Solicitor found guilty over ‘unfit’ Downhill property

Coleraine Solictor Fergus McIntosh, arrives at Coleraine on Friday morning.PICTURE MARK JAMIESON.
Coleraine Solictor Fergus McIntosh, arrives at Coleraine on Friday morning.PICTURE MARK JAMIESON.

A COLERAINE solicitor has been found guilty of failing to comply with an unfitness order at a house he owns.

Fergus McIntosh failed to carry out repairs to the property at 800 Seacoast Road, Downhill, which was being lived in by pensioner John McCarter.

For almost 30 years the house at Seacoast Road, Downhill had no heating or electricity supply.

In court last week McIntosh, who gave his address as Abbey Street in Coleraine where he runs his legal business, was fined for defying court orders to bring the property up to a reasonable standard in accordance with the Private Tenancies Order.

The wooden house, with picturesque views of the sea has no electric or heating, and is currently occupied by Mr McCarter.

Mr McIntosh became the legal owner of the property, described as a ‘seaside holiday home’ after relations broke down between Mr McCarter and his sister, Mrs Tonkin, who orginally owned the property.

In 2010, McIntosh applied for a Certificate of Fitness to create a tenancy agreement with Mr McCarter.

Following inspections that year by Council’s Environmental Health Department, as a requirement of the Private Tenanacies Order, defects were found regarding ventillation, heating and lighting.

This resulted in the property being described as ‘unfit for human habitation’ and Council refused to grant McIntosh a certifcate of fitness for the property.

This was not appealed by McIntosh. At the time he entered a plea in court and was absolutely discharged paying costs of £186.

A further inspection was carried out by Coleraine Borough Council in December 2011.

A Council officer ruled that the notice of unfitness had not been complied with and decided to proceed with a case against McIntosh.

At a previous hearing in Ballymena Magistrates’ Court, Judge Mervyn Bates deferred sentencing to North Antrim Magistrates’ Court as he said that there was ‘local interest’ in the case.

During last Friday’s hearing in Coleraine, District Judge Bates read from his five page ruling.

He told the court that he had taken into account the the fact that McIntosh had carried out some work to the property, installing wiring, battery lights, wall sockets and a generator.

The judge also pointed out that evidence given by an expert witness, Mr Gibney, for the prosecution made it clear that the legislation could not impose a demand that mains electricity be supplied at the property.

However, Judge Bates said that it was the view of Mr Gibney that a generator was not safe because of carbon monoxide risks and the danger of slippiing whilst filling the petrol tank.

Judge Bates also refered to evidence given by an expert witness called by the defence, Mrs McAuley of the Housing Executive.

She told the court that an inspection had been carried out and results indicated that the property was ‘not unfit’ for human habitation, despite having no electrical supply.

The defence had suggested that Mrs McNally who carried out the inspection on behalf of the Council, was biased against the defendant because of a history of friendship and then a dispute between the defendant’s wife and Mrs McNally.

However Kieran Doherty, Council’s Corporate Director of Financial Services, was firmly of the view that no invalid considerations were employed in determining the case by either Mrs McNally and her senior officer Mrs Barr, .

Judge Bates said he “was of the view from all the evidence that Mrs McNally did not act inappropriately or unprofessionally, and that she did not exhibit bias to the defendant.

“Her views have been amply supported by her superiors and others, who agree with her interpretation although they may not have inspected the property,” he said.

Reading from his ruling, District Judge Bates said: “The straightforward question which I must consider is: Was provision made by Mr McIntosh as legal owner of the property adequate to satisfy the requirements of the notice of unfitness referring to the standards of the Private Tenancies Order?”

Concluding Judge Bates said: “I understand that this is a wooden structure with a limited life, and that neighbours are living with generators, but when a private tenancy becomes involved then the standards must be as set out in the legislation.

“There was no expert evidence called by the defence to argue that the provisions were safe or adequate, just that other neighbours had no better facilities.

“I am therefore compelled by the evidence to conclude that the provisions made by Mr McIntosh are not adequate and therefore there is a finding of guilty to the offence charged.”

McIntosh was fined £500 plus court costs.

Counsel for Coleraine Borough Council told the court that costs were ‘significant’ and estimated them to be in the region of £15,000.

However, Judge Bates told the court that guidelines for the Magistrates Court did not permit him to award costs of this amount. He awarded costs of £1,200.

McIntosh will be appealing the conviction.

Speaking afterwards, Mr McCarter said he was relieved the long-running case had concluded.

“I never wanted this to go to court at all,” he said.

“It would have been far better if it had been sorted earlier on for all parties concerned.”

Mr McCarter said he had stayed in the house because he liked its idyllic setting, nestled under the cliffs looking out to sea.

“I just liked the place. It’s an old house, it sort of suited my personality, it suited me,” he said.

“That’s the reason I wanted to remain in the house.

“I’m happy here and that’s why I wanted to stay.”