratory relief, damages, certiorari or mandamus. It was further denied that seizure of the goats and pigs was unlawful or that the animals seized were excluded from the provisions of Statutory Instrument No. 705 of 2006 EC (Protection of Animals kept for farming purposes) Regulations, 2006. A number of pigs and goats were removed from the premises under the Regulations, to be brought to safe places of custody to reside with third parties. 2. Affidavits The court considered the three extensive verifying affidavits which largely consisted of legal submissions, the replying affidavits of the officers of the respondents and further many affidavits of the applicant and the respondents. Three issues arose for determination of the court, the definition of “dwelling”; of “animals kept for farming purposes”; findings of fact relating to the seizure of animals and the allegations of mala fides. 3. Dwelling 3.1 The first issue was whether the respondent in the first, second and fourth matter were entitled to enter the applicant’s premises at Balrigan, Kilcurry and at 129 Oaklawns, Dundalk and to seize the applicant’s dogs. The applicant’s evidence was that the dog warden employed by the Council entered her premises yard and outhouses (including a boiler house) at Kilcurry which formed part of her dwelling. The warden also entered her premises but did not enter any outhouses at 129 Oaklands where the applicant resides, which premises were part of her dwelling. The applicant’s evidence was that she occasionally resides at Kilcurry which she uses as a retreat. An ESB bill was produced which showed one unit used for the billing period. Her address for the purpose of the proceedings was given as 8 Kilbroney Vally, Rostrevor, County Down in relation to the first two matters and 129 Oaklands, Dundalk in relation to the third and fourth matters. Garda Barbara Bracken gave evidence that there was no sign of human habitation at the house at Kilcurry which appeared to have been inhabited by dogs and to be run down. Garda Bracken did not believe that the applicant resided there. She exhibited a sketch of the premises at Balrigan, Kilcurry. 3.2 The Control of Dogs Act, 1986 (No. 32 of 1986) does not include the term “dwelling” in the interpretation section (section 1). It does define “occupier” as a person who owns and occupies, as well as a person who occupies only, any premises … Section 16, which empowers a dog warden where he has reasonable grounds for believing that a person is committing, or has committed, an offence under the Act or under any regulation or bye-law made thereunder, may seize any dog and detain it in order to ascertain whether an offence under the Act is being committed or has been committed and may enter any premises (other than a dwelling) for the purpose of such seizure and detention. Premises includes any house or land (section 1 of the Act). Any premises (other than a dwelling), accordingly, includes any house that is not used as a dwelling. 3.3 The words “dwell” and “dwelling” are defined in several statutory provisions and, as such, are included in legal dictionaries. The applicant referred to the definition of “dwelling” in Mozley and Whiteley’s Law Dictionary (12th edition) (2001) which states:
Butterworth’s: Words and Phrases Legally Defined (3rd edition, 1989) deals with English statutory definitions of dwelling house and dwelling and, indeed, as a wide definition under the Housing Acts corresponding to the definitions referred to in the above dictionaries. The dictionary definition of “dwelling” (from the verb “dwellan” to “lead astray” and later “to be delayed”,) is not particularly helpful in relation to the general inviolability of a person’s dwelling or the specific limitations of the dog warden powers in s. 16 in particular. We must accordingly look at judicial considerations of the term. 3.4 However, apart from statutory definitions the courts have held that to “dwell” and “dwelling” are expressions nearly but not quite, equivalent to reside, residence. To “dwell” connotes, more definitely than “reside”, where a person lives and sleeps (see Pollock CB, AG v. McLean 1H&C 761. See also Campbell v. O’Sullivan [1947] SASR 195 at 201, 206 cited in Stroud “Judicial Dictionary of Words and Phrases (6th edition), 2000). Butterworth’s cites Bovill C.J. in Thompson v. Ward, Ellis v. Burch [1871] LR 6 CP 327 at 358, 359, citing Lord Cooke in relation to burglary:
“By a ‘dwelling house’ I understand a house in which people live or which is physically capable of being used for human habitation.” It is established that a person may “dwell” in two or more places (Butler v. Ablewhite, 28 LJCP, 292). A person can, however, scarcely be said to “dwell” in his place of business (Kerr v. Haynes, 29 LJQB 70 and Shields v. Rait, 18 LJCP 120). The word “dwelling” was held in Rukwira v. D.P.P. [1993] Crim. LR 882 to connote those areas which lay behind closed doors, and did not include common landings which were merely means of access to the dwelling. There is further authority that a house does not become a dwelling house until some person dwells in it; that a structure in which people live or which is physically capable of being used for human habitation is a dwelling house. 3.5 The constitutional protection of dwellings was considered in The People (Attorney General) v. O’Brien in the context of forceable entry where Walsh J. states:
