CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 mars 2022

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display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     FIFTH SECTION DECISION Applications nos. 30391/18 and 30416/18 Christina FAULKNER against Ireland and Bridget MCDONAGH against Ireland   The European Court of Human Rights (Fifth Section), sitting on 8 March 2022 as a Chamber composed of:   Mārtiņš Mits, President,   Síofra O’Leary,   Stéphanie Mourou-Vikström,   Lado Chanturia,   Arnfinn Bårdsen,   Mattias Guyomar,   Kateřina Šimáčková, judges, and Victor Soloveytchik, Section Registrar, Having regard to the above applications lodged on 14 June 2018, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the comments submitted by the European Roma Rights Centre, the Irish Human Rights and Equality Commission and the Traveller Equality and Justice Project, who were granted leave to intervene by the President of the Chamber, Having deliberated, decides as follows: INTRODUCTION 1.     The applicants are members of the Traveller community who complain principally about orders made under domestic planning legislation which required them to vacate a site they were illegally occupying. They complain that the domestic courts failed to assess the proportionality of those orders in accordance with Article 8 § 2 and that the proceedings were conducted with undue haste, with no provision of legal assistance at the court hearing at which the impugned orders were granted. The FACTS 2.     The applicant in the first case, Ms Christina Faulkner, is an Irish national who was born in 1965 and lives in Limerick. The applicant in the second case, Ms Bridget McDonagh, is an Irish national who was born in 1962 and also lives in Limerick. Both applicants are represented before the Court by Ms S. Lucey of Free Legal Advice Centres (FLAC), a lawyer practising in Dublin. 3.     The Government were represented by their Agent, Mr B. Lysaght, of the Department of Foreign Affairs and Trade. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The circumstances of the case Background 5.     The applicants are sisters and members of the Traveller community which since 2017 has been officially recognised as a distinct ethnic group within Irish society. 6 .     The first applicant and her family lived on a halting site from March 2009 to July 2013, one of several sites for Travellers provided by Limerick City and County Council (“the Council”) under its statutory obligations to provide Traveller specific accommodation. The site was not designated for permanent accommodation. 7 .     The first applicant and her family left that site in July 2013, following her daughter’s death by suicide, and travelled for a time before locating their caravans on the side of the L8075-29 road at Coonagh near Limerick City (“the Coonagh site”) in September 2013. They moved there to allow their children to attend schools in a nearby suburb. She stated that she was traumatised by her daughter’s death, her older son having died in similar circumstances. At the time of their departure in December 2017, the children, aged 16, 13 and 10, were attending a local school. 8 .     The second applicant lived in private rented accommodation in Limerick City until August 2013. She then lived in a caravan on the Coonagh site with her husband M.M. and their two children. At the time of their departure in December 2017, their children were aged 21 and 16 years old. Her younger child was enrolled in a local school. Several other members of both applicants’ extended families also occupied the site during this period. 9 .     In November 2017 the Council took proceedings against thirteen named defendants and other persons occupying the site (“the 2017 proceedings”), including the two applicants (see further paragraphs 14 et seq . below). Applicants’ engagement with the housing authority 10 .     After the first applicant and her family arrived at the Coonagh site in 2013, she contacted the Council, seeking housing in the surrounding area; the application was approved, and her family were placed on the housing list. The parties disagreed regarding the Council’s efforts to provide housing. The Government claimed that the first applicant had viewed and rejected a 4 ‑ bedroom house; she stated that they were shown this house, but it was unsuitable and there was no formal offer. She accepted that she refused a three-bedroom house in March 2015, but stated that this was because, after the death of two of her children, she wanted to raise her remaining children in a safe rural area. She claimed this was the only formal offer before the 2017 proceedings commenced. The Council stated that it had also offered the family space on a halting site until other housing was available. They were also entitled to source rented accommodation, paid for by the State. The Council claimed that the first applicant had stated that she did not wish to live on a halting site or in a local authority estate. In July 2017 the first applicant provided the Council with a list of preferred areas. The Government stated that discussions between her and the Council were ongoing when the 2017 proceedings commenced. The Council, stressing the limited supply of housing, its budgetary restrictions and the competing claims of other eligible persons, argued that the first applicant’s expectations were unrealistic, that it had satisfied its statutory obligations, and that it was not required to provide her with a house of her choice in an area of her preference. 