FAULKNER AND MCDONAGH v. IRELAND

 

 

FIFTH SECTION

DECISION

Applications nos. 30391/18 and 30416/18
Christina FAULKNER against Ireland
and Bridget MCDONAGH against Ireland

 

The European Court of Human Rights (Fifth Section), sitting on 8 March 2022 as a Chamber composed of:

 Mārtiņš Mits, President,
 Síofra O’Leary,
 Stéphanie Mourou-Vikström,
 Lado Chanturia,
 Arnfinn Bårdsen,
 Mattias Guyomar,
 Kateřina Šimáčková, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to the above applications lodged on 14 June 2018,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the European Roma Rights Centre, the Irish Human Rights and Equality Commission and the Traveller Equality and Justice Project, who were granted leave to intervene by the President of the Chamber,

Having deliberated, decides as follows:

INTRODUCTION

1.  The applicants are members of the Traveller community who complain principally about orders made under domestic planning legislation which required them to vacate a site they were illegally occupying. They complain that the domestic courts failed to assess the proportionality of those orders in accordance with Article 8 § 2 and that the proceedings were conducted with undue haste, with no provision of legal assistance at the court hearing at which the impugned orders were granted.

The FACTS

2.  The applicant in the first case, Ms Christina Faulkner, is an Irish national who was born in 1965 and lives in Limerick. The applicant in the second case, Ms Bridget McDonagh, is an Irish national who was born in 1962 and also lives in Limerick. Both applicants are represented before the Court by Ms S. Lucey of Free Legal Advice Centres (FLAC), a lawyer practising in Dublin.

3.  The Government were represented by their Agent, Mr B. Lysaght, of the Department of Foreign Affairs and Trade.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

The circumstances of the caseBackground

5.  The applicants are sisters and members of the Traveller community which since 2017 has been officially recognised as a distinct ethnic group within Irish society.

6.  The first applicant and her family lived on a halting site from March 2009 to July 2013, one of several sites for Travellers provided by Limerick City and County Council (“the Council”) under its statutory obligations to provide Traveller specific accommodation. The site was not designated for permanent accommodation.

7.  The first applicant and her family left that site in July 2013, following her daughter’s death by suicide, and travelled for a time before locating their caravans on the side of the L8075-29 road at Coonagh near Limerick City (“the Coonagh site”) in September 2013. They moved there to allow their children to attend schools in a nearby suburb. She stated that she was traumatised by her daughter’s death, her older son having died in similar circumstances. At the time of their departure in December 2017, the children, aged 16, 13 and 10, were attending a local school.

8.  The second applicant lived in private rented accommodation in Limerick City until August 2013. She then lived in a caravan on the Coonagh site with her husband M.M. and their two children. At the time of their departure in December 2017, their children were aged 21 and 16 years old. Her younger child was enrolled in a local school. Several other members of both applicants’ extended families also occupied the site during this period.

9.  In November 2017 the Council took proceedings against thirteen named defendants and other persons occupying the site (“the 2017 proceedings”), including the two applicants (see further paragraphs 14 et seq. below).

Applicants’ engagement with the housing authority

10.  After the first applicant and her family arrived at the Coonagh site in 2013, she contacted the Council, seeking housing in the surrounding area; the application was approved, and her family were placed on the housing list. The parties disagreed regarding the Council’s efforts to provide housing. The Government claimed that the first applicant had viewed and rejected a 4‑bedroom house; she stated that they were shown this house, but it was unsuitable and there was no formal offer. She accepted that she refused a three-bedroom house in March 2015, but stated that this was because, after the death of two of her children, she wanted to raise her remaining children in a safe rural area. She claimed this was the only formal offer before the 2017 proceedings commenced. The Council stated that it had also offered the family space on a halting site until other housing was available. They were also entitled to source rented accommodation, paid for by the State. The Council claimed that the first applicant had stated that she did not wish to live on a halting site or in a local authority estate. In July 2017 the first applicant provided the Council with a list of preferred areas. The Government stated that discussions between her and the Council were ongoing when the 2017 proceedings commenced. The Council, stressing the limited supply of housing, its budgetary restrictions and the competing claims of other eligible persons, argued that the first applicant’s expectations were unrealistic, that it had satisfied its statutory obligations, and that it was not required to provide her with a house of her choice in an area of her preference.

11.  The second applicant applied for social housing support in November 2014, seeking rented accommodation in Limerick City. Her application was approved, and the family were placed on the housing list but did not receive any offer of permanent accommodation. On 10 July 2017, after living conditions on the Coonagh site deteriorated, the family contacted the Council’s Homeless Action Team and secured emergency accommodation in a hotel. For three months they used the site during the day, returning to the hotel at night. The second applicant stated that this was because they could not cook at the hotel, it lacked other basic facilities and was some distance from their daughter’s school. She stated that they returned to live full-time on the Coonagh site on 29 September 2017, because of the hotel’s effects on the mental health of her husband, who suffered from depression and had previously attempted suicide. The Government maintained that the second applicant’s family still had access to the hotel when the 2017 proceedings commenced. The family were also entitled to seek rented accommodation with State support. In October 2017, they again sought emergency accommodation. This application was approved but the parties’ submissions did not clarify the outcome.

Previous enforcement proceedings

12.  The Council, as the planning authority for Limerick County, was responsible for the enforcement of planning legislation within its jurisdiction. In 2014 the Council served a warning letter on the first applicant and her husband under the Planning and Development Act 2000 (“the 2000 Act”, see further under paragraphs 43-45 below), stating that their use of the Coonagh site was an unauthorised development and requesting that they leave the site immediately. The Council then served an enforcement notice under the 2000 Act requiring them to leave the site and issued proceedings for non‑compliance in October 2014. These proceedings were repeatedly adjourned.

New Road Scheme

13.  In 2011 planning approval was granted for a new road scheme to reduce congestion around Limerick City. In June 2017, as part of the scheme, the Council designated a section of road on which the Coonagh site was located as a public road under the relevant legislation.

14.  The Council appointed a contractor on 23 June 2017. After works commenced in September 2017, the contractor encountered difficulties due to the occupation of the Coonagh site. The contractor’s safety inspection stated that large vehicles using the road were passing close to caravans with young children in their vicinity, preventing the vehicles from safely accessing and leaving the construction site, and creating a significant risk to the public and to the occupants of the site. On 2 October 2017, the contractor notified the Council that works must cease until the site’s occupants were removed, submitted a contractual claim for 531,381 euros (EUR) arising from this delay and continued to charge the Council a further EUR 10,000 for every day vehicles were unable to access the construction site.

Issue of 2017 proceedings by the Council

15.  On 14 November 2017, the Council wrote to the occupants of the Coonagh site, notifying them that their occupation was illegal and requesting that they immediately remove their caravans from the site or face legal proceedings. The applicants did not leave.

16.  On 21 November the Council filed an application for court orders under section 160 of the 2000 Act (see paragraph 46 below), preventing the applicants and the site’s other occupants from placing their caravans on the site and requiring them to remove their caravans and all other property (“the orders”).

17.  The proceedings were supported by evidence contained in three sworn written statements (affidavits) provided by officials of the Council which detailed the importance of the road scheme and the consequences, financial and otherwise, of the defendants’ illegal occupation of the Coonagh site during construction, the Council’s efforts to provide alternative accommodation, and the position of the defendants under the relevant planning legislation.

18.  On 21 November 2017, the Circuit Court granted an application by the Council to shorten the period between service of proceedings and the hearing of its application under section 160. The applicants were not notified in advance and were not present when that procedural application was dealt with. The applicants were formally notified of the proceedings and served with a copy of the application on Wednesday 22 November 2017.

