Communicated on 25 August 2020
Published on 14 September 2020
FIFTH SECTION
Applications nos. 30391/18 and 30416/18
Christina FAULKNER against Ireland
and Bridget MCDONAGH against Ireland
lodged on 14 June 2018 and 14 June 2018 respectively
STATEMENT OF FACTS
1. 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 lives in Limerick.
2. Both applicants are represented before the Court by Ms Sinéad Lucey of Free Legal Advice Centres (FLAC), a lawyer practising in Dublin.The circumstances of the case
3. The facts of the case as submitted by the applicants may be summarised as follows.Background
4. The applicants are sisters and members of the Traveller community.
5. The first applicant and her family occupied a bay on the Long Pavement Temporary Halting Site from March 2009 to July 2013, one of several halting sites provided by Limerick City and County Council (“the Council”) under its obligations to provide Traveller specific accommodation under the Traveller Accommodation Act 1998.
6. The first applicant states that her family moved from the Long Pavement Site to live in caravans on the site on the side of the L8075-29 road at Coonagh on the outskirts of Limerick City (“the Coonagh site”) in July 2013. Before the domestic courts the Council contended that the family lived elsewhere for several months and arrived at the Coonagh site in September 2013.
7. The first applicant lived in a caravan on the Coonagh site with her husband Mr J.F. and their three children, W.F., C.F. and M.F., between 2013 and December 2017. At the time of their departure from the site the children, aged 16, 13 and 10, were attending a school in Caherdavin, an adjacent suburb of Limerick City.
8. The second applicant lived in a caravan on the Coonagh site with her husband Mr M.M. and their two children, J.M. and C.M., between 2013 and December 2017. At the time of their departure from the site J.M. was 21 years old and C.M. was 16 years old.
9. In November 2017 the Council took proceedings against thirteen named defendants and other unidentified persons occupying the Coonagh site. The named defendants included the applicants, their husbands, Ms S.M., the second applicant’s daughter, who lived with her husband and three children, Mr M.M. Senior, the second applicant’s son and his wife Ms M.M. who lived there with their young son.Applicants’ engagement with the housing authority
10. After the first applicant’s family arrived at the Coonagh site she made contact with the Council, being the housing authority for Limerick County, to seek housing in the Caherdavin area. The family was placed on the housing list. They declined an initial offer of a house in an estate in Caherdavin as the first applicant believed the house was unsuitable for the family. In 2015 the Council identified a second house for the family. The Council claims that the first applicant also rejected this house but she denies that any formal offer was made. She stated that she had concerns about the safety of the surrounding area for children. In 2015 the family complained unsuccessfully to the Ombudsman of the Council’s failure to provide housing. After the 2017 proceedings commenced the Council continued to offer the family a bay in a Traveller specific accommodation site until other housing was secured. The Council’s affidavit before the Circuit Court stressed the limited availability of housing, the Council’s budgetary restrictions and the competing claims of other eligible persons. The Council believed that the family did not wish to live in Traveller specific accommodation and that their expectations for housing were not realistic. The family were also entitled to obtain financial support if they chose to live in private rented accommodation. The Council argued that it had complied with its legal obligations under the housing legislation and that it was not required to provide the family with a house of their choice in an area identified by them.
11. The second applicant’s family were placed on the housing list in 2014. When the proceedings commenced they had not yet received an offer of long-term accommodation. In July 2017 the family presented to the Council’s Homeless Action Team and were offered emergency hotel accommodation. For three months the family lived between the hotel and the Coonagh site, returning to live full-time at the site on 29 September 2017. The second applicant’s husband suffered from severe mental health problems and had made several suicide attempts. She stated that their decision to leave the hotel was motivated by the effects of the hotel on her husband’s health. Shortly thereafter they submitted medical information and their application for emergency accommodation was approved on 23 October 2017.Previous enforcement proceedings
12. The Council is also the planning authority for Limerick County for the purposes of the Planning and Development Acts, responsible for the enforcement of planning legislation in its functional area.