11 .     The second applicant applied for social housing support in November 2014, seeking rented accommodation in Limerick City. Her application was approved, and the family were placed on the housing list but did not receive any offer of permanent accommodation. On 10 July 2017, after living conditions on the Coonagh site deteriorated, the family contacted the Council’s Homeless Action Team and secured emergency accommodation in a hotel. For three months they used the site during the day, returning to the hotel at night. The second applicant stated that this was because they could not cook at the hotel, it lacked other basic facilities and was some distance from their daughter’s school. She stated that they returned to live full-time on the Coonagh site on 29 September 2017, because of the hotel’s effects on the mental health of her husband, who suffered from depression and had previously attempted suicide. The Government maintained that the second applicant’s family still had access to the hotel when the 2017 proceedings commenced. The family were also entitled to seek rented accommodation with State support. In October 2017, they again sought emergency accommodation. This application was approved but the parties’ submissions did not clarify the outcome. Previous enforcement proceedings 12.     The Council, as the planning authority for Limerick County, was responsible for the enforcement of planning legislation within its jurisdiction. In 2014 the Council served a warning letter on the first applicant and her husband under the Planning and Development Act 2000 (“the 2000 Act”, see further under paragraphs 43-45 below), stating that their use of the Coonagh site was an unauthorised development and requesting that they leave the site immediately. The Council then served an enforcement notice under the 2000 Act requiring them to leave the site and issued proceedings for non ‑ compliance in October 2014. These proceedings were repeatedly adjourned. New Road Scheme 13.     In 2011 planning approval was granted for a new road scheme to reduce congestion around Limerick City. In June 2017, as part of the scheme, the Council designated a section of road on which the Coonagh site was located as a public road under the relevant legislation. 14 .     The Council appointed a contractor on 23 June 2017. After works commenced in September 2017, the contractor encountered difficulties due to the occupation of the Coonagh site. The contractor’s safety inspection stated that large vehicles using the road were passing close to caravans with young children in their vicinity, preventing the vehicles from safely accessing and leaving the construction site, and creating a significant risk to the public and to the occupants of the site. On 2 October 2017, the contractor notified the Council that works must cease until the site’s occupants were removed, submitted a contractual claim for 531,381 euros (EUR) arising from this delay and continued to charge the Council a further EUR 10,000 for every day vehicles were unable to access the construction site. Issue of 2017 proceedings by the Council 15.     On 14 November 2017, the Council wrote to the occupants of the Coonagh site, notifying them that their occupation was illegal and requesting that they immediately remove their caravans from the site or face legal proceedings. The applicants did not leave. 16.     On 21 November the Council filed an application for court orders under section 160 of the 2000 Act (see paragraph 46 below), preventing the applicants and the site’s other occupants from placing their caravans on the site and requiring them to remove their caravans and all other property (“the orders”). 17 .     The proceedings were supported by evidence contained in three sworn written statements (affidavits) provided by officials of the Council which detailed the importance of the road scheme and the consequences, financial and otherwise, of the defendants’ illegal occupation of the Coonagh site during construction, the Council’s efforts to provide alternative accommodation, and the position of the defendants under the relevant planning legislation. 18 .     On 21 November 2017, the Circuit Court granted an application by the Council to shorten the period between service of proceedings and the hearing of its application under section 160. The applicants were not notified in advance and were not present when that procedural application was dealt with. The applicants were formally notified of the proceedings and served with a copy of the application on Wednesday 22 November 2017. Hearing of 30 November 2017 19.     On 24 November the applicants attended the Circuit Court and succeeded in having the hearing of the application against them adjourned until Thursday 30 November 2017. The court granted orders against the site’s other occupants. 