About this case:

• Citation:
  [2019] IEHC 662
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Senan Allen

The family had lived on the site for over 14 years before being victims of an arson attack, and the Council had promised to offer the family a house there once the site had been refurbished.

Granting the injunction, Mr Justice Senan Allen said that the family did not have a subsisting tenancy, and that even if they did, this did not entitle the family to occupy another part of the site.

Background

In 1990, Clare County Council acquired land at Ashline, Ennis, Co Clare. The land was used for Traveller-specific accommodation, initially as a halting site. In 1998, four houses were built on the land and two more were added in 2006.

In March 1998, Bernard McDonagh and Helen McDonagh entered into a week-to-week tenancy for 1 Ashline.

From 2000-2012, a number of houses at Ashline were the subject of arson attacks and vandalism, including the McDonagh home, which had been petrol bombed in 2007.

By August 2012, the McDonaghs’ was the only property at Ashline that had not been rendered uninhabitable. Mr McDonagh contacted Clare County Council asking if he could be moved from Ashline, requesting for the family to be moved to Cork. Mr McDonagh reported, inter alia, that there was a court case coming up involving members of another family who were accused of cutting off his nephew’s finger. He feared that his family and their home would be attacked in reprisal if those on trial were given a custodial sentence. The McDonaghs had also received a letter from the gardaí stating that they needed to leave the Ennis area.

The housing officer at Clare County Council explained that it was not possible for the council to purchase or build a house for anyone in another functional area.

Arson attack and refurbishment proposal

Mr and Mrs McDonagh’s fears were “abundantly justified, for on 11 November 2012, the house was the subject of another arson attack”. A council engineer designated the house uninhabitable and arranged for it to be secured with steel shutters on the doors and windows. A barrier was also erected at the entrance to Ashline.

Consequently, the McDonagh family went to live with relatives in Cork. However, their tenancy at 1 Ashline was not surrendered in writing.

In a letter dated January 2014, the McDonaghs were informed that Clare County Council would be inviting “proposals from Approved Housing Bodies to refurbish the vacant Group Housing scheme at Ashline”, and that this was “an objective included in the Draft Traveller Accommodation Programme 2014 – 2018 which will be submitted to Clare County Council for approval”. They were told that on completion of the refurbishment, they would be offered accommodation at Ashline.

Trespassing application

In September 2017, the McDonaghs had to move out of a privately rented house. Thereafter, the family brought mobile homes to part of the Ashline site. The family informed the council that housing on this land was all they wanted.

In 2018, Clare County Council were granted an interlocutory order requiring the removal of caravans and associated vehicles from the Ashline site. In the present application, Clare County Council sought a permanent injunction restraining the McDonaghs from trespassing on the land at Ashline.

The McDonaghs argued that they had a subsisting tenancy in 1 Ashline which the Council was obliged to reinstate, and that they were entitled to occupy the Ashline site as a result of the subsisting tenancy.

Noting that the tenancy was not surrendered in writing, Mr Justice Allen said that the tenancy was surrendered by act an operation of law, and that even if the “tenancy had subsisted, it would not have justified their occupation of any other part of the site”.

Legitimate expectation

The McDonaghs put forward a number of counterclaims, including that the January 2014 letter created a legitimate expectation that they would be housed in Ashline in a Traveller-specific group housing scheme, and sought an order requiring the council to maintain Ashline as a Traveller-specific scheme and to offer the McDonaghs housing there.

Mr Justice Allen said that there could only have been a legitimate expectation that the Council would invite proposals for redevelopment of the site, and that the Traveller Accommodation Programme (TAP) “did not say and could not reasonably been understood as a promise or representation either that the site would be redeveloped as a Traveller-specific group scheme, or that it would not be redeveloped other than as such a scheme”.

At most, the letter created a legitimate expectation that “if and when the site was redeveloped for social housing”, the McDonaghs would be offered one of the houses – a promise which Mr Justice Allen said had been repeatedly confirmed by the council.

The Housing (Traveller Accommodation) Act 1998

Considering the McDonaghs’ counterclaim for declarations in relation to the implementation by the Council of its obligations under the Housing (Traveller Accommodation) Act 1998, Mr Justice Allen said that, although this had been pleaded in terms of private law, this was a public law challenge to the performance of public law duties.

Mr Justice Allen said that the court had essentially been invited to make its own appraisal of the need for, or desirability of, Traveller-specific group accommodation schemes in Clare – and that this was not something which the law allowed.