3.6 The judicial definitions are narrower than conveyancing, tenancy and, indeed Revenue definitions. They are, of course, not affected by the statute in which they are defined. It is clear that the words “dwelling” and “dwelling house” may be used in different senses. The People (Attorney General) v. O’Brien assumes but does not define what a dwelling is. Lord Justice Black in Belfast Corporation v. Kelso [1953] N.I. 160 at 163 states that it is not difficult to see that the word “dwelling house” may be used in different senses and different connections. Thus, we may speak of a garden attached to or surrounding a dwelling house. In this sense by “dwelling house” we mean only the dwelling house itself, the actual bricks and mortar. On the other hand, a conveyance or a devise of a dwelling house will normally be construed as including all the land within the curtilage of the house. It would appear to this Court that the word “dwelling” in s. 16 of the Control of Dogs Act, 1986 must be construed in the narrow sense as protecting a house where people live and cannot be deemed to extend to outhouses or boiler houses, particularly where they are not capable of being accessed through the house, nor to the curtilage. It is a contradiction in terms to say that a place where animals, farm or domestic, are housed can be a dwelling where people live, whether permanently or temporarily. 3.7 The court was asked by the respondents to view a video tape taken by officers of the respondents in relation to the seizure of the dogs. I understand that a second video was available in relation to the seizure of other animals. The applicant objected to the admissibility of such evidence, notwithstanding that it was referred to in the respondent’s affidavits. Two issues were raised by the applicant: the video showed the premises in a bad light and were of the dwelling and its curtilage and, accordingly, a vitiation of her rights. Having heard the submissions of both parties in relation to the admissibility of the video which seemed relevant to the issue of the extent of the dwelling itself, it was agreed that it should be viewed without prejudice as to its ultimate admissibility to determine the extent of the premises and the position of the dwelling house thereon. The court took into account the statement of the applicant in relation to the extent of rain and mud immediately prior to taking of the video. The video was played uninterrupted and appeared to last some 40 to 50 minutes. The first part (perhaps some 10 minutes) had no audible soundtrack and showed goats and sheep, a paddock and a pond. It appeared to be rough, poor land. There was a former plastic tunnel-type shelter, enclosed areas, some out-houses and an open trailer on the land. Several dogs were shown in a muddy enclosed yard. There was no food or waster visible and the animals when watered drank enthusiastically. At that stage the soundtrack could be heard in relation to the remarks of the several officers who described the condition of the dogs and in particular the wound on the left hank of a Dalmation dog. A grey-white cairn terrier appeared frightened. A white dog stood in the shed behind the green tank. The court was able to ascertain a white out-house, part stone, part block work, with a galvanised roof and a door closed where two or three dogs appeared to be housed. The floor was covered with what appeared to be rubbish. It was not possible to ascertain whether there was any food or water. The dogs, when watered, also drank enthusiastically. When opened, it appeared that this was a boiler house and from subsequent parts of the video it appeared to correspond to the sketch exhibited in the affidavit of Garda Bracken as a separate building from the main house. Two-third ways through the video the camera focused on the windows of that house for a short period of seconds rather than minutes. It appears to this Court that, on the assumption that this was the dwelling house, that this part of the video should be excluded from the evidence. The video then showed three pigs with a dog standing nearby. The paved or concreted ground was muddy. There were no visible drains. A number of kennels were identified and letters ascribed to them. Some of the dogs were caught and identified. Towards the end of the video the house could be seen and somebody said “This is the dwelling” and that it was not secure. The video did not show anyone entering the house. The house appeared with a galvanised roof and an extension. The last view of the video, taken some 30m. away from a rough, muddy laneway, showed its named as “Slí an tSionaigh”. 3.8 I accept the evidence from the affidavits that the respondents did not enter the dwelling but did enter the boiler house and, indeed, other enclosed areas and the yard and paddock in which animals were kept. The applicant has asserted that this was her dwelling in addition to her Dundalk home in relation to which other dogs were seized on a different date. The uncontroverted evidence of the ESB bill exhibited by the applicant showed that only one unit of electricity had been used over what appeared to be a two-month billing period. As the court excludes the evidence in relation to the house it is not possible to conclude that it was used as a dwelling. However, the applicant asserts that the house was used occasionally. Garda Bracken gave evidence that there were signs of human habitation. The court cannot determine whether or not it was a dwelling. The court accepts that a person may dwell in two or more places (Butler v. Ablewhile, 28 LJCP, 292). Even if the house were to be considered as an occasional dwelling, as averred in the applicant’s affidavit, the court finds that no entry made upon it, nor were there any animals removed from the applicant’s dwelling. 3.9 In the absence of a statutory definition it seems clear to me that the word “dwelling” in s. 16 of the Act does not include the curtilage or out offices. 