Wilkinson v Dublin County Council

• Jurisdiction: Ireland
• Judge: MR. JUSTICE COSTELLO
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 2419
• Docket Number: No. 201 JR/1990
• Court: High Court
• Date: 01 January 1991

1990 WJSC-HC 2419

THE HIGH COURT

No. 201 JR/1990

WILKINSON v. DUBLIN CO COUNCIL

MARK WILKINSON

APPELLANT

AND

DUBLIN COUNTY COUNCIL

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39(1)

O'LEARY V DUBLIN CO COUNCIL 1988 IR 150

HOUSING ACT 1988 S13

Synopsis:

CARAVANS

Travellers

Sites - Provision - Local authority - County manager - Order - Validity - Planning code - Scheme being a material contravention of development plan - (1990/201 JR - Costello J. - 7/9/90)

|Wilkinson v. Dublin County Council|

PLANNING

Travellers

Caravans - Sites - Provision - Halting site - Residential caravan park - County manager - Order - Validity - Development plan - Compliance - Local Government (Planning and Development) Act, 1963, ss. 26, 39 - (1990/201 JR - Costello J. - 7/9/90)1991 ILRM 605

|Wilkinson v. Dublin County Council|

ORDER

Validity

County manager - Travellers - Caravans - Halting site - Facilities - Provision - Proper planning and development - Material contravention of development plan - (1990/201 JR - Costello J. - 7/9/90) - [1991] ILRM 605

|Wilkinson v. Dublin County Council|

1 JUDGEMENT OF MR. JUSTICE COSTELLO DELIVERED ON SEPTEMBER 7, 1990.

2 Because of the failure of the Dublin County Council to implement its 1986 "Programme for the Settlement of Travelling People" and to supply serviced sites for members of the travelling community, a large number of travellers continue to live in the Council's administrative area in quite appalling conditions, and as trespassers on any vacant plot of land they can find for their caravans. The position has been especially severe in areas of Tallaght and Blanchardstown and the west of County Dublin. For the past six or seven years lands owned by a firm called Green Properties PLC and its subsidiaries and intended for development as a town centre for Blanchardstown have been occupied by travelling families, as many as a hundred families occupying the site at certain times. Work on the site was scheduled to begin in June of this year. Thereafter proceedings were successfully taken by Green Properties to eject the trespassing families from the lands. This development on behalf of the owners of the land was one which should have been anticipated for some considerable time. As a result, there are now added to the existing numbers living in unserviced sites approximately 65 families in 84 caravans who are obliged to wander the roads of County Dublin with no serviced sites available for them and the prospect of bitter objection from local residents if they park their caravans near existing housing developments.

3 The Council's programme, adopted in 1986, was to provide sites for an estimated 124 families on 30 sites throughout the county but little or no progress in implementing this programme has taken place. However, the Council owned land at a junction known as the Tyrrellstown Cross in Mulhuddart. Since 1989 four families of travellers have illegally occupied this site and have been allowed to remain there by the Council. The Council has now decided to develop this site to accommodate 84 caravans, including those of the 65 families from Blanchardstown. A plan was prepared, submitted to the Department of the Environment and approved by it and authorisation to spend £262,000 obtained. The area is to be developed with hard core surfaces, water points, communal toilet facilities and refuse skips. The different groups of travellers are to be separated by earthen banks to give a self-contained area to each group. It is a remarkable feature of this case that the Council does not appear to know the number of persons who will occupy the site as apparently it has not taken any census of the numbers involved or made inquiries from social workers helping the travelling community. Instead, it has made an estimate based on the average number of members in a travelling family established in a report of the Economic and Social Research Institute and it has multiplied by six the number of families at Blanchardstown, 65, and as a result estimates that the number on the site at Tyrrellstown Cross will be less than 400 people. The applicant in these proceedings contests this figure; he says that the site will provide accommodation for anything between 600 and 1,000 persons.

4 The development of the site was authorised by the County Manager by an Order of the 19th of July 1990. Proceedings challenging the validity of this Order were taken by a Mr. Owen Reid and an application for interlocutory injunction made. An Order was made by the High Court on the 20th of August 1990 restraining the Council from developing the site until a further managerial order was made specifying exactly the work to be done. This new order was made on the 22nd of August 1990. This is the order which is impugned in these proceedings. Pursuant to it the Council recommenced development on the site. It was met by the determined opposition of a number of local residents who physically obstructed its entrance. By order of this court on the 27th of August 1990 in proceedings instituted by the Council certain named persons were injuncted from interfering with the development until the 5th of September last. An application to continue the injunction until the trial of the action and an application to commit certain named persons who it was said were in contempt of the order of the 27th of August has been brought but these have been adjourned until the issue of the validity of the Manager's Order of the 22nd of August last has been determined.

5 The effect of Section 39 (1) of the Local Government Planning and Development Act 1963is that the County Council may not effect any development which contravenes materially its own development Plan. The development plan was adopted in 1983 and later varied. The applicant's case is that the Manager's Order of the 22nd of August materially contravenes the plan and is, therefore, ultra vires and void. This submission calls firstly for an examination of the Plan in its unvaried form.

6 The Plan contains a section on land use zoning, paragraph 3.4.1, whose purpose is to indicate the planning control objectives of the Council for all lands in its administrative area. Nine zones are indicated in the Plan. It has not been made clear whether Tyrrellstown Cross is in an "A" zone or in an "A1" zone but the distinction is not important for reasons I will explain in a moment. The zoning objective in an "A" zone is to protect and improve residential amenity whilst the zoning objective in an "A1" zone is to be provided for new...