13. In February 2014 the Council served a warning letter on the first applicant and her husband under s. 152(1) of the Planning and Development Act 2000 (“the 2000 Act”) stating that the occupation of the Coonagh site was an unauthorised development and requesting that they leave the site immediately. In April 2014 the Council served an enforcement notice under section 154 of the 2000 Act requiring the family to leave the site. The Council issued proceedings against them for non-compliance in October 2014. Those proceedings were before the District Court in November 2014 but were repeatedly adjourned. At the time the Council commenced proceedings in November 2017 it does not appear that further steps had been taken in the earlier proceedings by either party.Coonagh to Knockalisheen Road Scheme
14. In 2011 planning approval had been granted for a new road scheme to reduce traffic congestion on the northern perimeter of Limerick City. As part of the road scheme, on 19 June 2017 the Council made a decision to designate a 1,000 metre section of the L8075-29 road, including the Coonagh site, as a public road under s. 11 of the Roads Act 1993.
15. The Council appointed a contractor on 23 June 2017 and works commenced in September 2017. The contractor soon encountered problems due to the occupation of the Coonagh site. A safety inspection carried out by the contractor stated that large vehicles using the road were passing in close proximity to caravans on that site with young children playing in their vicinity. The contractor claimed that the occupants of the site prevented vehicles from safely accessing and leaving the construction site, creating a significant risk to the public.
16. On 2 October 2017 the contractor notified the Council that works must cease until the occupants of the Coonagh site were removed. The contractor submitted a contractual claim against the Council for 531,381 euros (EUR) arising from the delays caused by the occupation of the Coonagh site and continued to charge the Council a further EUR 10,000 for every further day during which they were not able to safely access the construction site.Issue of proceedings by the Council
17. By letter of 14 November 2017 the Council notified the occupants of the Coonagh site that their occupation of the site was illegal and requested that they immediately remove their caravans and property from the site or face legal proceedings.
18. On 21 November the Council issued Circuit Court proceedings against thirteen named defendants and any other persons unlawfully occupying the Coonagh site. In those proceedings the Council sought injunctions under section 160 of the 2000 Act compelling the defendants to remove their caravans, vehicles and all other property from the site. The applicants were named as the second and fifth defendants in those proceedings and their husbands were also defendants.
19. The proceedings were grounded on three separate affidavits sworn by officials of the Council.A senior engineer of the Council described the importance of the road scheme, the necessity for the use of the L8075-29 road for the its construction and the obstruction caused by the defendants’ presence on the Coonagh site, which prevented the Council from completing the scheme and led to serious financial losses.A second official from the Council’s housing section described the Council’s attempts to provide accommodation for the defendants, as set out above.A third official from the Council’s planning section set out the relevant legislation. He stated his belief that the defendants’ occupation of the site was an unauthorised development within the meaning of the Planning and Development Act 2000 and that the defendants were obstructing the works from being carried out by the contractor, preventing the Council from exercising its functions and fulfilling its statutory and contractual obligations.
20. Further affidavits were sworn and submitted by the parties at later stages of the proceedings.
21. On the day proceedings were issued, Tuesday 21 November 2017, the Council made an ex parte application to the Circuit Court to abridge the notice period required between service of proceedings and the date fixed for the hearing of the application, so that the application could be heard on Friday 24 November. That application was granted. Proceedings were served on the applicants on Wednesday 22 November with the hearing date set for Friday 24 November.Hearing of 24 November 2017
22. The hearing of the Council’s application was listed before a judge in the Circuit Court. In the interim, the applicants approached a private solicitor seeking legal representation, but he refused to act for them as they could not pay his fees.
23. Four of the named defendants, including the two applicants and the second applicant’s daughter and daughter-in-law attended the first hearing without legal representation. Immediately before the hearing, they approached Mr D., a solicitor in court for other matters, who agreed to take instructions solely for the purposes of seeking an adjournment on their behalf. He told the court that he was not formally on record for any of the defendants. With his assistance the four defendants gave sworn undertakings that their caravans would remain within a specified area of the Coonagh site until the next hearing. On the basis of those undertakings proceedings against those defendants were adjourned for hearing on Thursday 30 November 2017.