20.     On 28 November 2017 the applicants sought civil legal aid from the Limerick Law Centre. They were provided with letters stating that these applications were being considered and advised to seek a further adjournment from the Circuit Court on this basis. 21 .     On 30 November 2017, the applicants attended the Circuit Court unrepresented. They told the court that they had nowhere to place their caravans, stated that their children were attending local schools, claimed that they were not obstructing the road works and asked to remain over Christmas. Failing this, they sought a shorter adjournment to obtain legal aid. 22.     The judge first asked if the applicants would agree to the orders being sought rather than opposing the Council’s application. He then asked if the Council could postpone the application for several weeks, or even for a day to confirm if legal aid was available. The Council opposed any adjournment, noting the costs being incurred and the absence of other means for the contractor access to the site (see paragraph 17 above). The Council argued that it could take a year for the Legal Aid Board to make a decision on legal aid. 23.     The applicants refused to agree to the orders and the judge, based on the above considerations, decided not to adjourn. Before hearing the substantive application, the judge asked if alternative accommodation was available to the applicants. The Council described its previous offers to the first applicant (see paragraphs 10-11 above), noted that many other eligible persons were on the housing list and stated that no long-term housing was then available for her family. The Council noted that the second applicant had recently left emergency accommodation. The Council argued that the court had limited discretion to refuse the application where the defendants had not contested the fact that their use of the site was illegal. 24 .     The judge concluded that the Council had proved a contravention of the planning legislation and that the applicants’ presence was obstructing the works with serious consequences for the Council. He granted orders requiring the applicants to leave the site by noon on Sunday 3 December 2017. Hearing of 6 December 2017 25.     The applicants did not leave the site. On 1 December 2017, they contacted the Limerick Law Centre seeking   to appeal the Circuit Court orders. As a decision had not yet been made on their legal aid application, they were advised to lodge their own appeal, but they were unable to identify the appropriate court office to do so. 26.     On 5 December, the Council applied to the Circuit Court seeking to bring the applicants before the court to explain their failure to comply with the orders (attachment) and, in the event they failed to provide an explanation, to imprison them for breach of the orders (committal). This application was listed for hearing on 6 December. In the interim the applicants were granted legal aid. 27 .     On 6 December, the applicants appeared in the Circuit Court legally represented. They sought to suspend (stay) the orders of 30 November until their appeal was decided. They provided sworn written statements describing their circumstances and their efforts to obtain accommodation. In support of their application they argued that, as the Council had been aware of their presence when commencing works, the circumstances leading to the original application were a contrived emergency. They questioned whether an application under section 160 was the appropriate framework in which to address proportionality under Article 8 of the Convention, though they accepted that, according to domestic case-law, such questions could in principle be examined within this context (see the case-law as it stood at that point in time cited in paragraphs 47-51 below). They stated that, as they had been unrepresented on 30 November, and the proceedings had not been based on oral evidence, they had been unable to make relevant submissions and it was unfair to expect them to do so without legal assistance. They claimed that they had had good reasons for refusing previous offers of accommodation (see paragraphs 10-11 above) and that, given the shortage of Traveller specific accommodation, it was unfair to expect them to find an alternative site for their caravans in such a short time. 28 .     The Council stated that the purpose of its application was to enforce compliance with the orders, that the applicants had no real grounds for an appeal, and as they had been notified of possible proceedings on 14   November, they had had been given sufficient time to seek representation. The Council argued that there was nothing in the established domestic case ‑ law to suggest that the Circuit Court should not have granted orders. As the applicants were not being deprived of their caravans there was no interference with their right to respect for their home under Article 8 of the Convention. The Council described in detail its previous attempts to provide accommodation and confirmed that the services of the Council’s Homeless Action Team were available to the applicants. 