Tipperary County Council v Reilly and Others; Tipperary County Council v Reilly and Others
|Ms. Justice Siobhán Phelan
|03 November 2023
| IEHC 600
|RECORD NO.: 2023/6 CA
 IEHC 600
RECORD NO.: 2023/6 CA
RECORD NO.: 2023/38 CA
THE HIGH COURT
JUDGMENT OF Ms. Justice Siobhán Phelan, delivered on the 3 rd day of November, 2023
. This matter comes before me by way of two separate appeals against an Order made by the Circuit Court (Her Honour Judge Doyle) in January, 2023 (hereinafter “the 2023 Order”) giving liberty to the Plaintiff (a local authority with responsibility for housing and planning in the County Tipperary area) [hereinafter “the Authority”] to pursue enforcement of orders previously made by that Court (His Honour Judge Fulham) on the 5 th of July, 2013 [hereinafter “the 2013 Order”], almost ten years earlier. The 2013 Order was directed to the occupation, management, maintenance, and condition of lands owned by the Authority and established by it for use for group housing by members of the Traveller Community on foot of local authority tenancy agreements.
. The lands at the centre of these proceedings comprise a triangular site at Powerstown, Clonmel in the County of Tipperary. The land is located between the railway track to the north (which serves to separate the site from an extensive housing development on the other side of the track) and a dual carriage-way (the N4 Clonmel bypass) to the south. The Authority built 3x three-bedroomed cottages on the land in the 1990s. In addition to the three houses constructed by the Authority on the site, there is also a longstanding unauthorised temporary dwelling adjacent to the main site. This unauthorised temporary dwelling has been home to the same family, now comprised of two adults and their four children, for approximately nineteen years. There are several other unauthorised temporary dwellings within the vicinity of the three houses, including the dwellings of two extended family members (adult children and their spouse and children) who have established themselves on the site in more recent years and were joined to the proceedings for the purpose of the application for leave to execute the 2013 Order.
. A tenancy agreement was entered into with a number of tenants in the 1990s in respect of each of the three houses. The original tenants included the Third and Fourth Named Defendants. The tenancy agreement provided, inter alia, that the tenants will keep the dwelling in a clean and proper manner and will not permit the accumulation of rubbish (Clause 16), will not cause nuisance, annoyance or disturbance to neighbours (Clause 17) and will not keep any poultry, pigeons, greyhounds or other animals (save domestic pets which are not likely to cause a nuisance or become a source of annoyance) on the premises (Clause 18). The original tenant of 1 Railway Cottages was deceased when these proceedings commenced in 2012 but the Authority contends that the terms and conditions which applied to the letting continue to apply to the current occupants, albeit there is no evidence that a further tenancy agreement was executed.
. The proceedings commenced by Equity Civil Bill issuing on the 27 th of March, 2012. In the proceedings the Plaintiff sought injunctive and declaratory relief in respect of the Defendants' unlawful occupation of the land. Proceedings were commenced against approximately twenty named Defendants, all of whom were members of the Traveller Community in occupation of the site. Several families were resident on the site without the benefit of permission from the Authority.