24. Counsel for the Council opened his application against the remaining defendants who were not present and the Court granted orders requiring those defendants to remove their caravans and all other property from the Coonagh site by 16.30 the same day.
25. The same day the first applicant contacted an official in the Council’s housing section concerning her housing application. She was informed that there was a possibility that accommodation for her and her family would become available within the next two months.
26. On Tuesday 28 November 2017 the same four defendants, including the applicants, made an application for civil legal aid to the Limerick Law Centre. The Centre provided them with letters stating that their application was under consideration and they should seek an adjournment from the court on the next hearing date.Hearing of 30 November 2017
27. On Thursday 30 November 2017 the same four defendants attended the Circuit Court hearing. They were not legally represented. The Council was represented by counsel.
28. The applicants told the judge they had no alternative site to station their caravans and asked if they could remain on the Coonagh site until after Christmas. The Council opposed this request on the basis of the costs being incurred but eventually conceded a period of two days might be acceptable. The Council then stated that no long-term accommodation was then available for the first applicant, but it hoped to be in a position to provide accommodation for her in several months.
29. The applicants handed in their letters from the Legal Aid Centre and asked for an adjournment to complete their legal aid applications. The Council argued that this could cause a further year’s delay. The judge refused to grant an adjournment and proceeded to hear the application.
30. The Council argued that the Court had very limited discretion to refuse an order under section 160 of the 2000 Act as it was not contested that the defendants’ occupation of the site was unauthorised.
31. The judge stated:
“Well now, Mr Q, I’m satisfied that you’ve proved legally that there’s been a contravention of the planning and development regulations [sic], and that they are causing obstruction and that has an economic knock-on effect which is of serious proportions to the Council...And I propose to grant you your orders against all parties.”
32. The judge then granted the orders sought, requiring the defendants to vacate the site by noon on Sunday 3 December. He granted the Council the costs of the application.Hearing of 6 December 2017
33. The applicants did not leave the site. In their affidavits they stated that they were unable to find an alternative site. On 1 December 2017 they contacted the Limerick Legal Aid Centre seeking to appeal the orders of 30 November. They were informed that a decision had not been made on their legal aid application but they should personally lodge an appeal. The applicants encountered difficulties as to the appropriate court office with which to lodge an appeal.
34. The Council applied to the Circuit Court on 5 December seeking orders requiring the same four defendants, including the two applicants, to be brought before the court and imprisoned for their failure to comply with the order of 30 November. That application was listed for hearing on 6 December 2017. In the interim the applicants and the other remaining defendants were granted legal aid.
35. On 6 December the applicants were in court represented by counsel. They were in the process of lodging an appeal against the orders of 30 November. They sought a stay on the application of those orders pending the hearing of their appeal and sought to resist the order for their committal. They submitted affidavits setting out their personal circumstances.
36. In support of their application for a stay, the defendants raised Article 8 of the Convention and argued that a genuine question arose as to whether planning enforcement was an appropriate mechanism to remove someone from his or her home, since the Convention required courts to carry out an examination of the proportionality of such decisions. The defendants also stressed that they had not been represented on 30 November, and it had been unfair to expect them to prepare affidavits and make legal arguments on complex legal questions without representation. Finally, they contended that they had legitimate reasons for refusing the accommodation previously offered by the Council, and as there was a shortage of Traveller specific accommodation in Limerick, it was unjust to expect them to find an alternative site for their caravans in a matter of days.