Hearing of 30 November 2017

19.  On 24 November the applicants attended the Circuit Court and succeeded in having the hearing of the application against them adjourned until Thursday 30 November 2017. The court granted orders against the site’s other occupants.

20.  On 28 November 2017 the applicants sought civil legal aid from the Limerick Law Centre. They were provided with letters stating that these applications were being considered and advised to seek a further adjournment from the Circuit Court on this basis.

21.  On 30 November 2017, the applicants attended the Circuit Court unrepresented. They told the court that they had nowhere to place their caravans, stated that their children were attending local schools, claimed that they were not obstructing the road works and asked to remain over Christmas. Failing this, they sought a shorter adjournment to obtain legal aid.

22.  The judge first asked if the applicants would agree to the orders being sought rather than opposing the Council’s application. He then asked if the Council could postpone the application for several weeks, or even for a day to confirm if legal aid was available. The Council opposed any adjournment, noting the costs being incurred and the absence of other means for the contractor access to the site (see paragraph 17 above). The Council argued that it could take a year for the Legal Aid Board to make a decision on legal aid.

23.  The applicants refused to agree to the orders and the judge, based on the above considerations, decided not to adjourn. Before hearing the substantive application, the judge asked if alternative accommodation was available to the applicants. The Council described its previous offers to the first applicant (see paragraphs 10-11 above), noted that many other eligible persons were on the housing list and stated that no long-term housing was then available for her family. The Council noted that the second applicant had recently left emergency accommodation. The Council argued that the court had limited discretion to refuse the application where the defendants had not contested the fact that their use of the site was illegal.

24.  The judge concluded that the Council had proved a contravention of the planning legislation and that the applicants’ presence was obstructing the works with serious consequences for the Council. He granted orders requiring the applicants to leave the site by noon on Sunday 3 December 2017.

Hearing of 6 December 2017

25.  The applicants did not leave the site. On 1 December 2017, they contacted the Limerick Law Centre seeking to appeal the Circuit Court orders. As a decision had not yet been made on their legal aid application, they were advised to lodge their own appeal, but they were unable to identify the appropriate court office to do so.

26.  On 5 December, the Council applied to the Circuit Court seeking to bring the applicants before the court to explain their failure to comply with the orders (attachment) and, in the event they failed to provide an explanation, to imprison them for breach of the orders (committal). This application was listed for hearing on 6 December. In the interim the applicants were granted legal aid.

27.  On 6 December, the applicants appeared in the Circuit Court legally represented. They sought to suspend (stay) the orders of 30 November until their appeal was decided. They provided sworn written statements describing their circumstances and their efforts to obtain accommodation. In support of their application they argued that, as the Council had been aware of their presence when commencing works, the circumstances leading to the original application were a contrived emergency. They questioned whether an application under section 160 was the appropriate framework in which to address proportionality under Article 8 of the Convention, though they accepted that, according to domestic case-law, such questions could in principle be examined within this context (see the case-law as it stood at that point in time cited in paragraphs 47-51 below). They stated that, as they had been unrepresented on 30 November, and the proceedings had not been based on oral evidence, they had been unable to make relevant submissions and it was unfair to expect them to do so without legal assistance. They claimed that they had had good reasons for refusing previous offers of accommodation (see paragraphs 10-11 above) and that, given the shortage of Traveller specific accommodation, it was unfair to expect them to find an alternative site for their caravans in such a short time.

28.  The Council stated that the purpose of its application was to enforce compliance with the orders, that the applicants had no real grounds for an appeal, and as they had been notified of possible proceedings on 14 November, they had had been given sufficient time to seek representation. The Council argued that there was nothing in the established domestic case‑law to suggest that the Circuit Court should not have granted orders. As the applicants were not being deprived of their caravans there was no interference with their right to respect for their home under Article 8 of the Convention. The Council described in detail its previous attempts to provide accommodation and confirmed that the services of the Council’s Homeless Action Team were available to the applicants.

29.  The judge refused to grant orders of attachment and committal against the applicants, noting that such orders would be premature as they were still within time to lodge an appeal. However, he also refused to suspend the orders of 30 November until the applicants’ appeal was heard. Instead, he extended time for compliance with those orders until noon on 10 December 2017. He stated that if the applicants failed to leave by that date, and further steps were required to enforce the orders, a new application for attachment and committal would be required.

Hearing of 14 December 2017

30.  The applicants did not leave the Coonagh site. On 11 December they lodged a High Court appeal against the original orders and a separate appeal against the Circuit Court’s refusal to suspend those orders pending their substantive appeal. On 12 December the Council again applied to the Circuit Court seeking to have the applicants imprisoned for failure to comply with the original orders. As this application was listed on 15 December, the High Court agreed to hear the applicants’ appeal against the refusal of a stay on 14 December.

31.  On 13 December 2017 the Council offered the applicants emergency accommodation in an apartment, with secure parking where their caravans could be stored, but not accessible, subject to them vacating the Coonagh site.

32.  On 14 December 2017, the High Court considered the appeal of the applicants, who were legally represented, against the Circuit Court’s refusal to suspend the orders. The applicants submitted further sworn statements describing their circumstances, their efforts to obtain housing and their grounds of appeal; they claimed that they had no other site to place their caravans and that the refusal to suspend the original orders deprived their substantive appeal of any meaning. Their lawyer claimed that the orders were disproportionate, that the Circuit Court had failed to assess proportionality under Article 8 of the Convention and that, as the orders had been made based solely on written rather than oral evidence, when the applicants had been unrepresented, they had been denied a fair hearing. Asked by the High Court to address how proportionality applied to the question of whether the applicants should remain on the Coonagh site, he argued that it went to the issue of whether alternative accommodation was made available to them. He repeated their reasons for refusing previous offers and described the latest offer as too late to be relevant.

33.  In response, the Council set out the need for the development, the obstruction caused by the applicants’ illegal use of the site, and its efforts to provide accommodation. The Council argued that the applicants had not contested that their use of the site was illegal and stated that the contested orders would not result in them being made homeless, but their continued presence subjected the Council to enormous financial liability.

34.  As to the Circuit Court’s refusal to adjourn the application to confirm if legal aid was available, the High Court, noting the significant delays in the Legal Aid Board making such decisions, and the prospect of the applicants unlawfully occupying the lands pending such a decision, stated that this decision was reasonable in the circumstances of the case.

35.  In assessing the balance of convenience to the parties, the High Court first noted that the question of whether the original orders had been disproportionate had yet to be determined in the appeal, but suggested there was an equally strong argument they had been proportionate. The latter issue was assessed as follows:

“As I say, it is not in dispute that the activities of the defendants are unlawful, and it seems to me that it was certainly within the discretion of the learned Circuit Court Judge to refuse a stay on the order of the injunction that he had granted. Particularly in circumstances where to have granted a stay would be effectively for him to reverse himself and entirely negative the effect of the injunction he had granted.

So, the test I must apply is the one essential by way of assessing the balance of convenience. And it seems to me that there are a number of matters I must have regard to in considering where the balance of convenience lies in this matter.

The first is that each of the defendants who are bringing this appeal have been offered accommodation by the local authority in circumstances where they may or may not find it satisfactory. But it is certainly not a case where the making of an order effectively renders these unfortunate people homeless for Christmas. There’s no question of that arising. One family, that’s the Faulkner family, have refused two offers of accommodation; perhaps with good reason, it’s not for me to decide. And the McDonaghs are apparently living in a hotel and occasionally perhaps daily visit their caravans on this particular site. But there’s no question of these people being turfed out on the side of the road without anywhere to go for Christmas as a result of this injunction having been granted in the Circuit Court. So, that’s the first matter I have to take account of.

