The High Court has refused a judicial review brought by ten members of an extended traveller family over Kilkenny County Council’s refusal of an accommodation application and Garda notices directing them to leave two council-owned sites.
In a judgment delivered on 23 October 2007, Mr Justice O’Neill refused all relief sought. He found that the council had considered and refused the family’s February 2006 application, and that the evidence did not justify quashing that decision or ordering the council to assess or provide accommodation. He said a later application might be considered if the family continued to reside in Kilkenny and was no longer included in Clare’s Traveller Accommodation Programme; that question was outside these proceedings.
The family had camped at a picnic area at Graiguenakill, Glenmore, and later at land used to store road chippings at Old Road, Dunkitt, Kilmacow. Both sites were owned by Kilkenny County Council. Gardaí served notices under section 19 of the Criminal Justice (Public Order) Act 1994, as amended, directing them to leave and remove objects. The applicants challenged the notices and sought to prevent prosecutions arising from two charges, including one alleging obstruction of traffic.
The applicants argued that Kilkenny was their home base and that the council had failed to meet its housing duties, leaving them in unsuitable conditions. The council disputed their account and said they did not meet its programme’s “indigenous” criteria. The judge found that before summer 2005 the evidence pointed overwhelmingly to the family being indigenous to Clare, and that the council had considered the application on the material before it.
The applicants also argued that the statutory offence and Garda powers infringed constitutional and Convention rights, including fair-hearing protections. The judge declined to decide their legal challenges to the offence in advance of the criminal trials, saying those issues had to be tested there on an established factual basis. He refused to prohibit either prosecution; he noted that no grounds had been advanced against the obstruction charge.
On the notices, the judge found that the family entered and occupied the council’s land without consent, and that the council’s ownership rights had been infringed. He held that constitutional protection for a dwelling and Convention rights could not justify an unlawful occupation of another’s property. He also found no breach of the applicants’ fair-hearing rights. Their concern about possible confiscation or destruction of caravans did not establish a case, as neither had happened.
The ruling concerns the judicial review only. It does not decide the outcome of the criminal charges. The interim relief that had prevented action over the Dunkitt notices pending the review ended with the court’s refusal of the application.