Traveller Law Database
Clare County Council v Bernard McDonagh and Helen McDonagh  IECA 307
|Date of Decision:
|Thu, 12 Nov 2020
|Decision Making Body:
|Court of Appeal
|Equal Status Acts (2000-2018), European Convention on Human Rights, European Convention on Human Rights Act 2003, Planning and Development Act 2000
|Accommodation, Interlocutory Injunction, Mandatory Interlocutory Injunction, Traveller Specific Accommodation, Trespass, Article 8 ECHR
|Full Case Details - Download Full Judgment (pdf)
This is an appeal against an order made in the High Court (Clare County Council v. McDonagh  IEHC 662). The Judge concluded that the appellants failed to establish any basis on which they could conclude that the High Court Judge erred in granting the interlocutory reliefs sought by the Council and refused the claims advanced by the appellants.
The appellants are Irish Travellers.
This is an appeal against order made in the High Court in Clare County Council v. McDonagh  IEHC 662 where the Judge granted interlocutory injunctions restraining the appellants, and all other persons having notice of the order, from placing and retaining their caravans, vehicles and associated property on the Council’s land. The court granted a further mandatory interlocutory injunction, that the parties be compelled to remove their caravans and vehicles and associated property from the land. The court also granted an interlocutory order pursuant to S160 (3)(a) of the Planning and Development Act 2000 as amended, requiring immediate cessation of the unlawful use of the Council’s said lands which had resulted from the placement and retention of the appellants’ caravans and vehicles thereon for the purpose of caravanning and habitation. Mandating the appellants, pending the determination of the trial, to remove their caravans, vehicles and associated property from the Council’s lands.
The appellants argued that the High Court failed to determine whether their caravans, vehicles and associated property placed on the Council’s land constitute a “home” within the meaning of Article 8 ECHR, and whether the interference proposed by the Council, in the form of the orders granted by the High Court, amount to a proportionate interference with the right to respect for one’s home under Article 8 ECHR.
The appellants, contend that Irish domestic law did not accord with the jurisprudence of the ECtHR on the basis that they do not provide for any proportionality assessment.
The appellants sought the setting aside of the prohibitory and mandatory interlocutory injunctions together with the orders made pursuant to S160(s)(a) of the Planning and Development Act 2000 pending the trial of the action.
It was contended by the appellants that the conduct of the Council had resulted in a failure to facilitate a Traveller way of life, particularly by consistently electing not to draw down available funding allocated for the purposes of Traveller specific accommodation, coupled with a failure by the Council to zone any land for the purpose of Traveller accommodation in its Clare County Development Plan 2017-2023. The appellants submit that this amount to a disproportionate interference.
The Council opposed the appeal on all grounds.
The Judge summarised that a party seeking to set aside an interlocutory order of the High Court made in the exercise of its discretion must establish that an injustice will be done unless the order is set aside.
The Judge looked towards the appellants submissions on the applicability of ECtHR jurisprudence to the facts of the case to consider whether the interlocutory orders were made in error. The Judge found that the trial Judge considered the jurisprudence of the ECtHR to the submissions of the appellants regarding the domestic jurisprudence and the legislation and found the trial Judge comprehensively and correctly analysed both domestic and ECtHR jurisprudence. The Judge found the trial Judge did not deviate or offend the ‘proportionality’ test regarding the interference with the appellants’ rights, including their right to housing and the enjoyment of their home.
The Judge noting that s.2 of the European Human Rights Act 2003 requires that, in interpreting and applying any statutory provision or rule of law, a court shall, insofar as is possible and subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions. Section 4 of the Act provides that when interpreting and applying Convention provisions a national court shall take due account, inter alia, of the jurisprudence of the ECtHR and relevant decisions of the European Commission of Human Rights and the Committee of Ministers. The Judge found that the analysis of the trial Judge shows that he did so, and his analysis was correct.
The Judge further found that regard must be had to the current circumstances of the appellants in the context of their pattern of conduct in declining reasonable offers of accommodation by the Council and engaging in numerous breaches of the planning legislation, requiring repeated applications by the Council to the High Court for injunctive relief.
Regarding the mandatory interlocutory injunction, the Judge was satisfied that there was clear evidence before the High Court Judge which met the higher standard required of an applicant who seeks a mandatory interlocutory injunction and which demonstrated that the Council had made out a strong case that it is likely to succeed at the trial of the action to obtain permanent mandatory injunctions and orders in like terms.
The appellants established no stateable defence or basis in law as would justify their continuing acts of trespass and continuing breaches of the Planning and Development Act 2000. The Judge found that evidence was consistent only with a decision to engage in repeated breaches of planning legislation, acts of trespass and unlawful conduct for the purposes of exerting pressure on the Council to secure housing demands of a bespoke nature, kind and scale for which the appellants established no lawful entitlement. The Judge found that appellants exhibited a ‘cavalier attitude’ to environmental and planning law and to complying with court orders, only to immediately thereafter commence committing further breaches of planning law on lands not covered by the earlier Court orders.
The Judge found the appellants failed to identify any authority either under domestic law or the Convention’s jurisprudence for the proposition that the act of going onto property by an act of trespass and placing caravans and vehicles on the property for the purpose of caravanning and habitation, in a manner which clearly breaches s. 160 of the Planning and Development Act 2000, can be defended by the assertion that the caravans and vehicles are in use as a “home”.
The Judge found that the appellants were not left under an impression that they were to be permitted to continue to reside on the Cahercallamore lands. The respondent Council continuously sought possession of the land and it is clear from the affidavit evidence that they promptly and unequivocally proceeded to exercise their statutory obligation to enforce the Planning Code and their right to recover possession of the lands occupied by the appellants by seeking injunctions to restrain trespassing. Furthermore, at no time did the appellants deny that they were engaging in trespass or unauthorised use and development of the land, and they did not appear to dispute that ownership resided with the Council.
The appellants did not identify any authority either within the ECtHR jurisprudence or in domestic law in support of the proposition that they are legally entitled to compel the Council to fulfil their demand for bespoke housing - being Traveller specific accommodation sufficient to accommodate the wider McDonagh family which would require six distinct units of accommodation. The Judge finding that the statutory obligations of the Council do not extend to an obligation to provide accommodation or a site exclusively for the extended McDonagh family.
The Judge noted that the trial Judge correctly concluded that the orders were warranted, and the said orders did not violate any contended rights of the appellants. Finding Judge that the appellants’ contention that the Council has failed to facilitate the way of life of the appellants, by electing not to draw down available funding for the purposes of Traveller specific accommodation, has been comprehensively addressed in the high court judgment.
The Judge was therefore satisfied that the trial Judge’s decision was made in the exercise of Judge their discretion based on the correct application of the relevant principles. He found that no evidence was adduced as could amount to any stateable defence to the continuing user of the Council’s lands for an unauthorised development in clear breach of s. 160 of the Planning and Development Act 2000. Finding that the measures invoked by the Council and applied by the court were within the margin of appreciation afforded to the state and state authorities.
The Judge concluded that the appellants failed to establish any basis on which they could conclude that the High Court Judge erred in granting the interlocutory reliefs sought by the Council and refused the claims advanced by the appellants.
The Judge dismissed the appeal.