3.10 The court is also satisfied that, on the admission of the applicant herself, that there was an issue in relation to dog licences which I understand is the subject of separate proceedings. Indeed, it would appear from the applicant’s extensive affidavits that there have been and are several other judicial review application in relation to the seizure of the applicant’s animals. 3.11 The court, having regard to the evidence, concludes that the powers of the dog wardens were exercised within jurisdiction; that the dog warden did not enter the dwelling at Kilcurry; that no evidence was given in relation to Oaklands to that effect; that he was entitled to bring with him into the premises such other persons as he believed to be necessary for the purpose of assisting him in the exercise of his powers and functions. 4. Animals kept for farming purposes The second issue arising in relation to the definition of animals kept for farming purposes. The applicant claims that the pigs and goats were excluded from the provisions of the European Communities Protection of Animals kept for Farming Purposes Regulations, 2006 (the 2006 Regulations). The Regulations impose an obligation on persons to ensure the welfare of animals. Regulation 6 provides that, if an authorised officer has reasonable cause to suspect that an offence is being or has been committed under the Regulations, he may search the premises, photograph or otherwise record an animal as he sees fit. As in the Control of Dogs Act, 1986, Regulation 6(2) provides that an authorised officer should not enter a dwelling. To do so he needs to obtain a search warrant under Regulation 7. I am satisfied that the officer did not enter the dwelling at Kilcurry. The applicant claims that her pigs and goats are excluded from the provisions of the 2006 Regulations. She says in her affidavit that either her animals are pets or that they are “intended for showing”. “Animals” under the provisions of Regulation 2 is to mean “any animal … bred or kept for the production of food, wool, skin or fur or for other farming purposes” as is the definition in the Directive 98/58/EC of 20th July, 1998. It is clear from the very title of the Regulations that its purpose is to protect animals kept for farming purposes. The court accepts that the animals were in and around farm outbuildings and grazing (albeit on poor, rough ground). The applicant describes herself as a farmer and as a hobby farmer in her several affidavits. The applicant’s affidavit refers to the breeding of the pigs and selling the offspring to open farms or zoos. The goats were used to train her sheep dogs when the sheep were in lamb. Significantly, in her letter to the Department of Agriculture, she requests that they send her “flock registers for my sheep, goats and pigs”. She refers, in that letter, to “farm dogs” which she said she uses to “manage my farm animals”. In her affidavit sworn on 29th August, 2007 she describes her plan to “redevelop a strain of Oxford Forest as my pigs had all the suitable genes”. An exhibit to that affidavit refers to the Tamworth pigs which describes then “primarily as bacon pigs, because of their long sides and relatively lean meat, but they make excellent pork too”. In Lowe (Inspector of Taxes) v. Ashmore (J.W.) Ltd. [1971] 1 All E.R. 1057 at 1065, Megarry J., in the context of the Income and Corporation Tax Acts assumed that the word “farming” means farming in the sense of the carrying on of activities appropriate to land recognisable as farm land. It must at least include “the raising of beef, the cultivation of lands and the growing of crops …”. Several other pronouncements refer to participation in the cultivation of land or the raising of stock for profit. It seems to this Court that to the limited extent that the applicant is involved in the keeping and raising of pigs and goats and sheep with a view to breeding and selling, that this involves farming. It does not appear to me that, even if there were evidence of showing these animals, that this factor would exclude the animals from farming purposes. What appears to be clear from the veterinary reports, the affidavits and, indeed, the video, that these animals are not kept as pets, domestic or otherwise and were unlikely in a condition, at that time, to be exhibited. The court finds that animals seized, other than the dogs, were animals kept for farming purposes. It seems, accordingly, that the provisions of the Regulations apply. 5. The seizure of the animals The affidavit evidence of Mr. Brendan Smith, Superintendent Veterinary Officer of the Department of Agriculture referred to a telephone call from a neighbour of the applicant in May, 2006 regarding the welfare of the applicant’s animals. Two officers of the Department visited in June, 2006 and found goats tied up with no access to water and noted the decomposing carcasses of four sheep. The applicant was informed of her responsibility. In February, 2007 a further complaint in writing was received in relation to the escape of the applicant’s animals, damage caused and neglect of the animals. Mr. Smith says he visited the premises on 7th February with another officer and saw several carcasses, no available grass and no available waster in one of the paddocks. Animals were hungry but not starving. Dogs had no available water. He issued a notice requesting the applicant to dispose of the carcasses. On 5th March, 2007, following a request from the Louth Society of Cruelty to Animals, he and others inspected and seized a number of dogs from Kilcurry. On 6th March the applicant phoned to say that Mr. Kyran Kane, Veterinary Inspector of the Department, visited the premises a week later on 14th March, 