Clare County Council v McDonagh

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 12 November 2020
• Neutral Citation: [2020] IECA 307
• Docket Number: Record Number: 2019/442
• Court: Court of Appeal (Ireland)
• Date: 12 November 2020

BETWEEN/

CLARE COUNTY COUNCIL

RESPONDENT

-AND-

BERNARD MCDONAGH

AND

HELEN MCDONAGH

APPELLANTS

[2020] IECA 307

Whelan J.

Noonan J.

Power J.

Record Number: 2019/442

THE COURT OF APPEAL

Interlocutory injunctions – Article 8 of the European Convention on Human Rights – Proportionality – Appellants appealing against interlocutory injunctions – Whether the interference proposed by the respondent amounted to a proportionate interference with the right under Article 8 of the European Convention on Human Rights to respect for one’s home

Facts: The appellants, Mr and Mrs McDonagh, appealed to the Court of Appeal against the orders made by Allen J in the High Court on 15 October 2019 wherein he granted interlocutory injunctions pending the trial of the action. The orders restrained the appellants and all other persons having notice of the making of the order from placing and retaining their caravans, vehicles and associated property on the land of the respondent, Clare County Council, at Cahercallamore, Ennis, County Clare comprising the land in Folio 50734F County Clare. The court granted a further interlocutory injunction, mandatory in its terms, that the said parties be compelled to remove forthwith their caravans and vehicles and associated property from the said land. The court granted an interlocutory order pursuant to s. 160(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 and mandating the appellants, pending the determination of the trial, to remove forthwith their caravans, vehicles and associated property from the Council’s said lands. The key ground of appeal advanced at the hearing was that the High Court failed to determine whether the appellants’ caravans, vehicles and associated property as placed on the Council’s Cahercallamore lands constitute a “home” within the meaning of Article 8 of the European Convention on Human Rights such as to attract the protection thereof and, if so, whether the interference proposed by the Council in the form of the orders granted by the High Court amounted to a proportionate interference with the right under Article 8 to respect for one’s home.

Held by Whelan J that: (a) the hearing of an appeal from an interlocutory injunction does not involve a re-hearing; (b)(i) the evidence pointed towards a strong likelihood that the respondent would succeed at trial in light of the clear breaches of the 2000 Act and the continuing acts of trespass of the appellants, and (ii) the appellants lacked the requisite close and continuous links with Cahercallamore which is a prerequisite to establishing a Convention-recognised “home”; (c) the decision appealed against was made in the exercise of the trial judge’s discretion, based on a correct application of the applicable principles and was one clearly open to him on the evidence; (d) the Council did not seek to rely on the adequacy of damages electing to approach the issue on the merits instead; (e) no error of principle in the analysis of the trial judge was identified by the appellants which would warrant intervention by the Court; (f) in assessing the balance of justice, she was satisfied on the evidence that the appellants had no nexus with or interest in the Cahercallamore lands. Whelan J held that the appellants had failed to establish any basis on which she could conclude that the High Court judge fell into error in granting the interlocutory reliefs sought by the Council and refusing the claims advanced by the appellants.

Whelan J held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 12th day of November 2020

Introduction

1 This is an appeal against the orders made by Allen J. in the High Court on 15 October 2019 wherein he granted interlocutory injunctions pending the trial of the action. The orders restrained the appellants and all other persons having notice of the making of the order from placing and retaining their caravans, vehicles and associated property on Clare County Council's (hereinafter “the Council”) land at Cahercallamore, Ennis, County Clare comprising the land in Folio 50734F County Clare. The court granted a further interlocutory injunction, mandatory in its terms, that the said parties be compelled to remove forthwith their caravans and vehicles and associated property from the said land. The court granted an interlocutory order pursuant to s. 160(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 and mandating the appellants, pending the determination of the trial, to remove forthwith their caravans, vehicles and associated property from the Council's said lands.

