Clare County Council v Bernard McDonagh and Helen McDonagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 10 October 2019
• Neutral Citation: [2019] IEHC 662
• Court: High Court
• Docket Number: [2017 No. 11402 P.]
• Date: 10 October 2019

BETWEEN

CLARE COUNTY COUNCIL

PLAINTIFF

AND

BERNARD MCDONAGH

AND

HELEN MCDONAGH

DEFENDANTS

[2019] IEHC 662

Allen

[2017 No. 11402 P.]

THE HIGH COURT

Injunction – Trespass – Defence – Plaintiff seeking injunctive relief – Whether defendants were entitled to occupy lands

Facts: The plaintiff, Clare County Council, brought an action for a permanent injunction restraining the defendants, Mr and Mrs McDonagh, from trespassing on lands at Ashline, Kilrush Road, Ennis, Co. Clare. The defendants put forward a number of defences and counterclaims directed, variously, to their entitlement to occupy the lands, a promise of a house at Ashline, and the performance by the plaintiff of its statutory functions under the Housing (Traveller Accommodation) Act 1998.

Held by Allen J that the plaintiff was the owner of the lands in Folio CE42569F, Co. Clare, comprising 0.914 hectares, situate at Ashline, Co. Clare. Allen J noted that in 1998 the defendants were given a tenancy from week to week in one of four houses which then stood on the site. The defendants’ house was badly damaged by fire in November, 2012. The defendants then decided to move out of the house, and they did move out. The house was shuttered up by the plaintiff and the defendants were put back on the housing list. Allen J held that the defendants’ tenancy was not surrendered in writing, but it was surrendered by act and operation of law; even if the defendants’ tenancy had subsisted, it would not have justified their occupation of any other part of the site. By the end of 2013 the site was entirely abandoned, and the houses were uninhabitable. Allen J held that the height of what anyone could have legitimately expected from the Clare Traveller Accommodation Programme 2014 – 2018 was that the plaintiff would invite proposals for the redevelopment of the site and give due consideration to any proposals that might be made; the TAP did not say and could not reasonably been understood as a promise or representation either that the site would be redeveloped as a traveller specific group scheme, or that it would not be redeveloped other than as such a scheme. Allen J held that the height of what could have been legitimately expected from the plaintiff’s letter of 9th January, 2014 was that if and when the site was redeveloped for social housing, the defendants would be offered one of the houses; the plaintiff had repeatedly confirmed that promise. Allen J held that the defendants’ counterclaim for declarations in relation to the implementation by the plaintiff of its obligations under the Housing (Traveller Accommodation) Act, 1998, although pleaded in terms of private law, was a public law challenge to the performance by the plaintiff of public law duties. Allen J held that a challenge to an administrative decision or measure is ordinarily to be made by way of an application by way of judicial review; if the challenge is made by plenary proceedings claiming declarations, the court will impose the time limits applicable to judicial review and will expect the degree of precision and focus that is required before leave can be granted to bring proceedings by way of judicial review. Allen J found that the substance of the defendants’ challenge to the performance by the plaintiff of its statutory functions was that the court should make its own appraisal, or review the plaintiff’s assessment, of the need for traveller specific group accommodation schemes in Co. Clare, or, perhaps, the desirability of a traveller specific group scheme at the Ashline site. Allen J held that this was not something which the law allowed. Allen J held that, to the extent that particular decisions or acts by the plaintiff could be identified, they dated from 10th March, 2014 when the TAP for 2014 – 2018 was adopted, to 19th December, 2016 when the Clare County Development Plan 2017 – 2023 was adopted. Allen J noted that no justification was offered for the delay in the challenge, which was first made in the counterclaim delivered on 17th January, 2018. Allen J held that, in any event, so much of the counterclaim was based on the 1998 Act and the Clare Traveller Accommodation Programme 2014 – 2018 was based on non-justiciable issues as to the formulation and implementation of policy and fundamental misunderstanding of the zoning of the lands and the availability of central government funding for the provision of traveller specific accommodation.

Allen J held that there would be a permanent injunction restraining trespass on the lands and that the counterclaim would be dismissed.

Application granted and counterclaim dismissed.

JUDGMENT of Mr. Justice Allen delivered on the 10th day of October, 2019

Introduction

1 This is an action for a permanent injunction restraining the defendants from trespassing on lands at Ashline, Kilrush Road, Ennis, Co. Clare.