2007 and found the condition of the pigs, goats and remaining dogs to be of concern and served notices by registered post on the applicant. While on 23rd March the condition of the animals had improved, on 12th April he found that the pigs had broken out and the goats had inadequate food and water. On 18th April the pigs and goats were seized. Mr. McGuinness, MVB, MRCVS, an independent vet. referred to the removal of ten dogs in the possession of the applicant, whose condition was extremely unacceptable. One was emaciated with sores on its tail. All dogs removed were severely substandard, bordering on malnutrition. The applicant exhibited two reports from Brian Jones MVB, MRCVS, of ANCU Veterinary Hospital, Newry, County Down, of 28th March, 2007 before the dogs were seized and on 12th September, 2007 in respect of an inspection on 23rd May, 2007, over a month after seizure. In his first short typewritten report he said that he had examined five specified dogs and found that “these animals were found to be fit and healthy and free from external parasites”. In his second two-page manuscript letter signed by him he said that on 23rd May, 2007 he examined the dogs that were present on his initial visit (but were then some five weeks with a third party) and “found them to be fit and healthy. They appeared to have put on condition, especially the Dalmation cross dog”. He said that he examined a further ten dogs that were not present on his first visit. Some appeared healthy and “some of the dogs were subdued, especially a cross-bred female who was underweight”. The second page stated that “overall the dogs were in good condition in my opinion”. Mr. Jones had examined five dogs some two weeks before dogs were seized. The same dogs had “put on condition” especially the Dalmation, almost two months later. He had no examined the other dogs. I accept Mr. Jones’s evidence. A letter from Mr. Jones, the applicant’s veterinary surgeon, dated 15th October, 2007 which was received by the Registrar yesterday, 18th October, 2007 over a week after the hearing, was not put in evidence either on affidavit or otherwise. Mr. Jones merely states that he examined the dogs on 28th March and 18th May, 2007 in the presence of Ms. Fiona Squibbs of the Society of the Prevention of Cruelty to Animals, and Garda Bracken. The court accepts the evidence of the respondents’ veterinary surgeons regarding the physical state, health, well-being and nourishment of the animals seized at the time of seizure. The video evidence does not persuade the court to the contrary. 6. Allegations of mala fides The applicant makes many allegations that the officers of the respondents acted in bad faith towards her or held a grudge against her. In relation to the second application (2007 370 J.R.) these occur in the affidavit of 10th April, 2007 and, more extensively, in the applicant’s affidavit of 29th August last. In relation to the third set of proceedings, the applicant accuses Garda Bracken of harbouring a grudge against her as evidenced by Garda Bracken accusing her at her work place. Garda Bracken avers that she did not mention the criminal case brought against the applicant in the presence of her work colleagues as alleged. The applicant alleges that the Department veterinary surgeon and the independent veterinary surgeon used by the Gardaí were mistaken in their evidence. Her veterinary surgeon, who saw the animals some weeks later, described them as in good condition. The court accepts that the dogs’ condition was likely to have improved from the position shown in the video in the weeks following their seizure, having been treated for parasites and fed to increase their weight at the time they were examined by the applicant’s veterinary surgeon. Mr. Keane, former veterinary inspector, said that he had contacted the applicant by telephone at work on three occasions and that this contact was made to alert the applicant to the serious breaches of animal welfare legislation on her holding at Balrigan. He said that he acted at all times in a professional and courteous manner in his dealing with her and rejected any suggestions that he acted mala fides. Mr. Brendan Smith, Superintendent Veterinary Officer at the Department of Agriculture, said that the applicant had listed her work number as a point of contact on an application for a sheep flock number and on letters she had sent to Mr. Smith’s department. Both he and Mr. Keane had acted at all times in a professional and courteous manner in his dealings with her. The court is concerned regarding the allegations of the applicant in relation to mala fides and bias as against the respondents’ officials and veterinary surgeons. These allegations are denied. They lack the degree of specificity that are required to make such serious allegations. There seems to this Court to be no evidential basis for the allegations. The court is also concerned with the number of appeals and judicial review applications initiated from 1999 to 2007 by the applicant in relation to her animals and to which she refers in her affidavits. The court has had difficulty in disentangling the four cases before it without having to understand the other proceedings to which the applicant refers. Moreover, it would seem to be an abuse of process to seek four judicial reviews against the Council where one would suffice and to involve other parties in respect of whom no relief is sought. While a litigant is entitled to have access to the courts such entitlement should not be abused. 7. Conclusion For the reasons given above, it seems to me that the applicant has not made a sufficiently cogent case to justify the court making the orders requested. |