37. It was not disputed that the occupation of the Coonagh site was an unauthorised development, and the Council argued that pursuant to Murray [2018] 1 IR 189, any appeal could examine only the court’s exercise of its discretion under section 160 of the 2000 Act, which was narrowly defined (see section on Relevant domestic law and practice below). With regard to the Article 8 complaint, the Council argued that as the defendants were not being deprived of their caravans, which they could move elsewhere, there was no interference with the right to respect for their home under the Convention. Moreover, the first applicant had refused two offers of accommodation and the second applicant’s family had been provided with hotel accommodation which they did not use. Finally, the Council argued that as the defendants had been served with notice of the intended proceedings on 14 November and the matter had first come before the court on 24 November they had sufficient time to seek legal representation. In the Council’s view, no serious question arose that could be the subject of a bona fide appeal and the appeal was being pursued only to convince the Council to allow them to remain after Christmas.
38. The judge gave his decision later the same day:
“The substance of the case is in some respects not contested in that it relates to a number of caravans which are unauthorised and parked on the L8075-29 public roadway between Clondrinagh and Coonagh. I’ve had the opportunity to read all the affidavits on both sides and have considered the case law referred to by both sides and have listened very carefully to the lengthy submissions made by both parties in this matter. I am satisfied that the appropriate orders are as follows. There is no doubt that the four defendants to these proceedings are still within time to lodge an appeal. Although it has not been lodged as yet, they have indicated their intention to do so. I am satisfied that to make an order for the attachment and committal of any of these four defendants at this particular juncture would be premature in the given circumstances that they are within time to lodge an appeal and that time has not expired. However, I am not prepared to grant a stay on matters pending the outcome of the appeal and instead I intend to vary the order of my colleague [the Circuit Court judge] slightly and extend the time for compliance with the order that he made on the 30th November to the 10th of December at 12 noon.”
39. The judge reserved the costs of the application.Hearing of 14 December 2017
40. The applicants did not leave the Coonagh site. On 11 December they lodged an appeal against the decision of 30 November with the High Court. On 12 December the Council sought further orders requiring the remaining defendants to be jailed for failing to comply with the order of 30 November. As this application was listed on 15 December in the Circuit Court, the High Court agreed to hear the defendants’ appeal against the refusal of a stay on 14 December.
41. On 13 December 2017 the Council made an offer of emergency accommodation to the two applicants in an apartment with secure parking elsewhere where their caravans could be safely stored, but not accessible.
42. On 14 December 2017, the defendants opened their appeal of the decision to refuse a stay. They claimed that the failure of the judge to carry out a proportionality assessment in accordance with Article 8 before granting the orders was a legitimate ground of appeal and was, inter alia, sufficient to justify the court granting a stay. They referred to Buckley v. the United Kingdom (25 September 1996, Reports of Judgments and Decisions 1996‑IV) and the Irish case of O’Donnell v. South Dublin County Council [2007] IEHC 204. The defendants argued that the Circuit Court should have considered whether alternative accommodation had been made available. They argued that the necessity for them to leave the site was a contrived emergency.
43. The Council argued that the principles applicable to the grant of a stay were those set down in Redmond v Ireland [1992] 2 IR 362 and that the defendants had not met the relevant threshold. The Council stressed that to allow the defendants to remain pending their High Court appeal would impose an enormous financial liability on the Council.
44. The High Court Judge then gave his decision. Insofar as the defendants argued that they did not get a fair hearing before the Circuit Court because the hearing was not adjourned to allow them to apply for legal aid, he held:
“[I]t has been my invariable experience in this Court that the Court is constantly confronted with applications for adjournments by people seeking legal aid. The Legal Aid Board, through no fault of its own, is overwhelmed with such applications; it can take many, many months before a party’s application for legal aid is even considered, never mind granted. And what is suggested here is that the defendants should have got an adjournment for an indefinite period of time while they continue to unlawfully camp on the lands in question. And it seems to me that the Circuit Court Judge was perfectly entitled to refuse to grant the adjournment when faced with the circumstances and facts that are outlined in the affidavits I have seen today.”
45. On the issue of proportionality, the judge noted:
“Thirdly, it is argued that the orders were disproportionate. That is an argument yet to be determined, and of course I do not determine any points, they remain yet to be argued, but it seems to me that there is at least an equally cogent argument to be made in the opposite direction in favour of granting an injunction.
