Clare County Council v Bernard McDonagh and Helen McDonagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 31 January 2022
• Neutral Citation: [2022] IESC 2
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000078

Between/

Clare County Council

Plaintiff/Respondent

and

Bernard McDonagh and Helen McDonagh

Defendants/Apellants

and

Irish Human Rights and Equality Commission

Amicus Curiae

[2022] IESC 2

Dunne J

O'Malley J

Baker J

Woulfe J

Hogan J

S:AP:IE:2021:000078

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Unauthorised development – Interlocutory injunctions – Proportionality – Appellants appealing against a mandatory interlocutory order requiring the appellants to vacate a site – Whether the High Court and Court of Appeal failed to properly consider the proportionality of the interlocutory injunctions to be imposed

Facts: The appellants, Mr and Mrs McDonagh, were husband and wife who were members of the Travelling community. They, along with two sons and other members of their extended family, illegally occupied lands which were the property of the respondent, Clare County Council, by placing three caravans and two mobile homes on a green field site. This occupation amounted to a form of unauthorised development, contrary to s. 3 of the Planning and Development Act 2000. It appeared that the appellants had constructed a form of stone road and a form of “courtyard” between the temporary dwellings, although there was some dispute between the parties as to what may have been constructed by the appellants and what was already there. The Council arranged for portable sanitary facilities to be installed on the site as a temporary measure. The respondent sought (and obtained) a mandatory interlocutory order from the High Court requiring the appellants to vacate the site. The order was affirmed by the Court of Appeal and the appellants appealed to the Supreme Court following the grant of leave pursuant to Article 34.5.3 of the Constitution. The appellants’ case centred on the submission that the Court of Appeal did not have proper regard to the failure of the respondent to demonstrate that its interferences with the appellants’ rights under Article 8 of the European Convention on Human Rights (ECHR) were in accordance with the law and necessary in a democratic society. The appellants also submitted that the High Court and Court of Appeal failed to properly consider the proportionality of the measures to be imposed, namely the interlocutory injunctions, as required by the ECHR and the European Convention on Human Rights Act 2003.

Held by Hogan J that the caravans etc. constituted a “dwelling” for the purposes of Article 40.5 of the Constitution for the reason that it was in fact the appellants’ place of residence. Hogan J held that the substance of that constitutional guarantee of inviolability would be compromised if the making of such an order was not subject in the circumstances to an appropriate proportionality analysis. Hogan J held that the same was broadly true of the Article 8 ECHR claim. Hogan J thought that the appellants had raised at least a fair question as to whether the caravans etc. constituted a home for the purposes of Article 8 ECHR in view of their connections with the locality. Hogan J held that it would be premature to make mandatory interlocutory orders precisely because, first, the effects on the marginalised and vulnerable appellants would be catastrophic as there was really nowhere else where they could lawfully go and, second, it was not clear that any immediate threat to the amenities of others, public safety or the environment generally or other similar pressing considerations was thereby presented by the particular illegal occupation of Council lands. Hogan J held that the application may accordingly be distinguished in that respect from that made in Meath County Council v Murray [2017] IESC 25 and from other cases concerning applications for permanent injunctions to restrain unauthorised development.

Hogan J allowed the appeal and discharged the mandatory interlocutory orders granted by the High Court and affirmed by the Court of Appeal.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 31 ^st day of January 2022

Introduction

1 . This judgment is being delivered just over 100 years since the first Provisional Government for an independent Irish State was called into being. It is nonetheless salutary to reflect that one hundred years later a distinct group – the Irish Traveller community – still remains a vulnerable minority at the margins of Irish society. The members of that community have struggled for recognition of their own cultural identity and way of life. While any dispassionate observer would recognise that there has been fault on both sides, the fact remains that the legal system has not found it altogether easy to accommodate the distinct cultural traditions of the travelling community – such as nomadism and living in large family groups – within its traditional ambit of protecting and enforcing property rights, enforcing laws restraining trespass and legislation designed to give effect to legitimate planning, zoning and environmental concerns. The present case exemplifies many of these difficulties.