And, secondly, and importantly, is the fact that very substantial losses will accrue to the local authority; that’s not in dispute. If they’re not in a position to proceed with what is an essential work of important public interest in terms of the construction of a new ring road around the City of Limerick. I think I must also have regard to the fact that, I think I’m entitled to assume that the defendants will not be a mark for the undoubtedly huge damages that will occur to the local authority in the event that they are prevented from proceeding with their project.

But I think most importantly, I have to have regard to the realities of when this appeal is going to get on. And as the parties may know from being in court today, dates are now being allocated for non-jury matters which include Circuit Court appeals of this nature towards the end of November 2018.

So, in effect, if I grant a stay, that means that the Council would be entirely prevented from proceeding with their project for the best part of a year. So, what I would effectively be doing, it seems to me, is granting the defendants a veto over this project for as long as it takes for them to get the case on in this Court.

I cannot see how that could possibly be regarded as being just to the plaintiffs in this case. As I say, there is no real issue about the unlawfulness of the activities that are carried on. And it seems to me that the balance of convenience lies overwhelmingly in favour of refusing this application for a stay in the circumstances I’ve outlined. So, I accordingly refuse the application.”

36.  The judge refused to grant the applicants further time to comply with the original orders.

Subsequent events

37.  The applicants left the Coonagh site after the High Court decision and withdrew their substantive appeal. The High Court order stated that their appeal was being withdrawn, inter alia, because it was moot. The Council’s application for committal was adjourned indefinitely.

38.  The first applicant’s family initially occupied a site in Limerick City’s Dock Road. After further enforcement action they moved to a third roadside site. They refused emergency accommodation on 8 January 2018. The first applicant stated that this was because the facility was too far from her children’s schools and it was unclear how long they could remain there. On 31 January 2018, they were offered a four-bedroom house at Caherdavin, which they accepted. Their tenancy did not commence until June 2018.

39.  The second applicant’s family moved to the same site on the Dock Road and refused two offers of emergency accommodation in January 2018, the first a bed and breakfast, and the second a two-bedroom apartment. After being required to leave, they illegally occupied two further sites, leaving both after further enforcement action. In November 2018 they were approved for funding for private rental accommodation for a house in Limerick, at a level twenty per cent above the normal limit, where they remained.

Relevant domestic law and practiceBunreacht na hÉireann (“the Constitution”)

40.  Article 40.5 of the Constitution of Ireland provides as follows:

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

In Clare County Council v. Bernard McDonagh and Helen McDonagh, [2022] IESC 2, delivered on 31 January 2022, (hereafter the “McDonagh judgment”) the Supreme Court examined an appeal relating to members of the Irish Traveller community and the granting of an interlocutory order under section 160 of the 2000 Act requiring them to move their mobile homes from land they were occupying illegally. As regards the applicability of Article 40.5 of the Constitution, it held that “it is sufficient that any person asserting the protection of Article 40.5 actually resides there” (see further below).

The European Convention on Human Rights Act 2003 (“the 2003 Act”)

41.  Section 1 of the 2003 Act states:

“(1)  In this Act unless the context otherwise requires—

[...]

“organ of the State” includes a tribunal or any other body (other than the President ... or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised;”

42.  Section 2 of the 2003 Act states:

“(1)  In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”

43.  Section 3 of the 2003 Act states:

“(1)  Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.

(2)  A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.”

The Planning and Development Act 2000 (“the 2000 Act”)

44.  Section 2 of the 2000 Act defined “unauthorised development” as

“the carrying out of any unauthorised works (including the construction, erection or making of any unauthorised structure) or the making of any unauthorised use.”

45.  Section 3 of the 2000 Act defines a “development” as meaning “the making of any material change in use of any structures or other land” and states that when land becomes used for the purpose of “the placing or keeping of any vans, tents or other objects, whether or not moveable...for the purpose of caravanning or habitation” the use of the land shall be taken as having “materially changed”.

46.  Section 160 of the 2000 Act states that when an unauthorised development is being carried out, the High Court or the Circuit Court may, on the application of a planning authority, require any person to do anything that the Court considers necessary to ensure that the unauthorised development is not carried out or continued. The application must be made by motion on notice to the defendants, who must be informed in detail beforehand of the action being taken (the relief sought, the affected land or development, the identity of the applicant and the date of the proposed application) and be copied with the statements sworn (affidavits) in support of the application (Order 56, rule 3 of the Circuit Court Rules). The Circuit Court may adjourn the hearing if a defendant has not been given notice. The defendant’s replying affidavits must be filed with the court within seven days of service of the notice of motion and served on the applicant.

Relevant domestic case-law

47.  In Wicklow County v. Fortune (No. 2) [2013] IEHC 255, the High Court (Hogan J.) refused to grant an order providing for the demolition of an unauthorised dwelling because the planning authority had not shown the dwelling was completely at odds with public policy objectives:

“5.  .. It is manifest from a series of decisions ... that the exercise of any such judicial power would also have to satisfy a proportionality test, not least given that the making of such an order would, at least, in the context of a case such as the present one significantly affect constitutional rights, not least the inviolability of the dwelling (Article 40.5) and the protection of property (Article 40.3.2). Of course, the proportionality at issue here is not simply proportionality in the narrow sense ... of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, the whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.”

48.  In Meath County Council v. Murray [2017] IESC 25, the planning authority obtained a High Court order under section 160 of the 2000 Act requiring the demolition of a dwelling built without planning permission. The respondents appealed, arguing that the High Court, in exercising its discretion, had failed to apply the correct proportionality test and consider the consequences of the demolition for them. The Supreme Court (McKechnie J.) first considered whether the summary procedure involving affidavits under section 160 was inappropriate for certain types of cases:

“35.  I can see no reason in principle why the factual scaffolding of most cases cannot be adequately accommodated within the contours of the affidavit framework. Therefrom it should be readily apparent to all what area(s) of conflict, dispute or disagreement exist between the parties... If any such controversy touches upon issues of importance as to outcome, then the same can be explored by way of a viva voce examination. Indeed, if necessary, as the court has a constitutional obligation to ensure fairness and fair procedures, and as the superior courts have an inherent right to regulate their own procedures, they can be asked at any point to put in place a regime by which those objectives can best be served ... Subject to that, however, I do not see any overriding impediment or reason as to why s. 160 cannot be moved in all, or virtually all, cases where the infringement is alleged to be non-planning compliant.

[...]

38.  ... I believe that there is jurisdiction in all courts vested with authority to deal with s. 160 applications to regulate their own procedures – in the case of the Circuit Court within the relevant statutory provisions and the rules of court – so as to render that procedure compliant with constitutional norms.”

The Supreme Court set out the factors that a court may consider in exercising its discretion under section 160 where an applicant has shown that an unauthorised development had taken place:

“90.  What, then, are the factors which play into the exercise of the court’s discretion? From a consideration of the case law, one can readily identify, inter alia, the following considerations: -

(i)  the nature of the breach: ranging from minor, technical, and inconsequential up to material, significant and gross;

(ii)  the conduct of the infringer: his attitude to planning control and his engagement or lack thereof with that process: -

[...]

(iii)  the reason for the infringement: this may range from general mistake, through to indifference, and up to culpable disregard;

(iv)  the attitude of the planning authority: whilst important, this factor will not necessarily be decisive;

(v)  the public interest in upholding the integrity of the planning and development system;

(vi)  the public interest, such as: -

• employment for those beyond the individual transgressors; or

• the importance of the underlying structure/activity, for example, infrastructural facilities or services;

(vii)  the conduct and, if appropriate, personal circumstances of the applicant;

(viii)  the issue of delay, even within the statutory period, and of acquiescence;

(ix)  the personal circumstances of the respondent; and

(x)  the consequences of any such order, including the hardship and financial impact on the respondent and third parties.