. On the 5 th of July, 2013, the Circuit Court (His Honour Judge Fulham) made the 2013 Order in the following terms:
i. An Order providing that the Plaintiff its servants or agents are entitled to enter the site including numbers 1, 2 and 3 Railway Cottages and the environs covered by the map to carry out such works as may be required to the toilet and sanitary facilities at the site pursuant to the Public Health (Ireland) Act 1878;
ii. An Order restraining the Defendants from interfering with the Plaintiff, its servants or agents in carrying out the works set out at paragraph 1;
iii. An Order requiring the Defendants to remove all unauthorised structures (save residential mobile homes and caravans as provided for under paragraph 6 below) and all hoses, dogs and other animals including fowl from the site by 30 th of September 2013;
iv. If the Defendants fail to carry out the removal works set out at paragraph 3 by the said date, the Plaintiff may enter the site and carry out the said removal works;
v. An Order restraining the Defendants from interfering with the Plaintiff, its servants or agents carrying out the works set out at paragraph 4;
vi. An Order requiring the Defendants to vacate all mobile homes and caravans at the site by 31 st December 2013 subject only to the availability of housing for the occupants of same;
vii. An Order effective from 30 th September 2014 restraining the Defendants and any other persons having notice of the making of such Order from the keeping of animals on the site and entitling the Plaintiff to enter upon the site and to remove any such animals as may be kept thereon form time in breach of such Order, without further Order from this Honorable Court;
viii. An Order restraining the Defendants and any other persons having notice of the making of such Order from beginning onto the site or erecting thereon any structures of any kind without the express written permission of the Plaintiff and further entitling the Plaintiff to enter upon the site and remove any such structures as may be brought onto or erected thereon in breach of such Order, without further Order from this Honourable Court;
ix. The Court doth note the undertaking of the 12 th and 13 th Defendants, Patrick and Ellen Hutchinson, that they will note return to the site;
. The 2013 Order was made based on affidavit evidence before the Court. Evidence relied upon included the installation of several improvised toilets in the yards of the cottages without permission and the presence of a pipe through which sewage and foul water flowed down an embankment and across a public footpath onto the N24 public road. There was evidence of a significant vermin problem and the abandonment of animal carcasses at and around the site. The evidence before the Circuit Court confirmed that animals were irregularly fed and suffered neglect. It was averred that there were then 31 sheds, huts and other structures for the accommodation of animals at and around the site, all of which were erected or installed without authority and were inadequate or inappropriate for their then use. It was deposed that conditions on site gave rise to a public health risk.
. Notably, no evidence was offered by any of the Defendants who did not file affidavits at that time and did not contest the evidence offered on behalf of the Authority. The 2013 Order was expressed as being binding on the Defendants and each and every person having notice of same. There was no appeal against the 2013 Order.
. Following the making of the 2013 Order extensive clean up works were carried out on site. By November, 2013 unauthorised structures (not occupied by human inhabitants) were removed and animals were seized. Thousands of tonnes of waste had been removed. Intermittently, further clean-up operations occurred in 2017, 2018 and 2019 and works were finally carried out by the Plaintiff in 2019 to address a long-standing problem of raw sewage flowing from the unauthorised accommodation on the hill (occupied by the Fourteenth and Fifteenth Named Defendants and their family) onto the public road. Accordingly, the position of the Fourteenth and Fifteenth Named Defendants who occupy a mobile home on the site (without permission from the Authority) has been ameliorated since 2013 by the installation by the Authority of a septic tank and water supply, addressing one of the major issues identified in grounding the application for the 2013 Order.
. Over the years following the making of the 2013 Order, some of the parties originally named as Defendants moved away from the site (specifically, the First, Second, Fifth, Sixth, Seventh, Ninth, Tenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth and Twentieth Defendants) but others (notably the Notice Parties joined to the proceedings in 2021) have taken up occupation.
. By May 2021, the site was occupied by the Third and Fourth Named Defendants at 2 Railway Cottages (on foot of a tenancy agreement entered into in October, 1997), the Eighth and Eleventh Named Defendant, who are brother and sister, at 1 Railway Cottage, the Twelfth and Thirteenth Named Defendants (and their ten children) who had previously been accommodated in an unauthorised temporary dwelling on the site at the time of commencement of the proceedings but now occupy 3 Railway Cottages following the re-housing by the Authority of the previous tenants, the Fourteenth and Fifteenth Named Defendants (with their four children) who continue in occupation of a temporary, unauthorised dwelling at the site for then approximately 17 years, together with two new families from the extended family group of previous occupants, specifically Thomas and Josephine Reilly and child (occupying a caravan outside the gate of 1 Railway Cottages) and Raymond and Bridget Beer and child, occupying a caravan in the yard of 2 Railway Cottages.
. By Notice of Motion dated the 21 st of May, 2021, the Authority applied for leave to...
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