Fingal County Council -v- Gavin & Ors, [2007] IEHC 444 (2007)

Docket Number:2007 3142 P
Party Name:Fingal County Council, Gavin & Ors
Judge:Peart J.
 
FREE EXCERPT

THE HIGH COURT

Record Number: 2007 No. 3142P

Between:

Fingal County Council

Plaintiff

And

Martin Gavin, Sam Gavin, Michael Reilly, Arthur Purcell,Robert Gavin, Terry Mongan, Patrick Gavin, Douglas Purcell, and Paul Gavin Defendants

Judgment of Mr Justice Michael Peart delivered on the 14th day of December 2007:

These proceedings are one of three sets of proceedings which came on for hearing before me. At the commencement submissions were made as to the order in which they ought to be heard, and I concluded that it was appropriate that the within proceedings (including the defendants' Counterclaim) be heard first, since it seemed to me that whatever the outcome of the defendants' judicial review proceedings against Dublin City Council (the 2nd proceedings) the plaintiff herein would wish to apply for the injunctive relief sought against the defendants to vacate the lands which they are occupying. There is a third set of proceedings in which the defendants herein are plaintiffs and where they seek a declaration of unconstitutionality of certain legislation.

The present proceedings are brought by the plaintiff council against the defendants, a traveller family, in order to obtain an order restraining trespass by them and other members of that extended family on certain lands at Thomondtown, Lusk, Co. Dublin, as well as a mandatory injunction from this Court requiring the defendants, as well as other members of the extended Gavin family to remove themselves together with all vehicles, caravans, mobile homes, scrap, waste, animals and other livestock from these lands. Other reliefs are sought in the usual way but it unnecessary to set out those other reliefs in detail.

In the Counterclaim delivered with their Defence in these proceedings the defendants seek, inter alia, mandatory relief in the form of an order directing Fingal County Council to provide them within its functional area with suitable traveller accommodation, including appropriate emergency accommodation and services in the form of a halting site.

Of relevance in that regard is the fact that the second set of proceedings referred to above are Judicial Review proceedings commenced by the Gavin family against Dublin City Council in which they seek, inter alia, mandatory orders requiring that Council to provide them with traveller specific accommodation, namely group housing, pursuant to the that Council's Traveller Accommodation Programme 2005-2008.

There are about 90 people, including a large number of young children, who make up the extended Gavin family which is currently encamped on the plaintiff Council's lands, and who are seeking emergency accommodation from Fingal County Council in short term, and thereafter more permanent accommodation from Dublin City Council. This number of people comprises about thirteen distinct families.

Some background history of events:

It is acknowledged by the Gavin family that they are not historically indigenous to the functional area of Fingal County Council, but rather the functional area of Dublin City Council, since for upwards of twenty years the extended Gavin family have been tenants of Dublin City Council at a halting site at St. Dominick's Park, Coolock since it opened in 1980. However, they claim that in February 2005 they were forced out of St. Dominick's Park by another traveller family, the Quinn/McDonough family and that they went to Belfast at that time where they encamped themselves there in large numbers on a condemned site. It is claimed in evidence that it was always their intention to seek alternative traveller accommodation from Dublin City Council, since they were no longer safe in St. Dominick's Park, even though they had moved to Belfast. In November 2005 they moved back to this jurisdiction, and forcibly and unlawfully entered upon what I shall refer to as the SIAC site at Thomondtown from which the plaintiff now seeks their removal. In evidence the defendants have stated that it was felt that they would be in a better position to negotiate with Dublin City Council if they were back in Dublin rather than in Belfast.

In asserting that they are in need of emergency provision from Fingal County Council, they state that the circumstances of emergency result from their having been forced out of St. Dominick's Park in February 2005 by the Quinn/McDonough family. It was suggested to them in cross-examination that while there may have been an emergency created in February 2005, that emergency was dealt with by them by moving to Belfast, but that they moved back to the SIAC site voluntarily in November 2005, and not therefore in circumstances which can be regarded as an emergency such as to require the plaintiff council to accommodate them on an emergency basis. The plaintiff maintains that since the Gavin family is not indigenous to its functional area they have no obligation to provide traveller specific accommodation for them, emergency or otherwise.

In addition, the plaintiff council considers that in circumstances where they may be homeless and in need of housing, the defendants are at liberty apply to the plaintiff Council for emergency housing, other than traveller specific accommodation, in the same way as any other citizen in need of housing by completing the necessary application form, and that it will be considered. However, Mr Joe Murphy, who gave evidence for the plaintiff, has stated that the policy of the plaintiff Council is that only travellers who are indigenous to the functional area of the plaintiff will be allocated traveller specific accommodation, and that such applications received from non-indigenous traveller families will be "ruled out".

At any rate, in the immediate aftermath of the defendants arriving at the SIAC site on the 29th November 2005 the council visited the site to ascertain what was happening. It appears that on three or four previous occasions the Council had had occasion to move travellers who had entered that site. On the following day, as a result of what was seen, members of the Council returned on the 30th November 2007 and served notices requiring the removal of all mobile homes and vehicles pursuant to s. 10 (1)(c) of the Housing (Miscellaneous Provisions) Act, 1992 (as amended).

At this point in time at the end of November 2005 the plaintiff council in fact made an offer to the defendants to provide some alternative accommodation in its area at various halting sites. This offer was made orally but was turned down by the Gavin family since the accommodation offered was not in a single site and the extended Gavin family wished to remain as a single group in one location. The sheer size of the extended family made this impossible for the plaintiff to provide, since no sufficiently large site was available. This offer was made in spite of the Council's policy not to provide this type of accommodation to a non-indigenous traveller family.

Two days later on the 2nd December 2005 members of the plaintiff council, accompanied by members of an Garda Siochana and some contractors attended at the site to evict those present and to remove the mobile homes and vehicles, and to remove large quantities of soil and other material which had been placed as an obstruction to entry. Violent resistance was put up by the Gavin family, such that the effort to clear the site was abandoned. I will not set out the evidence given in this regard, but it suffices to say that apart from having been subjected to abusive shouting by members of the defendant family, the vehicles in which the Council staff and Gardai were travelling were hit with stones and iron bars. In addition, efforts were made by the Gavin family members to open the doors of the vehicles. I am completely satisfied that this was a very violent resistance to the plaintiff's efforts and that the decision to abandon the attempt to evict the defendants was a wise and necessary one. Since that date no further attempt has been made to remove the persons encamped there but there has been further violence by the families there towards adjoining land owners and other persons who have wanted to inspect the property, in addition to damage to property. These incidents have been very serious, and where the safety of these persons was severely jeopardised requiring such persons to abandon their vehicles and make their escape on foot to the adjoining motorway. There is no need to set out the evidence in this regard in any detail.

Once the s.10 notices were served, however, solicitors were instructed on behalf of the extended Gavin family. Messrs. Brophys, solicitors wrote to Dublin City Council (not Fingal County Council) by letter dated 30th November 2005. That letter set out a brief history of the Gavin family having had to leave St. Dominick's Park and move to Belfast due to intimidation. It went on to say that their clients now wished to return to Dublin where they have lived all their lives and where their children attend school. The letter refers to the service of notices by Fingal County Council requiring them to vacate the site and that they have been threatened with arrest and conviction in the event that they do not comply with the notices. Brophys go on to say that Fingal County Council are maintaining that it has no responsibility towards the extended Gavin family, and that they understand also that Dublin City Council was also maintaining that it was not responsible since the Gavin family was not then residing in its functional area. These solicitors then proceed to state that they had advised their clients that "the statutory duty to provide accommodation rests with Dublin City...

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