29.     The judge refused to grant orders of attachment and committal against the applicants, noting that such orders would be premature as they were still within time to lodge an appeal. However, he also refused to suspend the orders of 30 November until the applicants’ appeal was heard. Instead, he extended time for compliance with those orders until noon on 10 December 2017. He stated that if the applicants failed to leave by that date, and further steps were required to enforce the orders, a new application for attachment and committal would be required. Hearing of 14 December 2017 30.     The applicants did not leave the Coonagh site. On 11 December they lodged a High Court appeal against the original orders and a separate appeal against the Circuit Court’s refusal to suspend those orders pending their substantive appeal. On 12 December the Council again applied to the Circuit Court seeking to have the applicants imprisoned for failure to comply with the original orders. As this application was listed on 15 December, the High Court agreed to hear the applicants’ appeal against the refusal of a stay on 14   December. 31 .     On 13 December 2017 the Council offered the applicants emergency accommodation in an apartment, with secure parking where their caravans could be stored, but not accessible, subject to them vacating the Coonagh site. 32 .     On 14 December 2017, the High Court considered the appeal of the applicants, who were legally represented, against the Circuit Court’s refusal to suspend the orders. The applicants submitted further sworn statements describing their circumstances, their efforts to obtain housing and their grounds of appeal; they claimed that they had no other site to place their caravans and that the refusal to suspend the original orders deprived their substantive appeal of any meaning. Their lawyer claimed that the orders were disproportionate, that the Circuit Court had failed to assess proportionality under Article 8 of the Convention and that, as the orders had been made based solely on written rather than oral evidence, when the applicants had been unrepresented, they had been denied a fair hearing. Asked by the High Court to address how proportionality applied to the question of whether the applicants should remain on the Coonagh site, he argued that it went to the issue of whether alternative accommodation was made available to them. He repeated their reasons for refusing previous offers and described the latest offer as too late to be relevant. 33.     In response, the Council set out the need for the development, the obstruction caused by the applicants’ illegal use of the site, and its efforts to provide accommodation. The Council argued that the applicants had not contested that their use of the site was illegal and stated that the contested orders would not result in them being made homeless, but their continued presence subjected the Council to enormous financial liability. 34 .     As to the Circuit Court’s refusal to adjourn the application to confirm if legal aid was available, the High Court, noting the significant delays in the Legal Aid Board making such decisions, and the prospect of the applicants unlawfully occupying the lands pending such a decision, stated that this decision was reasonable in the circumstances of the case. 35 .     In assessing the balance of convenience to the parties, the High Court first noted that the question of whether the original orders had been disproportionate had yet to be determined in the appeal, but suggested there was an equally strong argument they had been proportionate. The latter issue was assessed as follows: “As I say, it is not in dispute that the activities of the defendants are unlawful, and it seems to me that it was certainly within the discretion of the learned Circuit Court Judge to refuse a stay on the order of the injunction that he had granted. Particularly in circumstances where to have granted a stay would be effectively for him to reverse himself and entirely negative the effect of the injunction he had granted. So, the test I must apply is the one essential by way of assessing the balance of convenience. And it seems to me that there are a number of matters I must have regard to in considering where the balance of convenience lies in this matter. The first is that each of the defendants who are bringing this appeal have been offered accommodation by the local authority in circumstances where they may or may not find it satisfactory. But it is certainly not a case where the making of an order effectively renders these unfortunate people homeless for Christmas. There’s no question of that arising. One family, that’s the   Faulkner   family, have refused two offers of accommodation; perhaps with good reason, it’s not for me to decide. And the McDonaghs are apparently living in a hotel and occasionally perhaps daily visit their caravans on this particular site. But there’s no question of these people being turfed out on the side of the road without anywhere to go for Christmas as a result of this injunction having been