93.  The weight to be attributed to each factor will be determined by the circumstances of a given case. Some, because of their importance, may influence whether an order is or is not in fact made: others, the scope, nature or effect of that order. This list is not in any way intended to be exhaustive, and it may well be that other matters might require consideration in an appropriate case... However, the above list is generally representative of the type of factors which the judge will normally be called upon to consider. It is thus an appropriate framework within which to analyse the High Court’s exercise of discretion in this case...”

49.  In finding against the respondents, McKechnie J. stated:

“129.... [T]he fact of the unauthorised development being a family home will not of itself, in my view, be sufficient to persuade a court to exercise its discretion against demolition: important to that decision will be where the building has been constructed in such a deliberate and flagrant breach of the planning laws, as in both Wicklow County Council v. Fortune and here... I believe that Article 40.5 of the Constitution does not compel me to reach any different result, and that the conclusion so reached is consistent with the ECHR and with the jurisprudence of the European Court of Human Rights... I accordingly find that the test under s. 160 of the 2000 Act does not require to be recalibrated and that it was correctly applied by the trial judge in this case.”

50.  McKechnie J concluded that all of the relevant factors, including the respondent’s connection with the area, their family circumstances, their integration into the local community and the fact that they had three school‑going children, had been properly considered. Finally he stated:

“138.  By the application of conventional principles, which is the correct approach, the decision of the judge could not be set aside on any of the grounds argued before this court.

139.  This conclusion is entirely compatible with the Strasbourg jurisprudence, as Chapman v. United Kingdom (App. No. 27238/94) (2001) 33 E.H.R.R. 18 [in particular paragraph 102].”

51.  In Waterford City & County Council v Centz Retail Holdings Ltd, [2020] IEHC 634, the High Court (Simons J.) explained:

“53.  ... As explained by the Supreme Court in Meath County Council v. Murray, the only precondition to the institution of proceedings [under section 160 of the 2000 Act] is that the local planning authority must have formed a bona fide opinion that unauthorised development is, has been or will be carried out. There is no requirement for a secondary decision, whereby the local planning authority must engage in a proportionality test. This is because the institution of proceedings does not per se determine any rights or liabilities. The proceedings are simply a vehicle to bring a complaint before the court. The ultimate decision to grant or refuse relief is a judicial function, and issues such as proportionality and urgency can be addressed by the court.”

52.  The recent McDonagh judgment, cited above, involved a case with strong legal and factual similarities to the present applications. The Supreme Court (Hogan J) considered extensively the relevant provisions and principles of domestic law and of the Convention. The appellants in McDonagh, who were also members of the Travelling community, were in illegal occupation of land that belonged to the local authority, Clare County Council. Along with members of their extended family they had placed their caravans and mobile homes on the land. It was not in dispute that this was contrary to section 3 of the 2000 Act (see paragraph 45 above), being an unauthorised development within the meaning of that legislation. In August 2018 the Council applied to the High Court under section 160 of the 2000 Act seeking interlocutory orders compelling the McDonagh family to vacate the site immediately. The High Court granted the orders sought (on 25 July 2019), a decision that was upheld by the Court of Appeal on 12 November 2020.

53.  The Supreme Court noted that the Court of Appeal had taken the view that, in light of the particular facts of the case, the appellants’ temporary dwellings did not constitute a “home” within the meaning of Article 8 of the Convention, and that it had not considered at all the relevant constitutional provision (Article 40.5, cited above). The Supreme Court emphasised the duty of the domestic courts, in proceedings that bear upon analogous provisions of the Constitution and the Convention, to properly consider and address the constitutional provision as well, rather than examining the case in light of the Convention only. It found that the appellants’ caravans attracted the protection of the Constitution as their “dwelling”. As for whether it was also their “home” within the meaning of the Convention, it considered that this was at least an arguable proposition, having regard to the relevant case‑law of the European Court. The result of the Court of Appeal’s negative conclusion on this point meant that it had not analysed the proportionality, as required by Article 8 of the Convention, of the orders granted against the appellants, beyond affirming that the actions of the Council were proportionate and fair. It was therefore for the Supreme Court to perform that analysis.

54.  The central issue in the appeal was identified as the extent to which the constitutional protection of the appellants’ dwelling was diluted by the undisputed fact that they were trespassing on the Council’s property and flouting the planning laws. According to the relevant constitutional case-law, in particular the Murray case (cited above), where a dwelling has been constructed illegally, its protection under the Constitution would generally be greatly diluted and the general presumption would be very much in favour of the enforcement of the planning laws and the demolition of the building. Moreover, where the proceedings were brought by a private landowner seeking to recover possession of their land, their property rights under the Constitution and Protocol No. 1 to the Convention would have to be weighed in the balance too.

55.  The Supreme Court then had regard to the case-law of the European Court, in particular to Winterstein and Others v. France, no. 27013/07, 17 October 2013. It observed that this precedent had not been considered in the Murray judgment and considered what difference this should make to the principles set out in the latter. It noted the different form of proceedings in the case before it compared to those decided domestically or at the European level, since it was an application for a mandatory interlocutory injunction. Such relief should only be granted where there are particularly strong and powerful reasons to do so. It should only be a stepping stone towards the trial of the merits of the case, not a means of obtaining summary judgment against the defendant. The Supreme Court further noted that, as clear from Winterstein and Others, a court must conduct a proportionality analysis before making the order sought. It considered that in one respect the approach laid out in Murray should be “re-calibrated slightly”, referring to the extent to which a court should defer to the role and judgment of the planning authorities. Therefore, as stated in Winterstein and Others, a court considering an application under section 160 of the 2000 Act must make its own independent judgment on the proportionality of the order requested. It was therefore not necessary to determine whether local authorities were themselves under an obligation to conduct a proportionality analysis prior to bringing proceedings.

56.  The Supreme Court identified two particular features of the case that merited consideration. The first was the fact that the appellants formed part of a vulnerable minority in Ireland. The second was that while the local authority had brought the proceedings in its capacity as landowner and planning authority, it also had, in its capacity as a housing authority, a specific statutory duty to offer suitable accommodation to the appellants, a duty in which it had arguably failed. That was a point to address at a later stage.

57.  Since the object of the proceedings was to obtain an interlocutory injunction, the question was whether the appellants had raised an arguable case by way of defence. The Supreme Court considered that they had, setting out the ten considerations drawn from the circumstances of the case that led it to this position (see paragraphs 106-117 of the judgment). It came to the conclusion that, at that particular juncture, the balance of convenience did not lie in favour of granting the injunction, bearing in mind the marginalised status of the appellants. Ordering them to leave the site would make them homeless with nowhere else they could lawfully go. If that were to change, however, the question of interlocutory orders might be considered differently. The Supreme Court further observed that in the present case, unlike in Murray and other domestic cases, the unlawful occupation of the land did not pose any obvious and immediate threat to the amenities of third parties or raise particular environmental concerns. Also weighing heavily against granting the injunction at that particular juncture, was the at least arguable case that the Council had not fulfilled its statutory duty to offer suitable accommodation to the appellants.

58.  The appeal was allowed, and the mandatory orders granted were discharged.

Relevant international law materialsThe Revised European Social Charter

59.  Ireland ratified the Revised European Social Charter on 4 November 2000 but has not yet ratified Article 31 (“the right to housing”). Article 16 states:

Article 16 – The right of the family to social, legal and economic protection

“With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means.”

