The High Court has adjourned its decision on whether to order Martin Gavin and other defendants to leave Dublin City Council land near the Oscar Traynor Road, Coolock Lane and M1 junction. The court found that they entered the land without permission, but said an immediate removal order would be futile because the family had nowhere lawful to go.
In a judgment delivered on 19 December 2008, Mr Justice Michael Peart rejected the defendants’ common-law necessity defence. He said homelessness did not justify forcibly entering another person’s land to meet the defendants’ own needs. The court therefore concluded that, unless the defence applied, the defendants were trespassers.
The judge nevertheless deferred deciding what order, if any, to make. He accepted that the council had no available site large enough to accommodate the extended family together, and that sending about 80 people, including women and young children, to seek emergency accommodation through the Health Service Executive was not realistic. If removed, the judge said, they would likely trespass on other land, prompting further proceedings.
The council had sought an injunction requiring the defendants to leave, remove their caravans and belongings, and restore the land. It said the site had been sold under a contract and raised concerns about traffic safety. The judge found no evidence that the defendants’ presence had caused or was causing a public danger or nuisance. He also noted that planning procedures were unfinished and the need for vacant possession was not imminent.
The council identified St. Dominick’s as the only site it might make available to the family. It was then uninhabitable and needed to be cleared and assessed; the evidence put the work at about 12 weeks, subject to available resources. The judge said the council should consider the family’s safety concerns about the neighbouring McDonagh family, given evidence of past violence, but the defendants could not veto the council’s accommodation decisions. He said policing and public order were matters for An Garda Síochána.
The defendants’ counterclaim sought declarations concerning the council’s accommodation duties and the suitability of St. Dominick’s. The judge said declarations about the forthcoming Traveller Accommodation Programme were unnecessary at that stage. He was satisfied the family would be considered for the plan and that consultation would be needed.
The court adjourned the question of an order until the council could make St. Dominick’s, or another suitable site, available. It directed that further submissions be heard on how long the matter should be put back and what steps should be taken.