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.”
46. The judge also refused to grant the defendants any extension of time to comply with the original injunction and granted the Council the costs of the hearing.
47. The applicants left the Coonagh site after the High Court decision refusing any further stay on the orders of 30 November pending the hearing of their appeal. They later withdrew their High Court appeal. The hearing of the Council’s attachment and committal application in the Circuit Court on 15 December 2017 was adjourned indefinitely.Relevant domestic law and practiceLegislation
48. Section 2 of the Planning and Development Act 2000 (“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.”
49. Section 160 of the 2000 Act provided as follows:
“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with—
(i) in the case of a permission granted under this Act, the permission pertaining to that development or any condition to which the permission is subject, or
...
(3) (a) An application to the High Court or the Circuit Court for an order under this section shall be by motion and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate.
(b) Subject to section 161, the order by which an application under this section is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.
...
(5) (a) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the land which is the subject of the application is situated.”Case-law
50. In Meath County Council v. Murray [2018] 1 IR 189, McKechnie J. set out the factors that a court should consider in exercising its discretion to grant an injunction under s. 160 of the 2000 Act once the applicant has shown that an unauthorised development has taken place or is taking place:
“[92] 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: -
• acting in good faith, whilst important, will not necessarily excuse him from a s. 160 order;
• acting mala fides may presumptively subject him to such an order;
(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. For example, in Pierson v. Keegan Quarries Limited [2010] IEHC 404, (Unreported, High Court, Irvine J., 7 October 2010), Irvine J. took account of the hardship which demolition might cause to third parties, and referred also to the possible effect of the developer having relied in good faith on professional advisers. The jobs of nonrelated members of the public, mentioned at para. 92(iv), above, featured in Stafford v. Roadstone [1980] I.L.R.M. 1 and Dublin County Council v. Sellwood Quarries Ltd [1981] I.L.R.M. 23. There are many other examples. 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, conducted, as it only could be, by reference to the traditional or customary approach (see paras. 136 to 141, infra).”
COMPLAINTS
51. The applicants claim that the orders requiring them to leave the Coonagh site in their caravans 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.
52. 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.
QUESTIONS TO THE PARTIES
1. Did both applicants have sufficient and continuous links with the Coonagh site so the site could be considered their “home” under the protection of Article 8 § 1?
2. (a) If the Coonagh site was the applicants’ “home” within the meaning of Article 8 § 1, in the proceedings which led to the orders requiring them to vacate that site, did the applicants have the benefit of an examination of the proportionality of the interference with their right to respect for their home in accordance with the requirements of Article 8 § 2?
(b) Where an application is made to the High Court or the Circuit Court for an order under s. 160 of the Planning and Development Act 2000 and that order may lead to interference with the right to respect for a person’s home under Article 8, do those courts have discretion to carry out such an examination of the proportionality of that interference?
3. Were the applicants’ rights under Article 6 breached in the domestic proceedings, in particular by the decision of the Circuit Court to proceed with the hearing of the Council’s application and to make orders requiring the applicants to leave the Coonagh site on 30 November 2017 when the applicants were in the process of applying for legal aid?
4. Were the applicants’ rights either under Article 6 or Article 8 breached as a result of the time-frame in which these proceedings were conducted, in particular the period between service of the proceedings on the defendants and the determination of the Council’s application?
5. The parties are requested to provide specific and detailed information on when both applicants and their immediate families arrived at the Coonagh site and the applicants’ links with that area, including their children’s attendance at local schools.
6. The parties are requested to provide any further information on alternative offers of accommodation made by the Council.
7. The parties are requested to provide further information on where the applicants lived after leaving the Coonagh site and their children’s attendance at local schools.
8. According to the information available to the Court, planning permission for the road scheme was granted in 2011. Please detail when the Coonagh Road became relevant for the construction phase of the development and how events unfolded in 2017.
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