In European Roma Rights Centre (ERRC) v. Ireland (Complaint No. 100/2013, decision on the merits of 1 December 2015) the ERRC made a complaint to the European Committee of Social Rights (ECSR) alleging both that specific legislative provisions for evictions in Ireland and the inadequate provision of sufficient Traveller accommodation breached Article 16. The ECSR found that both the insufficient provision of accommodation for Travellers and the inadequate conditions of the available accommodation were in violation of Article 16 of the Charter. The ECSR also examined complaints concerning the Planning and Development Act 2000 but found no violation of Article 16. It found that other legislation, in failing to provide for prior consultation, adequate notice or proposals for alternative accommodation before eviction, was in breach of Article 16.

Recommendation 2005(4) of the Committee of Ministers to member states on improving the housing conditions of Roma and Travellers in Europe

60.  The Recommendation provides, as relevant:

“Legal protection from unlawful evictions and the procedure for legal evictions

26.  ...In the case of lawful evictions, Roma must be provided with appropriate alternative accommodation, if needed, except in cases of force majeure. Legislation should also strictly define the procedures for legal eviction, and such legislation should comply with international human rights standards and principles, including those articulated in General Comment No. 7 on forced evictions of the United Nations Committee on Economic, Social and Cultural rights. Such measures shall include consultation with the community or individual concerned, reasonable notice, provision of information, a guarantee that the eviction will be carried out in a reasonable manner, effective legal remedies and free or low cost legal assistance for the persons concerned. The alternative housing should not result in further segregation.”

The European Commission against Racism and Intolerance (ECRI)

61.  In its report on Ireland (fifth monitoring cycle), adopted on 2 April 2019, ECRI examined the issue of Traveller accommodation[1]. It recommended that the authorities step up efforts to meet the accommodation needs of Travellers and that a solution be found to the issue of failure by local authorities to use the funding allocated for Traveller accommodation.

In an interim follow-up by ECRI in relation to the second recommendation on 3 March 2022[2], it found that “despite some encouraging developments, its recommendation has not yet been implemented”.

COMPLAINTS

62.  The applicants claim that the orders requiring them to remove their caravans from the Coonagh site constituted an interference with their right to respect for their home under Article 8 § 1, and that neither the Council nor the domestic courts carried out any examination of the proportionality of the interference in accordance with the requirements of Article 8 § 2.

63.  The applicants further claim that the domestic proceedings breached Article 6 of the Convention as they were conducted in undue haste and they were not legally represented.

THE LAW

Joinder of the applications

64.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly (Rule 42 § 1 of the Rules of Court).

Alleged violation of Article 8 of the Convention

65.  The applicants claimed that the orders requiring them to vacate the site which they were illegally occupying constituted an interference with their right to respect for their home under Article 8 of the Convention, and that the domestic authorities had not carried out an examination of the proportionality of that interference in accordance with the requirements of Article 8 § 2. Article 8 provides, as relevant:

“1.  Everyone has the right to respect for ... his home....

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

66.  Relying on Article 6 of the Convention, the applicants further complained that the domestic proceedings had been conducted in undue haste and that they had not been legally represented at the Circuit Court hearing at which the eviction orders were originally made.

67.  The Court considers it appropriate to examine the complaints raised by the applicants from the perspective of Article 8 of the Convention alone, which requires that the decision-making process leading to measures of interference be fair and that it respect the interests protected by this provision (see Connors v. the United Kingdom, no. 66746/01, § 83, 27 May 2004).

The parties’ submissions

(a)   The Government

68.  The Government raised two objections to the admissibility of the case. Firstly, referring to Rule 47 § 3.1(a) and 47 § 6(a) of the Rules of Court, they argued that the applicants had failed to provide a complete application within the six-month period as they had not provided copies of the transcripts of the domestic hearings with their original applications. As the domestic courts had not given written judgments and there had been no stenographer present, the applicants should have sought copies of the Digital Audio Record (DAR) promptly so that they could prepare transcripts to accompany their applications. An expedited procedure was available for such applications in these circumstances. The applicants had failed to provide either an adequate explanation for this failure, or any reason why a different date should be considered as the date of introduction in accordance with Rule 47 § 6(b) of the Rules of Court.

69.  Secondly, the Government argued that the applicants had failed to exhaust domestic remedies, as they had withdrawn their High Court appeal before it could be heard (see paragraph 37 above). They should have maintained that appeal, which would have led to a de novo hearing in the High Court at which they could have developed their arguments as to the question of proportionality, with the prospect of adequate redress for their complaint.

70.  On the merits of the case, the Government accepted that there had been an interference with the applicants’ “home”, within the meaning of Article 8. However, they considered that the justification for that interference – its necessity and proportionality in all of the circumstances of the case – had been adequately examined by the domestic courts, in keeping with the procedural requirements set down in the Court’s case-law. On the key question of alternative accommodation, the parties had had the possibility to make their submissions and these had been taken into account at each level of jurisdiction, both in the granting of the orders sought and in the decision not to stay their enforcement.

71.  The Government considered that the proceedings had been fair, and that it had not been inappropriate for the Circuit Court to proceed at a time when the applicants had yet to obtain legal representation. Under domestic law, where a party to proceedings is unrepresented, the court must exercise due diligence having regard to the absence of legal representation; the Circuit Court had done this. The issue of legal representation had been resolved relatively quickly in any event. Although the applicants criticised the expedited nature of the proceedings before the Circuit Court, the Government considered that this had been justified by the considerable consequences, in terms of personal safety and financial penalties for the Council, of their continuing occupation of the site at that time. They explained that the section 160 procedure was by its nature a summary one, conducted on the basis of affidavits and intended to ensure the prompt enforcement of planning controls.

72.  In any event, even were the Court to take the view that the proceedings had not afforded the required procedural safeguards to the applicants and to proceed to its own assessment of the interference, the Government maintained that the order to leave the site could not be regarded as an unjustified or disproportionate interference with the applicants’ rights under Article 8, given the illegal nature of their presence there and the above‑mentioned negative consequences of this.

(b)   The applicants

73.  The applicants claimed variously that they had provided a complete application within six months in compliance with the relevant provisions of Rule 47, that a different date should be considered the date of introduction in accordance with Rule 47 § 6 (b), and that, in any event, if they had failed to provide a complete application within the six-month period they had provided an adequate explanation in accordance with Rule 47 § 5.1(a) of the Rules of Court.

74.  The applicants explained, providing relevant details and dates, the expensive and time-consuming process for obtaining copies of the DAR, which required a formal application to the courts, and then the production of their own transcripts. They submitted that the statutory provision preventing the Legal Aid Board from representing them in the proceedings, which led to them seeking legal representation from FLAC, and the absence of reasoned written judgments or of a timely and inexpensive system for obtaining transcripts, were failures of the domestic legal system. The Government should not be allowed to rely on these to argue that the applications were inadmissible. To impose a requirement of this nature could render it very difficult for many other potential applicants to comply with the six-month rule.

75.  In response to the Government’s claim that they had failed to exhaust domestic remedies, the applicants argued that if the applicable law permitted orders to be made requiring them to leave the site and denying them a stay pending their appeal, then it was deficient per se, even had an appeal been possible. As they could not return to the site, they claimed that their appeal was moot and, under Irish law, could not have continued to hearing. They contested the Government’s claims that they were entitled to a de novo hearing, even had their substantive appeal proceeded; they maintained that the applicable legislation meant that no new evidence would ordinarily be admissible in such an appeal. Moreover, even if that appeal had been heard, it was unclear what remedy the High Court could have provided. They argued that as they had faced possible imprisonment in case of failure to comply with the orders, in the absence of a stay an appeal could not be an effective remedy.

