McDonagh and Others v Kilkenny County Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Neill
• Judgment Date: 23 October 2007
• Neutral Citation: [2007] IEHC 350
• Court: High Court
• Docket Number: [2006 No. 443 J.R.],[No, 443 J.R./2006]
• Date: 23 October 2007

THE HIGH COURT

[2006 No. 443 J.R.]

BETWEEN

THOMAS McDONAGH, MARY McDONAGH, JOHN PAUL McDONAGH, BRIDGET McDONAGH, MARTIN McDONAGH, WINNIE McDONAGH, MICHAEL McDONAGH, MARY McDONAGH, PATRICK McDONAGH, ANNE McDONAGH

APPLICANTS

AND

KILKENNY COUNTY COUNCIL, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND, THE ATTORNEY GENERAL

RESPONDENTS

Abstract:

Constitutional law - Criminal law - Judicial review - Certiorari - Travelling Community - Served with criminal trespass - Orders - Strict Liability - Excluded defences - Whether breached rights of dwelling - Whether respondent failed in duties under Housing Acts 1966-2004 - Article 40.5 Constitution - Criminal Justice (Public Order) Act 1994, s. 19 - Housing (Miscellaneous Provisions) Act 2002 - Article 8 European Convention on Human Rights

: The applicants were members of the travelling community and were served with criminal trespass orders pursuant to the Criminal Justice (Public Order) Act 1994, as amended. The applicants refused to comply with the orders and alleged inter alia that the offence of criminal trespass was a strict liability offence, excluding the operation of various defences. The applicants alleged that the respondent was in breach of the its obligations pursuant to the Housing Acts 1966-2004 and that the orders served were in breach of the rights of the dwelling of the members of the travelling community, who asserted that their caravan homes were protected pursuant to Article 40.5 of the Constitution.

Held by O’ Neill J. that the inviolability of the dwelling did not entitle the applicants to invade the lands of another. The orders made did not breach the rights of the applicants.

Reporter: E.F.

1 JUDGMENT of Mr. Justice O'Neill delivered the 23rd day of October, 2007

2 The applicants are members of the travelling community and consist of one extended traveller family. The first named applicant was born on the 20th July, 1954 and is married to the second named applicant and they have ten children. Four of whom are still living with these applicants and are aged between 13 and 18 years of age. The third and fourth named applicants are married to each other but have no children. The third applicant is 26 years of age. The fifth and sixth named applicants are married to each other and have seven children between the ages of 13 and 2. The seventh and eighth applicants are married to each other and have no children. The ninth and tenth applicants are married to each other and have six children aged from 11 down to an infant. The applicants have always tended to travel together and as of

3 the commencement of these proceedings there were ten adults and seventeen children travelling and living together.

4 The events which gave rise to these proceedings took place at two locations or sites in County Kilkenny. The first of these was at Graiguenakill, Glenmore, Co. Kilkenny which appears to have been a picnic area owned by the first named respondent. The applicants had moved onto this site and were parked there for some time. In due course some of them moved away but the first named applicant remained. Notices pursuant to s. 19 of the Criminal Justice (Public Order) Act, 1994 as amended by s. 24 of the Housing (Miscellaneous) Provisions Act, 2002 were served on the applicants, notifying them that they had entered these lands without the due consent of the owner and directing them to leave these lands and to remove from it any object belonging to the applicants or was under their control. The first named applicant refused to comply with the direction in this notice and subsequently on the 3rd February, 2006 the applicant was arrested under s. 19(b) of the Criminal Justice (Public Order) Act, 1994, brought to Waterford Garda Station where he was charged with an offence under s. 19(d) of this Act due to his failure to move on, on the 21st January, 2006, pursuant to the direction given by a member of An Garda Síochána and to remove from the land an object, a caravan belonging to the applicant. This charge was contained in charge sheet number 462991.

5 On the 9th February, 2006 when the first named respondents were conducting works at this site to prevent unauthorised use an incident occurred involving the first named applicant, arising out of which he was arrested and brought to Waterford Garda Station and charged with an offence of obstruction of traffic. This offence is contained in charge sheet number 465849. Subsequently on the 26th February, 2006 the first named applicant left the site and removed his caravan.

