Supreme Court upholds travelers’ family eviction appeal

The Supreme Court has overturned a decision to grant Clare County Council orders requiring members of the Irish Traveler community to vacate lands on which they had resided for several years.

The council had obtained a High Court injunction requiring Bernard and Helen McDonagh, and their family members, to vacate council owned land in Cahercallamore, Ennis, Co Clare immediately.

The mandatory injunction, granted in 2019, was to remain in place pending the outcome of the full hearing of the dispute. The injunction was upheld on appeal by the Court of Appeal in 2020.

However, the Supreme Court has agreed to hear McDonagh’s appeal, and in a judgment delivered today, the five-judge tribunal, consisting of Madam Justice Elizabeth Dunne, Justice Iseult O’Malley, Judge Marie Baker, Judge Seamus Woulfe and Judge Gerard Hogan ruled that the mandatory interlocutory injunction should not be allowed.

Giving the court’s ruling, Judge Gerard Hogan said the lower courts erred in their rulings that the McDonaghs failed to raise a fair case in the context of the injunction application.

The Irish Human Rights and Equality Commission was an amicus curiae or friend of the court in the proceedings before the Supreme Court.

The McDonaghs had previously lived in a traveller-specific development known as Ashline, close to the lands subject to the proceedings, between 1998 and 2012.

This development was destroyed by fire.

They then lived in private rental accommodation until 2017, when they moved their caravans and mobile homes to land near the Ashline site.

Seeking the injunction, the council claimed the McDonaghs were not only unlawfully occupying what is a site of green land, but had also breached the Planning and Development Act 2000 by building an unauthorized development under the form of a stone road and a “courtyard” between the houses.

Giving the court’s ruling, Justice Hogan said that 100 years after the state was established, a distinct group – the Irish Traveler community – remains a vulnerable minority on the fringes of Irish society.

Members of this community fought for recognition of their own cultural identity and way of life, he said.

While any objective observer would agree that there was wrongdoing on both sides, the fact remains that the legal system has not found it entirely easy to accommodate the distinct cultural traditions of the travels within its traditional framework of protecting and enforcing property rights, enforcing laws prohibiting trespassing, and laws designed to give effect to legitimate planning, zoning, and environmental concerns.

“This case illustrates many of these difficulties,” he added.

The site on Kilrush Road in Ennis where Bernard and Helen McDonagh live

The judge said those who illegally occupy land or engage in unauthorized development can still enjoy constitutional protection.

The force of this protection “is strongly diluted” because there remains a strong presumption in favor of the application of planning laws.

What the court had to consider in this case was whether that presumption could be rebutted.

This case involved a request for a mandatory interlocutory injunction, which should be “a stepping stone to trial and not, in practice, treated as a means of obtaining summary judgment.”

He said that when conducting a proportionality analysis in the context of a binding interlocutory order, a court need only be satisfied that there are factors which raise a legitimate question as to whether such an order would be disproportionate.

A factor to be taken into account in this case was that the rights of a vulnerable minority group who fought for recognition of their cultural identity and way of life, in particular with regard to planning law and the land use, had been raised.

Another critical factor was that the case concerned a claim brought by a council in its role as landowner and planning authority.

In this regard, the McDonaghs raised an arguable point that the council had failed in its duty as housing authority to provide them with suitable accommodation, having regard to Mrs McDonagh’s medical needs and the fact that the accommodation previously proposed had raised “compatibility issues”.

The judge said that if a mandatory interlocutory injunction were to be granted, the McDonaghs would have nowhere to go without necessarily encroaching on another party’s land.

Normally, a council would be entitled to orders prohibiting trespass and unauthorized use of its land, he said.

However, in this case, the appellants had raised valid defenses at this stage and that the mandatory interlocutory injunction should not be abandoned.

The judge said the court’s decision might have been different if the illegal occupation and unauthorized development posed an immediate threat to the amenities of others, public safety or any other similar pressing consideration.

Moreover, if the situation had involved a purely private party, as opposed to a public authority, then the case for granting the order in question “would have been almost unanswerable”.

Counsel, however, was not such a party and therefore different considerations had to be taken into account in determining whether to grant such relief.

FLAC welcomed today’s judgment.

General Counsel Sinéad Lucey said they had been raising concerns about the fairness of the summary eviction of families of homeless travelers for several years.

“The decision in Clare County Council v. McDonagh finally clarifies that housing protection under the Constitution extends to travelers living on unauthorized sites and that the courts must also take into account, where appropriate, the jurisprudence of the European Court of Human Rights rights,” she said.

“The recognition of Travelers as a vulnerable minority by the court is also extremely important because it imposes a particular obligation on the courts to take their situation into account when faced with a request for effective eviction from a site not authorized.”

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