76.  On the merits of their complaint, the applicants accepted that their occupation of the Coonagh site had been unauthorised but argued, referring to Winterstein and Others, cited above, §§ 141-142, that they had had sufficient links with the site for it to be considered their “home” under Article 8 § 1 of the Convention (see paragraphs 7-8 above). They claimed that the orders requiring them to leave the site were an interference with their right to respect for their home under Article 8 § 1 of the Convention and that the domestic authorities had failed to assess the proportionality of that interference. To begin with, the Council had not taken account of the fact that the site was their “home” within the meaning of Article 8, nor had it given any consideration to the proportionality of the orders it was seeking from the Circuit Court. By failing to require such an assessment by the local authority, Irish law was deficient in this regard.

77.  As to whether section 160 of the 2000 Act allowed the proportionality of that interference to be assessed, they noted that that provision did not expressly mandate such an assessment, but accepted that a limited assessment was possible, having regard both to domestic case‑law and the obligation imposed on the domestic courts under the European Convention on Human Rights Act 2003 Act (see paragraphs 42 and 47-51 above). However, they claimed that the scope of the courts’ discretion had not been established for persons in their position, occupying caravans.

78.  The applicants argued that they had remained on the site because they had had nowhere else to place their caravans, that the urgent necessity for their removal had arisen due to the Council’s failure to provide alternatives, that there had been no viable offer of accommodation between June 2017 and their eviction, and that the contractual penalties and other grounds put forward by the Council to justify the orders had resulted from these failures.

79.  In their view, the Circuit Court had not critically examined the Council’s submissions, engaged with the considerations set down in domestic case-law, or considered the proportionality of the alleged interference before making the original orders on 30 November 2017. They claimed that later hearings had addressed only the application for a stay of those orders and had not sufficiently considered their proportionality. Any proportionality assessment should have considered the conditions in which the eviction was to be effected, in particular the arrangements for alternative accommodation.

80.  The applicants submitted that they were from a vulnerable minority, of limited education and unable to pay for legal representation. Because of the adversarial nature of the proceedings, the complexity of the subject matter, and the hearing of evidence on affidavit, the preparation of which required legal assistance, the application on 30 November 2017 had proceeded on the basis of the Council’s evidence and submissions, and they had been unable to effectively participate. They claimed that the expedited nature of that first stage of the domestic proceedings had prevented them from obtaining legal representation and putting evidence on affidavit before orders were made.

81.  Referring to Winterstein and Others, cited above, §§ 159-160, the applicants argued that the State had a positive obligation to provide them with housing, and that, as they belonged to a vulnerable minority, the State should have given special consideration to their needs and their different lifestyle in assessing the proportionality of the orders and deciding on the timing and manner of their removal. They argued that this extended to the provision of resources to allow them to effectively defend their rights.

(c)   The third parties

82.  The Traveller Equality and Justice Project (TEJP), the Irish Human Rights Commission (IHREC) and the European Roma Rights Centre (ERRC) provided submissions. All three parties claimed that local authorities were failing to provide an adequate volume of accommodation in compliance with their obligations under domestic legislation and they criticised the inadequate and insanitary conditions of existing accommodation as well as the inadequate provision of basic services. The TEJP claimed that this shortage of Traveller-specific accommodation meant that requiring Travellers to vacate a site could amount to the practical destruction of their home.

83.  The ERRC claimed that the State was failing to adequately address the problem of racism against Travellers in Ireland. The IHREC described the high rates of infant mortality, homelessness and unemployment among the Traveller community, their lower life expectancy, low levels of education, inadequate access to public services and evidence of discrimination in access to housing.

84.  The TEJP, referring to the domestic case-law on section 160 of the 2000 Act, argued that while the Irish courts recognised the need for an assessment of proportionality, they struggled to balance the right to a home against competing interests in the context of Travellers, whose “home” was not a traditional one. The IHREC criticised the fact that the legislation does not mandate a proportionality assessment, claimed that local authorities were not required to assess proportionality before seeking orders (see paragraph 46 above) and claimed that the extent to which Irish courts could properly assess proportionality under section 160 was unclear.

85.  The IHREC criticised delays in access to legal aid and the absence of a dedicated system for persons faced with eviction, particularly Travellers, given their status as a vulnerable minority. It criticised the use of expedited proceedings, which led to orders being made before legal representation could be obtained.

The Court’s assessment

(a)   The Government’s objections

86.  Regarding the Government’s argument that the application should be regarded as out of time, the Court notes that the applicants lodged their applications on 14 June 2018, that is to say within six months of the final domestic decision, which was given on 14 December 2017. They were instructed by the Registry to provide certain additional elements, including transcripts, in order to complete the file before its examination was commenced. In the course of further correspondence, additional time was allowed for the applicants to submit all of the relevant transcripts. This was eventually done by 27 March 2019. The applicants have explained their limited resources, the need to obtain new legal representation after the proceedings ended, the absence of published judgments or official transcripts, and the procedure required to obtain the latter. The Court sees no reason to reconsider the acceptance of the applications which was based on the fact that the applicants had provided an adequate explanation (Rule 47 § 5.1 (a)) for why they did not initially comply with Rule 47 § 3.1 (a). It follows that 14 June 2018 is to be considered as the date of the introduction of the application (Rule 47 § 6(b)) and that, therefore, the Government’s objection regarding the six months’ time limit, raised under Article 35 § 1 of the Convention (as it stood at the relevant time), must be rejected.

87.  As to the exhaustion of domestic remedies, the Court would observe, first, that the submissions in this case were made some time before the Supreme Court delivered its McDonagh judgment, and therefore referred to the domestic case-law relating to section 160 of the 2000 Act as it stood at that time. What the McDonagh proceedings confirm is that for a case such as the present one, i.e. in which a local authority seeks interlocutory orders compelling members of the Traveller community to vacate an illegally occupied site, a remedy is available before the domestic courts. As held by the Supreme Court, in such circumstances an application by a local authority cannot be granted without a formal proportionality analysis by the competent court. In so holding, the Supreme Court paid close attention to the principles set down in the case-law of this Court, and the thoroughness with which the Supreme Court itself examined the proportionality of the requested orders speaks strongly for the effectiveness of that remedy.

88.  In light of this, it might be considered that Government’s objection under Article 35 § 1 should be accepted, bearing in mind that the applicants, in contrast to the appellants in McDonagh, took their case no further than the High Court, and even then only in the form of an appeal against the Circuit Court’s refusal to stay the implementation of the orders requiring the applicants to leave the site in question. Following the High Court’s decision on that appeal, their appeal against the orders as such was not pursued.

89.  The Court recalls here that the requirement to exhaust domestic remedies is a fundamental feature of the convention system, and refers to the well-established principles of its case-law in this respect (see O’Sullivan McCarthy Mussel Development Ltd v. Ireland, no. 44460/16, § 79, 7 June 2018, with further references). States are exempted from answering before an international body for their acts until they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances.

90.  In the present case, the Court considers that the question whether or not the applicants sufficiently exhausted domestic remedies can be left open since, for the reasons set out at some length below, it finds that the case must in any event be rejected as inadmissible.

