A 1947 law could be used to tackle lockdown house parties, it emerged last night, as the chief medical officer expressed concerns about such gatherings.
Tony Holohan said while there has been a lot of focus on gatherings on beaches and parks, the organisation of house parties and the “unseen activity in ordinary houses” is a continuing cause of concern for the NPHET team.
“House parties are being organised with abandon it would seem to me as though we weren’t in the midst of a pandemic — that is a continuing cause for concern.”
His comments came after a tense confrontation in Cork City yesterday between two men and the young occupants of a house where there was clear evidence of a recent house party.
The house on Glasheen Rd is close to where residents first raised complaints last weekend about “Magaluf and J1-style house parties” in several rented properties in the city’s university precinct — some attended by up to 60 young people at a time.
Residents called on the Government to give gardaí stronger powers to deal with the activity.
Now, trainee solicitor, Sarah McNulty, of Cantillons, has identified legislation she says could help — the Health Act 1947.
“The act creates a general legal duty to take precautions against infecting others with disease,” she said.
It gives power to health officials — now the HSE — to enter any premises at any reasonable time to investigate any suspected breach of regulations made under the Act, including the Covid-19 regulations, and if access to a property is refused, forced entry is legally permissible.
“Given the protection afforded to the home of the citizen, under the Constitution, it is understandable that the gardaí will tread carefully, but if there are 40 students at a party in a rental house creating a health hazard for other citizens, the public interest must prevail,” Ms McNulty said.
Trainee solicitor Sarah McNulty provides the following overview of the legal issues involved
The core legislation is the Health Act 1947 which is very wide and far-reaching. The Health Act 2020 covers Covid-19 specifically, extends powers and increases penalties. The 1947 Act creates a general legal duty to take precautions against infecting others with disease.
The most relevant powers under the 1947 Act are the powers for health officials (now HSE) to enter any premises at any reasonable time to investigate any suspected breach of Regulations made under the Act. This includes the Covid-19 Regulations made under the 2020 Act.
Section 94 (1) authorises a Health Official at all reasonable times to enter and inspect any premises for the purpose of ascertaining whether there has been a breach of the Act or the Regulations and the nature or extent of it.
The Health Official must be authorised and produce proof of such authorisation, if requested. If access is refused, or not possible, forced entry is legally permissible, subject to certain conditions and safeguards. Any person obstructing a health official in this function is guilty of an offence.
Under Section 95 of the 1947 Act, an authorised Health Official may require An Garda Siochana to assist him/her in the exercise of his/her powers under the Health Acts.
Section 95 specifically authorises the Gardai to assist the Health Official in his/her duties by specified action including “any other action in which the use of force may be necessary and is lawful, and any member of the Garda Siochana so required shall comply with the requirement”.
Given the protection afforded to the home of the citizen, under the Constitution, it is understandable that the Gardai will tread carefully, but if there are 40 students at a party in a short-term rental house creating a health hazard for other citizens, the public interest must prevail.
The Health Act 1947 also creates specific obligations for any person selling or letting a property where has been an outbreak of an infectious disease. This could have serious implications for future sales or lettings of student accommodation.
As to civil remedies, the good news is that there is cheap, quick and effective remedy available in your local District Court.
There are a number of misbehaviours where the State encourages and facilitates access to justice on a DIY or self-help basis. Examples include the Small Claims Court, applications under the Dogs Act 1986, and in domestic violence cases, where citizens can seek the intervention of the Court, without a Lawyer.
In the case of nuisance by noise, the relevant Law is in Section 108 of the Environmental Protection Agency Act 1992. This defines noise nuisance as “any noise which is so loud, so continuous, so repeated, of such duration or pitch or occurring at such times as to give reasonable cause for annoyance to a person in any premises in the neighbourhood”.
The Act also then makes provision for applications to be made to the District Court for what are, in effect, restraining orders against those responsible for the nuisance.
Prior notice must be given of the intention to apply to the Court. This is a relatively simple procedure, and short notice can be given. The notice consists of one page. You can seek help and the forms from the Citizens Advice website. The application is made at the District Court Office. The procedures are straightforward and the Court staff are polite and helpful, and especially where the aggrieved person does not have a solicitor.
You will be given an early date for a hearing of your complaint by a District Judge.
If the noise nuisance is coming from a particular house normally let to students, it is probably best to make the complaint against the owner of the house as well. If not known to you, ask the tenants for the name and address of their landlord. If not disclosed, just deliver your notices to the house, and ask the tenants to make the landlord aware.
There are several reasons for including the landlord in the Court proceedings.
First, to remind him/her of his/her legal responsibilities to his neighbours, particularly during a pandemic.
Secondly, to alert him/her to the possibility of legal liability for compensation and damages if the nuisance is allowed to recur.
Thirdly, to give the landlord the opportunity to ensure that future lettings of the property to students include a strict “no parties, no noise, no nuisance “condition in the lease with an extra provision for immediate termination of the letting if any such event occurs.
You might also suggest to the landlord that he/she should notify his/her Insurers.
If the tenants will not give you their names, ask the landlord or the Gardaí to assist you in your request, which is reasonable, and for the purpose of intended Court proceedings.
The prospect of being named in Court proceedings, where a restraining order might be made against a student in respect of anti-social behaviour, should worry him or her.
If notified to the college authorities it may give rise to disciplinary proceedings. More seriously, there will be a record, and it would not be impressive on a CV, or if a question is asked in an interview many years hence: “Were you ever prosecuted in any court?”.
Above all it should be matter of shame to any student, and to his own family, that he has caused nuisance, annoyance, disturbance, or damage to other citizens, who have their civil rights too, and who as taxpayers are contributing to the cost of his education.