2 The defendants put forward a number of defences and counterclaims directed, variously, to their entitlement to occupy the lands, a promise of a house at Ashline, and the performance by the plaintiff of its statutory functions under the Housing (Traveller Accommodation) Act, 1998.

3 To understand the issues before the court, it is necessary first to look at the facts.

The facts

4 The lands at Ashline were acquired by Clare County Council from St. Flannan's (Killaloe) Diocesan Trust in 1990 and were used thereafter for traveller specific accommodation, initially as a halting site. In 1998 four houses were built on the lands and in 2006 two more were added. There was no evidence as to the cost of the first four houses, but the second two cost €1.7 million.

5 Mr. and Mrs. McDonagh were given a tenancy for one of the first four houses, No. 1 Ashline, on 26th March, 1998. The tenancy was a tenancy from week to week, on the terms of the council's standard form tenancy agreement for Housing Act, 1966 lettings.

6 In the early 2000s there was a problem with feuding amongst the traveller families in Co. Clare. The houses at Ashline and other sites in Clare were the subject of arson attacks and vandalism. By 2009 there were nine houses in the county which were unusable by reason of fire and wanton destruction.

7 On 9th August, 2012 Mr. McDonagh called to the offices of Clare County Council where he spoke with Mr. Colm O’Mahony, then an assistant staff officer with responsibility for housing. By then the other five houses in Ashline had been rendered uninhabitable. Mr. McDonagh said that he wished to leave Ashline and asked Clare County Council to buy a house in Cork for him and his family. He said that he was not interested in going on the housing list in Cork and would only leave if Clare County Council could guarantee to buy him a house or a yard there on which he could put a caravan. Alternatively, Mr. McDonagh suggested that he would be agreeable to Clare County Council “buying him out” for a sum of money.

8 Mr. McDonagh then reported that Mrs. McDonagh was unwell and that there was a threat of violence on the site. He said that the house had been petrol bombed five years previously. There was a court case coming up in the following September when members of another family were to go on trial accused of cutting off his nephew's finger. Mr. McDonagh reported an apprehension that if a custodial sentence were to be imposed on those accused, his house and family would be attacked in reprisal. Mr. O’Mahony explained that Clare County Council was not in a position to purchase or build a house for anyone in another functional area.

9 On 16th October, 2012 Mr. McDonagh was brought before Kilrush District Court charged with a number of offences. On 30th October, 2012 he was admitted to bail by the High Court on terms inter alia that he would reside at an address in Cork City and observe a curfew.

10 On 1st November, 2012 Mr. O’Mahony had a call from Mr. and Mrs. McDonagh's daughter who renewed the request for a transfer for Mrs. McDonagh to Cork. She reported that Mrs. McDonagh would not leave the house due to fear of being attacked and that she had a letter from the gardaí stating that Mr. and Mrs. McDonagh needed to leave the Ennis area. Mr. O’Mahony explained to Mr. and Mrs. McDonagh's daughter that her parents would need to apply to Cork City Council for assessment and would need to surrender their tenancy in Ashline and return the keys. Miss McDonagh said that she and her mother would come in soon to do so.

11 Mrs. McDonagh's fear was abundantly justified, for on 11th November, 2012, the house was the subject of another arson attack.

12 On the following day Mrs. McDonagh called to see Mr. O’Mahony. She said that she was homeless as a result of the fire the previous night and asked Clare County Council to contact Cork County Council to get a house for her in Cork. Mrs. McDonagh confirmed that she had been receiving her social welfare in Fairhill, Cork, for the previous number of weeks. She then signed a form of surrender of the tenancy but as Mr. McDonagh was a joint tenant, took the form away with her to Cork to get his signature. Mr. O’Mahony advised Mrs. McDonagh that the housing officer would make the decision on approving their housing need once the surrender form had been received and the council received a report on the fire at Ashline from the fire service.

13 Soon after Ms. Siobhan McNulty, a county council engineer, visited the site to survey the damage. The house was extensively smoke damaged, and Ms. McNulty was concerned that the roof had been compromised. There were some white goods, furniture and other possessions in the house, but it was not habitable. Ms. McNulty arranged for the house to be secured by the erection of steel shutters on the doors and windows, and had a barrier erected at the entrance to the site.

14 Following the fire, Mrs. McDonagh and her children moved in for a short time with Mr. McDonagh's brother in Cork and thereafter, until the end of...