(b)   Whether there was an interference with the applicants’ “home”

91.  The Court observes that whether or not a particular premises constitutes a “home” – an autonomous concept under the Convention – and thus attracts the protection of Article 8 § 1 will depend on the existence of sufficient and continuous links with a specific place (see, among others, Winterstein and Others, cited above, § 141). Furthermore, whether a property is to be classified as a “home” is a question of fact and does not depend on the lawfulness of the occupation under domestic law (see Hirtu and Others v. France, no. 24720/13, § 65, 14 May 2020 and the authorities cited therein). At the time of their departure in 2017, both applicants and their families had been living on the Coonagh site for over four years and their children had been enrolled in local schools. The Court thus considers in light of the circumstances of this case that the Coonagh site can be viewed as the site of the applicants’ home at the relevant time. Accordingly, and the Government did not dispute this, the orders requiring the applicants to vacate the site constituted an interference with their right to respect for their home.

(c)   Whether the interference was “in accordance with the law”

92.  The Council’s application was made under section 160 of the 2000 Act and the relevant Circuit Court Rules, which provide for the court to grant the relevant orders where an unauthorised development has been carried out. The applicants did not contest that their use of the site was unauthorised. The Court is satisfied that the application of these provisions was sufficiently clear and foreseeable and that the impugned measure was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. The criticisms made by the applicants and the third parties of the domestic legal framework will be considered under sub-section (e) below.

(d)   Whether the interference pursued a “legitimate aim”

93.  The Court accepts, as argued by the Government, that the orders pursued the legitimate aims of public safety, in the sense of ensuring the personal safety of all those present on the site, and the economic well-being of the country through the improvement of the road network.

(e)   Whether the interference was proportionate to the legitimate aims

(i)      Relevant general principles

94.  An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among many other authorities, Winterstein and Others, cited above, § 147, Yordanova and Others, cited above, § 117, and Chapman v. the United Kingdom [GC], cited above, § 90).

95.  A margin of appreciation must be left to the national authorities who, by reason of their direct and continuous contact with the vital forces of their countries, are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right at issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The following points emerge from the Court’s case-law (see Yordanova, cited above, § 118 (i)-(iv), with further references):

(i)  In spheres involving the application of social or economic policies, including housing, the Court affords the authorities considerable latitude. The Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation”.

(ii)  On the other hand, the margin of appreciation left to the authorities will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of fundamental or “intimate” rights. This is the case in particular for Article 8 rights, which are rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community.

(iii)  The procedural safeguards available to the individual will be especially material in determining whether the respondent State has remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8. The “necessary in a democratic society” requirement under Article 8 § 2 raises a question of procedure as well of substance.

(iv)  Since the loss of one’s home is a most extreme form of interference with the right under Article 8 to respect for one’s home, any person at risk of being a victim thereof should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, he has no right of occupation. This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons (see also, in this regard, Winterstein and Others, cited above, § 76).

96.  In considering whether an eviction is proportionate, the Court will take account of whether the home was lawfully established. If the home was lawfully established this factor will weigh against the legitimacy of requiring the individual to move. Conversely, if the home was established unlawfully, the position of the individual is less strong. If no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation. The evaluation of the suitability of alternative accommodation is a task that will involve consideration of the situation and particular needs of the persons concerned as well as the needs, rights and interests of the local community. In respect of this task it is appropriate to give a wide margin of appreciation to national authorities who are evidently better placed to make the requisite assessment (see Chapman, cited above, §§ 102-104).

97.  The Court has stated that although the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws intended to safeguard the assets of the community as a whole, it may have an incidence on the manner in which such laws are to be implemented. The vulnerable position of Roma and Travellers as a minority means that some special consideration must be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases (see Chapman, cited above, § 96; Connors, cited above, § 84, and Hirtu and Others, cited above, § 70). To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the way of life of the Roma and Travellers (see Chapman, § 96).

98.  The Court would recall, however, the limits it has identified in its case-law on the scope of Article 8 of the Convention. It has held that this provision does not recognise, as such, a right to be provided with a home (see Ghailan and Others v. Spain, no. 36366/14, § 53, 23 March 2021, and further references therein), nor does it confer a right to live in a particular location (see Garib v. the Netherlands [GC], no. 43494/09, § 141, 6 November 2017, and further references therein), or guarantee the right to have one’s housing problems solved by the authorities, as the scope of any positive obligation to house the homeless is limited (see Hudorovič and Others v. Slovenia, nos. 24816/14 and 25140/14, § 114, 10 March 2020).

(ii)    Application to the present case

99.  The Court will first consider the arguments of the applicants, supported by the third parties, regarding the domestic legal framework as such. The criticism was made that section 160 does not require local authorities to make their own assessment of the proportionality, in terms of Article 8, of the measures sought when they apply to the courts under this provision. However, as the domestic courts have clearly stated, an application is merely a vehicle to bring a complaint before the courts; it does not in itself determine rights or liabilities. It falls to the competent domestic court to examine whether there has been a breach of the planning laws and then, having regard to the non-exhaustive list of considerations identified in domestic law, to decide whether or not to exercise its discretion to grant orders (see paragraphs 51 and 55 above). The decision to grant or refuse relief is a judicial function and the courts are under a general obligation, by virtue of Section 2 of the 2003 Act, to interpret domestic law, insofar as is possible, in accordance with the Convention (see paragraph 42 above). A person at risk of losing their home on account of proceedings brought under this statutory provision must be able to have the proportionality of the measure determined judicially, in keeping with the requirements of Article 8. Accordingly, the Court does not consider this specific criticism to be justified.

100.  It was also argued that when it came to Travellers residing in caravans and occupying sites illegally, the scope of the domestic courts’ discretion had not been clearly established, that in the absence of a clear statutory mandate to assess proportionality the extent to which the courts could do so properly under section 160 remained unclear, and that in practice the courts struggled to do so when proceedings are brought against Travellers with non-traditional “homes”. The Court notes that the domestic case-law which has been drawn to its attention by the parties derives from cases involving illicitly constructed dwellings, rather than, as here, the illicit occupation by caravans of a site owned by the local authority. However, it is clear that some of the factors enumerated by the Supreme Court in the Murray judgment are relevant to a situation such as that of the applicants (see paragraph 48 above). In that judgment the Supreme Court indicated the need to apply Convention principles and referred to relevant case-law of this Court, namely the Chapman case (at paragraph 49 above). The effect of section 2 of the 2003 Act can be noted here too. The Court is therefore not persuaded by the criticisms that have been levelled against the domestic law as such. Indeed, the Court notes that the domestic case-law relied on by the respondent State in its written submissions is precisely that relied on by the Supreme Court in its recent McDonagh judgment, cited above, where, referring in detail to the case-law of this Court on Article 8, the Supreme Court confirmed the need, in a case involving section 160 of the 2000 Act and illegal occupation of local authority land, for a formal proportionality assessment regarding the objective necessity for making the orders sought by the council.

101.  The Court must next consider whether the applicants benefitted from sufficient procedural safeguards and whether the decision-making process followed in this case was fair and such as to afford due respect to their rights under Article 8. The applicants complained that the expedited nature of the proceedings and the lack of legal representation in the hearing of 30 November 2017, when the orders were first made, prevented them from making relevant arguments, submitting evidence, or effectively participating, and that the limited remit of the later hearings meant that these deficiencies were not remedied. The Government maintained that the Circuit Court judge was mindful of the disadvantage faced by the applicants on that date. The Court acknowledges that the applicants were directly heard in court on that occasion and so were able to explain to the judge their disadvantaged personal circumstances. Nevertheless, it is difficult for the Court to accept that, lacking legal representation, the applicants were in a position to participate effectively in that first phase of proceedings, which relied on sworn written statements as evidence and were adversarial in nature. As the Court has stated previously (see paragraph 97 above), the marginalised status or vulnerable nature of the party opposing the prospective interference with their “home” cannot be overlooked.

