The Court of Appeal has dismissed Bernard and Helen McDonagh’s appeal against interlocutory injunctions obtained by Clare County Council over the couple’s occupation of council land at Cahercallamore, Ennis. The orders require them to remove caravans, vehicles and associated property pending trial, and require the unlawful use of the land to cease.
The appeal concerned orders made by the High Court on 15 October 2019 under the Planning and Development Act 2000 and in respect of trespass. The Court of Appeal found that the Council had shown a strong case that it was likely to obtain permanent orders at trial. It said the McDonaghs had not established a stateable legal basis to remain on the land or a fair issue for trial that justified overturning the interim orders.
The couple argued that the caravans and vehicles were their “home” for the purposes of Article 8 of the European Convention on Human Rights, and that requiring them to leave would be disproportionate. The Court of Appeal considered that Article 8 can protect a home even where occupation is unlawful, but concluded that the McDonaghs lacked the close and continuous links to Cahercallamore required on the facts of this case. It also said the Convention does not give a right to accommodation of a person’s choosing.
The judgment records that the Council had made several housing offers which the McDonaghs rejected, and that the couple sought Traveller-specific accommodation for their extended family. The court said the Council’s housing duties did not require it to provide a site or accommodation exclusively for that wider family. It also rejected the appeal arguments concerning Traveller accommodation funding and planning provision, noting that related findings in earlier Ashline proceedings had not been appealed.
The court’s decision dismissed the appeal, but did not finally determine the underlying action. Because the High Court orders had been stayed and Covid-19 restrictions were in force, the Court of Appeal invited submissions on whether a short, limited stay was warranted to protect the couple’s welfare, health and safety pending trial. It gave the Council 14 days to submit proposals, including on costs, and the appellants a further 14 days to respond. The judgment does not set out a final decision on that proposed stay.