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Council v McDonagh key judgment in law of trespass

Mr Justice Gerard Hogan gave  judgment on 31 January 2022 on behalf of a  five-judge Supreme Court consisting of Dunne, O’Malley, Baker and Woulfe JJ, writes Donnchadh McCarthy BL (small picture).

His judgment concerns mandatory interlocutory injunctions against trespassers and unauthorised development.  

The normal rule (as per Keating v Jervis Shopping Centre [1997] 1 IR 512) still remains that interlocutory trespass injunctions are granted to the owner of land on proof of trespass by someone  who cannot show any entitlement to be on the land.

Planning injunctions against unauthorised development are granted upon proof of unauthorised development unless the illegal developer can convince the court otherwise (as per Meath County Council v Murray [2018] 2 IR 189).

His judgment concerns mandatory interlocutory injunctions against trespassers and unauthorised development.  

The normal rule (as per Keating v Jervis Shopping Centre [1997] 1 IR 512) still remains that interlocutory trespass injunctions are granted to the owner of land on proof of trespass by someone  who cannot show any entitlement to be on the land.

Planning injunctions against unauthorised development are granted upon proof of unauthorised development unless the illegal developer can convince the court otherwise (as per Meath County Council v Murray [2018] 2 IR 189).

Proportionality analysis

Hogan J has now clarified that before housing authorities (who will also be local authorities and planning authorities, that is city or county councils) can be granted interlocutory trespass and planning orders evicting people in housing need from their  living places, the  court  must carry out a proportionality analysis as  to the objective necessity for  the  orders  sought.

This is because those orders may deprive such persons of their  ‘home’ which they have a  right  to have respected  by  the organs of the State under Article 8 of the European Convention on Human Rights (ECHR) and will violate their ‘dwelling’ which is inviolable, save in accordance with law, under Article 40.5 of the Constitution.

Hogan J overturned a decision of the High Court (per Allen J) which had been affirmed by the Court of Appeal (per Whelan, Noonan and Power JJ),  to grant injunctions against the McDonaghs and their extended family (all Irish Travellers) who were illegally occupying the Council’s lands at Cahercallamore, with five mobile homes and three caravans, and had constructed a stone road  and a courtyard on those lands.

Hogan J focused in his judgment on case law which had determined the broad ambit of the ‘dwelling’ for the purposes of Article 40.5 as simply one’s place of residence and therefore included  the McDonaghs’ caravans and mobile homes.

Homes and dwellings

He also (contrary to Whelan J of the Court of Appeal) found that Cahercallamore was only about one km from Ashline, a Clare County Council Traveller-specific housing development where the McDonaghs had resided for years.

Therefore, he stated, it was arguable that the McDonaghs could establish that their habitations at Cahercallamore were their homes as protected by Article 8 of the European Convention of Human Rights (ECHR) as they met the test for a ‘home’ set by the European Court of European Court of Human Rights in  Winterstein v France [2013] ECHR 984 being  “specific and continuous links with a specific place”.

Review of previous case law

The judge reviewed his own previous High Court decisions in Wicklow County Council v Fortune (No.1) [2012] IEHC 406 and (No. 2) [2013] IEHC 255 where he had refused to order the demolition of a chalet built in the Wicklow forest without planning permission on the grounds that the planning authority had to justify the demolition of a constitutionally protected ‘dwelling’.

He accepted criticism of those decisions made by Kearns P in Wicklow County Council v Kinsella [2015] IEHC 229 and McKechnie J in Murray that they reversed the correct onus which requires the illegal developer to show why a demolition order should not follow on a finding of unauthorised development.

He then distinguished the case under appeal on the basis that it was an appeal from interlocutory injunctions rather than permanent injunctions such as had been at issue in Murray and Fortune and on an interlocutory application the fundamental objective “is to ensure that the least injustice is done” per dicta of Clarke J in Okunade v Minister for Justice [2012] 3 IR 132.

Ratio

Mr Justice Hogan referred to the stark consequences of the interlocutory orders sought for the McDonaghs – homelessness – and noted that their occupation of Concahermore was not causing “any immediate threat to the amenities of others, public safety, the environment generally or other pressing concerns”.

The implication being that such threat could have justified making them homeless.

Indeed, Hogan J expressly stated that he would have granted the orders sought if the McDonaghs had been on the public road, as public safety required those orders.

Solicitors take note

This judgment need not concern solicitors acting for private property owners.

However, it means that solicitors advising housing authorities whose lands are subject to trespass and unauthorised development by persons in housing need, should give careful consideration to interlocutory orders.

Solicitors should consider whether interlocutory orders would leave the trespassers with nowhere to go, and if they can be objectively justified as a proportionate response to the problems posed by the illegal occupation.

If not, then it is best not to seek pre-trial injunctions.