CLARE County Council, CEO Pat Dowling has explained that the recent decision by the Supreme Court requiring members of the Traveller community to vacate a site in Ennis does not mean the case has relatively limited implications, and the matter has not been concluded.
Two Ennis councillors Johnny Flynn and Clare Colleran Molloy, had motions before February’s meeting of Clare County Council seeking information.
Responding to them, Mr Dowling read a statement on the matter, before saying that the case is still ongoing and appealing that further debate not take place in the circumstances.
Mr Dowling said that he wanted to “give a very quick factual background” to the members.
He said that there have been legal issues between the Council and the people involved in the case for some time.
“As you know there is a history of litigation between the Council and Mr and Mrs McDonagh over the past five years. They initially sought to prevent the development of social housing at Ashline on the Kilrush Road in Ennis, by trespassing on that site in 2017.
“Clare County Council issued proceedings against the McDonaghs at that time, seeking to restrain them from trespassing on that site in order that the development could proceed.
“The McDonaghs counterclaimed that the Ashline site should be maintained as a Traveller group housing scheme. Clare County Council successfully obtained an order restraining the trespass on that site and McDonaghs failed in their counter claim against Clare County Council.”
The CEO added, “Having moved from the Ashline site Mr and Mrs McDonagh established a further unauthorised encampment on a nearby laneway which interfered with access to the local national school. Again Clare County Council obtained an order preventing the trespass at this location.
“From there Mr and Mrs McDonagh moved to the current unauthorised location on Clare County Council property under the flyover on the Kilrush road. Clare County Council then brought these proceedings based on trespass, breach of planning and health and safety issues.
“It’s important to note that while it took four years to get this far, this is only an interlocutory or interim application that has been heard and determined.
“During the course of this application Mr and Mrs McDonagh admit that they are trespassers and do not have planning permission allowing them to occupy the site.
“On this basis the High Court in October 2019 and the Court of Appeal in November 2020 found that the McDonaghs caravans were not a home within the meaning of Article 8 of the European Convention on Human Rights. The High Court and Court of Appeal made orders that such occupation be prohibited.
“While some of the extended family members vacated the lands Mr and Mrs McDonagh belatedly appealed the matter to the Supreme Court.
“The Supreme court has found that in preliminary application for an injunction of this nature, which is taken by an applicant which is also a housing authority the courts are obliged to carry out a proportionality test to balance what would be achieved by way of granting the injunction against any harm that might be caused to the defendants.
“The Supreme Court found that the lower courts should have taken into account the fact that these caravans constitute a home within the definition of the European Convention on Human Rights and a dwelling as defined by Article 40.5 of the Constitution such that these dwellings attract both European Court of Human Rights and Constitutional protection, albeit that such protection can be diluted by reason of the illegal nature of the application.
“The Supreme Court found that the lower courts should have carried out a proportionality test and found that there was an arguable case for the housing authority to answer in respect of the housing authority’s obligation to the defendants as members of a marginalised and socially vulnerable group.
“While the court noted that several offers of accommodation had been made by the Council to the McDonaghs there is a point still to be argued as to whether the housing authority has complied with its obligations to Mr and Mrs McDonagh as members of the Travelling community with regard to the provision of suitable accommodation. This is a matter that will be argued now before the High Court in a full hearing.”
He explained that the implications of the judgement are limited to certain instances.
“The effect of this judgement is limited to mandatory injunction applications taken by housing authorities in respect of trespass on public lands where there are no environmental issues, no interference or threat to the interests of third parties and no public safety issues.
“The case has been referred back to the High Court for a full plenary hearing with oral evidence rather than being decided on affidavit evidence which has been the situation to date.”
He said that the matter has not concluded and advised that “further debate be paused”.
Owen Ryan has been a journalist with the Clare Champion since 2007, having previously worked with a number of other publications in Limerick, Cork and Galway. His first book will be published in December 2024.