102.  Furthermore, based on the transcript of that hearing, it does not appear that the Circuit Court explicitly assessed the proportionality of the orders being sought. In particular, while the Council advanced its reasons for seeking the applicants’ removal and presented evidence of previous offers of accommodation, there is no sign that the question of whether any alternative accommodation was available at that point in time was actually considered. In this respect too, based on the material available to it, the Court has considerable doubts about whether the applicants benefitted from a key procedural safeguard, namely the taking into account of all aspects going to the proportionality of the interference with their right to respect for their homes, when the matter was first brought before the Circuit Court.

103.  However, in determining whether the required proportionality assessment was in fact undertaken at domestic level, and whether the proceedings were fair overall, the Court considers that it can examine them in their entirety (by analogy with Article 6; see, among many other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 197, ECHR 2012). The disadvantage to the applicants due to the initial lack of legal representation was almost immediately overcome when they were granted legal aid some days later. They were then in a position to effectively assert their interests in the proceedings that followed before the Circuit Court again (application to stay enforcement of the orders) and then before the High Court. As indicated above, the Circuit Court refused to grant a stay on 6 December 2017, but it did allow some additional time for the applicants to leave the site. It was the applicants’ appeal against the refusal of a stay that was subsequently heard in the High Court on 14 December 2017.

104.  It is true that the scope of these proceedings was somewhat narrow, since the High Court was called on to examine the manner and timing of the applicant’s departure from the site, rather than the justification for it, which would have been for further proceedings to determine had the applicants not withdrawn their substantive appeal. However, the Court considers that the key point at issue between the parties on that date was precisely whether the factors relied on by the local authority to seek their immediate departure from the site should prevail over the interests of the applicants in being allowed more time to find, or to be allocated, suitable alternative accommodation. It was from this angle that the applicants’ counsel made submissions on proportionality at the High Court hearing.

105.  The Court can therefore accept that the scope of the proceedings before the High Court was not inadequate. It was open to that court to make its own assessment whether, given all of the circumstances and in light of the submissions made on behalf of the applicants, it would be justified to postpone the enforcement of the orders granted by the Circuit Court.

106.  The judge reached his decision on that issue by means of a balancing exercise. Admittedly, given the nature of those proceedings, it was not as detailed as it would have been had the applicants pursued their case on the merits. However, the Court notes that the High Court sought to establish where the balance of convenience lay in relation to the enforcement of the orders. The essential interests in play were identified, that is to say the applicants’ prospects as they stood on that date for alternative accommodation, the substantial losses that would accrue to the local authority from the delay, and the other important public interest in the improvement of the local road system. The judge also reckoned with, and gave weight to, the significant period of time that would elapse, realistically, before the applicants’ appeal against the merits of the orders could be heard and the inevitable repercussions this would have on the new road scheme. From all the different factors just listed, and from the unlawful character of the applicants’ occupation of the site, he concluded that the balance of convenience was against them.

107.  It is true that the applicants did not in the end obtain a full and substantive review of the orders granted by the Circuit Court. However, the Court cannot lose sight of the fact that this was because the appeal they lodged against these orders was ultimately not pursued. The Court has expressed misgivings, though, about the first hearing before the Circuit Court, judged against the requirements of Article 8 of the Convention, misgivings which are amplified in the light of the Supreme Court’s approach in McDonagh, cited above. Where the procedural safeguards formally available to applicants are weakened in practice, the relatively broad margin of appreciation open to States in cases of this nature may be reduced (see paragraph 95(iii) above). However, in view of the facts of this case (assessed below), and given that the proportionality of the interference was examined judicially, the Court does not consider that it should draw, on this basis alone, a negative inference regarding whether the respondent State remained within its margin of appreciation.

108.  This brings the Court to the last stage in its analysis, where it must make the final evaluation of the conformity of the measures taken in relation to the applicants with the requirements of the Convention (see paragraph 94 above). It would clarify that it is not its task to sit in appeal on the merits of the orders obtained by the Council, or on the decision taken by the High Court (see Chapman, cited above, § 114). Rather, it must verify whether it can be said that the domestic authorities acted within their margin of appreciation.

109.  Having regard to its case-law (see paragraph 95(i) and (ii) above), the Court first notes that the interference arose in the context of road works, the importance of which for the local community was affirmed by the domestic courts as well as by the Government in the present proceedings. This clearly pertains to the sphere of social and economic policy, indicating that, as a point of departure at least, a broader margin of appreciation should be allowed. In addition, the Council’s intervention had also been dictated by considerations of public safety, both for the children and adults living on the Coonagh site and the construction workers seeking to carry out their tasks without harming either.

110.  Furthermore, a key issue in the consideration of the case before the domestic courts was whether suitable alternative accommodation was available to the applicants and their families. As this necessarily bore upon the resources, both physical and financial, available to the local authority, and as the allocation of such resources also pertains to the sphere of the respondent State’s social policy affecting many claimants, this too indicates that a broader margin of appreciation should generally be allowed.

111.  The implications for the applicants’ enjoyment of their protected rights must also be taken into account. Here the Court would observe that the applicants’ occupation of the site was unlawful. While it has accepted that it was their “home” for the purpose of triggering the protection of Article 8, it has held in its case-law that where a home is unlawfully established, the person’s position is less strong (see paragraph 96, above). Moreover, the applicants have not argued that they should have been permitted to remain indefinitely on the site; their complaint relates to the difficulties caused to them when they were required to move on at short notice in the absence, in their view, of satisfactory alternative accommodation.

112.  The Court takes note of the critical remarks made by the three intervening parties in this case regarding the adequacy of accommodation or sites made available to the Traveller community, despite the statutory duties on local authorities in Ireland in this regard. The well-documented disadvantages suffered by the members of this social group have been referred to, as have continued concerns about persistent shortcomings in meeting their housing needs (see paragraphs 59 and 61 above). As stated previously, in its case-law the Court has recognised the vulnerable position in society of Roma and Travellers and has recognised the need for national authorities to give special consideration to their needs and different lifestyle (see paragraph 97 above). In this respect, the efforts made by the local authority to secure alternative accommodation for the applicants are to be taken into account. These efforts preceded the events at issue in the case, although the parties have offered divergent assessments of them. They continued during the domestic proceedings, it being indicated to the High Court that emergency accommodation was available, so that the applicants were not facing a situation of homelessness in mid-winter. The efforts continued after the proceedings as well, with further offers of emergency accommodation the following month, that were not accepted, and eventually a solution for each family that saw them in new accommodation in, respectively, July and November of 2018.

113.  The Court would clarify that it is not its task in these proceedings to determine the nature and extent of a local authority’s duty under Irish law to provide accommodation, or whether the local authority fulfilled its duty in this respect towards the applicants. Bearing in mind the limits to the scope of Article 8 when it comes to the provision of accommodation (see the cases referred to at paragraph 98 above), the Court’s competence is limited to ruling on the compliance by the respondent State, having regard to the actions of the local authority and the judicial authorities, with the requirements of Article 8 as they arose on the facts of this particular case.

114.  In conclusion, in light of the material provided to it, the Court has no basis to regard the means employed to achieve the legitimate aims pursued as disproportionate to those aims. It can therefore be accepted that, with respect to the complained of interference with the applicants’ rights, the authorities of the respondent State remained within their margin of appreciation.

115.  Regard being had to the above, the Court finds that the facts of the case disclose no appearance of a violation of Article 8. The application is accordingly inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 31 March 2022.

 

 Victor Soloveytchik Mārtiņš Mits
 Registrar President

[1] CRI(2019)18.

[2] CRI(2022)02.

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