6 Early in April, 2006 the applicants moved onto a piece of land at the Old Road, Dunkitt, Kilmacow, Co. Kilkenny, another piece of land owned by the first named respondent, and used as a place for the storage of road chippings. On the 7th April, 2006 a member of An Garda Síochána spoke to the applicants and they promised to move on the 11th April, 2006. On the 11th April, the first applicant informed the Gardaí that they were not going to move as they had no place to go. On the 12th April, 2006 the Gardaí served notices pursuant to s. 19 of the Criminal Justice (Public Order) Act, 1994 on six of the applicants, directing them to leave this land and remove any objects placed by them on it. On the 13th April, 2006 the applicants applied in these proceedings ex-parte to this court (Clarke J.) and obtained interim relief pursuant to O. 84, r. 20(7) preventing the first and second named respondents from taking any steps against the applicants for failure to comply with the undated notices served on them on the 12th April, 2006 pursuant to s. 19 of the Criminal Justice (Public Order) 1994. On the 8th May, 2006 this court (Peart J.) gave leave to the applicants to pursue the reliefs now sought by way of judicial review in these proceedings and continued the injunctive relief granted on the 13th April, 2006 until the termination of the application for judicial review.

THE CASE AGAINST THE FIRST NAMED RESPONDENT

7 The applicant seeks against the first named respondents an order ofcertiorariquashing the decision of the first named respondent to refuse consideration of the applicants application for accommodation as set out in a letter of the 22nd February, 2006. In addition the applicant seeks against this respondent orders of mandamuscompelling the first named respondent to perform its statutory duties under the Housing Acts 1966 to 2004 and to assess the applicants for accommodation; directing

8 the first named respondent to exercise its statutory functions in a reasonable manner and to provide suitable accommodation for the applicants as a matter of urgent priority; directing the first named respondent to give the applicants priority within the meaning of s. 9 of the Housing Act, 1988 having regard to the fact that the applicants are travellers and living in unsuitable and overcrowded conditions, some of whom are suffering from ill health. In addition the applicants seek declarations against the first named respondents to the effect that the applicants are entitled to priority within the meaning of the Housing Acts 1966 - 2004; that there is a presumption that the powers under s. 24 of the Housing (Miscellaneous Provisions) Act, 2002 will be exercised in a reasonable manner and in accordance with constitutional justice and that it is ultra vires their powers to withhold consent to the applicants remaining on lands belonging to the first named respondents at Dunkitt, Kilmacow, Co. Kilkenny; and that it is unreasonable of the first named respondents to withhold consent to the applicants remaining on the site at Dunkitt, Kilmacow, Co. Kilkenny in all the circumstances of their case and having regard to their statutory functions under the Housing Acts, 1966 to 2004 to provide accommodation.

9 In the affidavits sworn by the first named applicant it is averred that the applicants are indigenous to the South Kilkenny area as the place where they primarily live subject of course to their traveller lifestyle which took them to County Clare where the first named applicant's father lives and where he spent a good deal of his childhood and where the applicants would spend a considerable amount of time. Also the applicants travel to Roscommon where the first named applicant's wife is from and where her family are primarily located. It is the applicants case that notwithstanding their travelling lifestyle as members of the travelling community, that their base is and has been in the South Kilkenny area. As a consequence they contend

10 that they are "indigenous" to Kilkenny for the purposes of the Traveller Accommodation Programme of the first named respondents and hence the first named respondents were the local authority who had the duty under the Housing Acts 1966 to 2004 to assess their accommodation needs and to provide appropriate accommodation for them. In this regard the applicants contend that the first named respondents have failed in this duty as a consequence of which the applicants found themselves forced to camp or park on various sites in the South Kilkenny area and were living in unsanitary and unhealthy conditions due to the absence of the provision of appropriate accommodation by the first named respondents.

11 Finally having no where else to go they refused to comply with the direction from An Garda Síochána in the notices served on them on the 12th April, 2006 to leave the site at Dunkitt, Kilmacow, Co. Kilkenny and sought the protection of the court to remain there pending the determination of these proceedings.

12 They remained on the site at Dunkitt until July 2006 when they left this site temporarily to travel to Donegal for a two week vacation. When they returned from this vacation they discovered that the site had been blocked off and they were unable to gain access. The first named respondents insist in...