Local authorities may have to consider Travellers' rights as a vulnerable minority group and their prospects of getting accommodation elsewhere before taking steps to evict them from council-owned sites as a result of a Supreme Court judgment.
The courts will also consider a council’s interests, powers and obligations as landowner and as housing and planning authority in deciding whether such steps are proportionate.
Those are among the implications of the Supreme Court judgment overturning a mandatory injunction granted to Clare County Council, pending a full hearing, which required a Traveller family to leave a council-owned site.
The case focused on the McDonagh family’s unauthorised presence on a site near Ennis.
They had lived as council tenants in a Traveller-specific housing development, Ashline, between March 1998 and November 2012. When a fire destroyed that site, they lived in privately-rented accommodation until September 2017 after which they lived on lands owned by the council near the Ashline site. They declined to leave, arguing the council had not offered them Traveller-specific accommodation, a claim the council strongly disputed.
The Court of Appeal decided it did not have to analyse if their eviction was proportionate because their caravans and vehicles were not on the site long enough to constitute a “home” within the meaning of Article 8 of the European Convention on Human Rights (ECHR), which guarantees respect for the home.
The Supreme Court, in a judgment by Mr Justice Gerard Hogan, concluded the family had an arguable case that the mandatory injunction was disproportionate when the loss of their "dwelling" or "home" was at stake.
He said the COA should have considered Article 40.5 of the Constitution, guaranteeing the “inviolability” of a dwelling, because the convention does not have the same status here as EU law has.
He found the McDonaghs had a fair case for trial both as to the existence of a “dwelling” for the purposes of Article 40.5 and of a “home” under Article 8 of the convention.
However, the judgment makes clear that those who unlawfully occupy land or engage in unauthorised development have “greatly diluted” constitutional or ECHR protection.
The presumption is very much in favour of enforcement of planning laws and restraining unauthorised use of those lands, the court said.
In considering whether that presumption might be discharged in this injunction application, the court had to decide whether there were factors establishing a fair question whether such a mandatory order would be disproportionate.
It found several factors, including that the case concerned the rights of a vulnerable minority group who have struggled for recognition of their cultural identity and way of life, particularly as it fits in with planning law and land use.
The family also had an arguable point that the council had failed in its duty as a housing authority to offer them suitable accommodation. Another factor was that a mandatory injunction meant they would have nowhere else to go without necessarily trespassing on the lands of another party.
The Irish Human Rights and Equality Commission, which made submissions in the appeal, welcomed the outcome, saying it makes clear the local authority is the housing body with an obligation to offer suitable accommodation to Travellers.