2 . The appellants are husband and wife who are members of the Travelling community. It is accepted that they, along with two sons and other members of their extended family, currently illegally occupy lands which are the property of the respondents, Clare County Council, by placing three caravans and two mobile homes on a green field site (one of the mobile homes belongs to one of their sons.) It is also accepted that this occupation amounts to a form of unauthorised development, contrary to s. 3 of the Planning and Development Act 2000 (“the 2000 Act”). In addition it appears that the appellants have constructed a form of stone road and a form of “courtyard” between these temporary dwellings, although there is some dispute between the parties as to what may have been constructed by the appellants and what was already there. The Council has arranged for portable sanitary facilities to be installed on the site as a temporary measure.

3 . The respondents have now sought (and obtained) a mandatory interlocutory order from the High Court requiring the appellants to vacate this site. This order was affirmed by the Court of Appeal and the appellants now appeal to this Court following the grant of leave pursuant to Article 34.5.3 of the Constitution.

4 . At first blush it might seem that there is no answer to these claims, not least in view of a recent decision of this Court in Meath County Council v. Murray [2017] IESC 25, [2018] 1 IR 189 which articulates a presumption that a planning authority will generally be entitled to obtain an order under s. 160 of the 2000 Act requiring the demolition of an illegally constructed private dwelling. Yet the situation here is more nuanced and complex than that, in part because it is not clear that the Council, qua housing authority, has adequately discharged its duties to provide accommodation for the appellants under the Housing (Traveller Accommodation) Act 1998 or, for that matter, under the Housing Acts. Moreover, unlike the situation in Murray – where the defendants had constructed a very large dwelling entirely without planning permission which clearly affected the amenities and rights of others – the present case concerns purely temporary structures. In addition, it is clear that this is the only dwelling that the defendants have and if they are obliged to vacate this site they have no alternative land on which to reside as there are no other suitable lands or sites available to them within the functional area of the respondent Council.

5 . A further complication is that while the appellants' caravans and mobile home are clearly a “dwelling” for the purposes of Article 40.5 of the Constitution (even if the force of that constitutional protection is diluted by reason of their illegal occupation of the lands), the Court of Appeal was not asked to consider this issue and many pertinent authorities on this point do not appear to have been drawn to that Court's attention. Had this happened it would presumably have affected the reasoning and, quite possibly, the conclusions of that Court.

6 . The Court of Appeal at all events nonetheless determined that these caravans etc. did not constitute a “home” for the purposes of Article 8 ECHR and, as a result, did not as such perform any formal proportionality analysis in respect of the decision to require the appellants to leave the site beyond saying that the actions of the Council were proportionate and fair. All of this brings into play once again the relationship between the Constitution and the European Convention of Human Rights Act 2003, a topic most recently examined by this Court in Gorry v. Minister for Justice [2020] IESC 55.

7 . Before, however, examining any of these issues, it is necessary first to set out the background facts of this appeal.

Background facts to the appeal

8 . The appellants are members of the Traveller community which since March 2017 has been officially recognised as a distinct ethnic group within Irish society. Between March 1998 and around November 2012 the appellants resided as tenants of the respondent County Council in a small Traveller-specific housing development known as Ashline. In or around 11 ^th November 2012 the dwelling house in which the appellants resided at Ashline was destroyed by a fire. Subsequently, the appellants lived for a brief time with relatives in Cork before ultimately moving into a private rented dwelling house in Ennis, County Clare. The appellants resided in this rented house until late September 2017, at which point it became necessary to vacate the property so that essential repairs could be carried out.

9 . In the period that followed September 2017 the appellants lived on certain lands owned by the respondent County Council, the occupation of which has been the subject to protracted and numerous proceedings. At first the appellants...