Background

2 The appellants are members of the Traveller community. Since March 2017 the Traveller community is recognised as a distinct ethnic group.

3 This is the third occasion in succession in which the Council has had to apply to the High Court for interlocutory injunctions to restrain breaches of planning legislation arising from unauthorised use of either part of the public highway or Council-owned property for caravanning and habitation.

4 To understand, more fully, the current proceedings in their context it is necessary to briefly outline key elements of the housing history of the appellants. It appears that from in or about the month of March 1998 until November 2012 the appellants resided at No. 1 Ashline, Kilrush Road, Ennis, County Clare. The dwelling was one in a development constructed on the lands in Folio 42569F County Clare (Ashline) which is in the ownership of the Council. The dwelling house was destroyed by fire in or about 11 November 2012. It has been held in separate proceedings (“the Ashline proceedings”), that, at the latest, the tenancy of the appellants in the property ended in or about the month of February 2013. From November 2012, in the aftermath of the fire, the appellants appear to have initially resided briefly in Cork and with relatives. The second appellant then moved to reside with her mother-in-law at a dwelling house in Considine Road, Ennis, County Clare. Thereafter, from between the month of December 2013 and late September 2017, a period of almost four years, the appellants resided at Shallee Drive, Ennis, a private rented dwelling house. It became necessary to vacate the latter property in or about September 2017 in order to carry out essential repairs.

The Ashline proceedings

Initial occupation of public highway at entrance to Ashline site

5 In a judgment by Allen J. in the High Court, Clare County Council v. McDonagh [2019] IEHC 662, delivered in separate proceedings between the same parties pertaining to the appellants' occupation of the Council's Ashline property, and which judgment and ensuing permanent injunctions have notably not been the subject of any appeal by the appellants, the said judge characterised events of September 2017 thus: -

“24. When, in September, 2017, Mr. and Mrs. McDonagh had to move out of the private rented house in which Mrs. McDonagh had been living for coming up to four years, they brought mobile homes to the side of the road outside the Ashline site, which had been locked up for coming up to five years. Mr. McDonagh's evidence was that they had no choice but to go back to the side of the road, but he accepted in cross-examination that he and his wife had refused two offers of the house in Beechpark and two more of other houses in Ennis, one at Aisling Estate, Shanaway Road, and another at Cappahard, Tulla Road.

25 In September, 2017 someone tried to break into the Ashline site. Mr. McDonagh declined, on his solicitor's advice, to say whether it was he. Following the attempt to enter the site, the council placed thirteen one tonne concrete bollards across the entrance to the site. On 24th November, 2017 these bollards were moved using a forklift or other heavy machine. Mr. McDonagh declined, on his solicitor's advice, to say whether it had been he who moved the bollards.” As is clear from the above, for a period of approximately two months the appellants were encamped at the entrance to Ashline at Ennis on an area that comprised part of the public highway and thereafter moved onto the Ashline site.

6 The Council instituted the Ashline plenary proceedings on 15 December 2017. It issued a motion seeking mandatory and prohibitory interlocutory orders to restrain breaches of the Planning and Development Act 2000, as amended, and trespass, and same was returnable before the High Court on 18 January 2018.

Appellants' consent to interlocutory injunctions

7 On the latter date, the appellants consented to interlocutory injunctions being granted pending the trial of the Ashline proceedings restraining them, their servants, agents or otherwise howsoever from unlawfully placing and retaining caravans and associated vehicles or property on the Ashline site together with a further order compelling the appellants to remove the caravans, property and associated vehicles forthwith from the said lands pending trial of the action.

8 The Ashline litigation proceeded to a plenary hearing and ultimately a reserved judgment was delivered on 10 October 2019 from which judgment and orders the appellants did not appeal. The said judgment will be considered further, presently.

Occupation by appellants of R475 public highway and lands at Cahercallamore

9 Having vacated the Ashline site, the appellants relocated themselves for the third time to a nearby lane approximately fifty metres from...