granted in the Circuit Court. So, that’s the first matter I have to take account of. And, secondly, and importantly, is the fact that very substantial losses will accrue to the local authority; that’s not in dispute. If they’re not in a position to proceed with what is an essential work of important public interest in terms of the construction of a new ring road around the City of Limerick. I think I must also have regard to the fact that, I think I’m entitled to assume that the defendants will not be a mark for the undoubtedly huge damages that will occur to the local authority in the event that they are prevented from proceeding with their project. But I think most importantly, I have to have regard to the realities of when this appeal is going to get on. And as the parties may know from being in court today, dates are now being allocated for non-jury matters which include Circuit Court appeals of this nature towards the end of November 2018. So, in effect, if I grant a stay, that means that the Council would be entirely prevented from proceeding with their project for the best part of a year. So, what I would effectively be doing, it seems to me, is granting the defendants a veto over this project for as long as it takes for them to get the case on in this Court. I cannot see how that could possibly be regarded as being just to the plaintiffs in this case. As I say, there is no real issue about the unlawfulness of the activities that are carried on. And it seems to me that the balance of convenience lies overwhelmingly in favour of refusing this application for a stay in the circumstances I’ve outlined. So, I accordingly refuse the application.” 36.     The judge refused to grant the applicants further time to comply with the original orders. Subsequent events 37 .     The applicants left the Coonagh site after the High Court decision and withdrew their substantive appeal. The High Court order stated that their appeal was being withdrawn, inter alia , because it was moot. The Council’s application for committal was adjourned indefinitely. 38 .     The first applicant’s family initially occupied a site in Limerick City’s Dock Road. After further enforcement action they moved to a third roadside site. They refused emergency accommodation on 8 January 2018. The first applicant stated that this was because the facility was too far from her children’s schools and it was unclear how long they could remain there. On 31   January 2018, they were offered a four-bedroom house at Caherdavin, which they accepted. Their tenancy did not commence until June 2018. 39 .     The second applicant’s family moved to the same site on the Dock Road and refused two offers of emergency accommodation in January 2018, the first a bed and breakfast, and the second a two-bedroom apartment. After being required to leave, they illegally occupied two further sites, leaving both after further enforcement action. In November 2018 they were approved for funding for private rental accommodation for a house in Limerick, at a level twenty per cent above the normal limit, where they remained. Relevant domestic law and practice Bunreacht na hÉireann (“the Constitution”) 40.     Article 40.5 of the Constitution of Ireland provides as follows: “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” In Clare County Council v. Bernard McDonagh and Helen McDonagh , [2022] IESC 2, delivered on 31 January 2022, (hereafter the “ McDonagh judgment”) the Supreme Court examined an appeal relating to members of the Irish Traveller community and the granting of an interlocutory order under section 160 of the 2000 Act requiring them to move their mobile homes from land they were occupying illegally. As regards the applicability of Article 40.5 of the Constitution, it held that “it is sufficient that any person asserting the protection of Article 40.5 actually resides there” (see further below). The European Convention on Human Rights Act 2003 (“the 2003 Act”) 41.     Section 1 of the 2003 Act states: “(1)     In this Act unless the context otherwise requires— [...] “organ of the State” includes a tribunal or any other body (other than the President ... or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised;” 42 .     Section 2 of the 2003 Act states: “(1)     In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.” 43 .     Section 3 of the 2003 Act states: “(1)     Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions. (2)     A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.” The Planning and Development Act 2000 (“the 2000 Act”) 44.     Section 2 of the 2000 Act defined “unauthorised development” as “the carrying out of any unauthorised works (including the construction, erection or making of any unauthorised structure) or the making of any unauthorised use.” 45 .     Section 3 of the 2000 Act defines a “development” as meaning “the making of any material change in use of any structures or other land” and states that when land becomes used for the purpose of “the placing or keeping of any vans, tents or other objects, whether or not moveable...for the purpose of caravanning or habitation” the use of the land shall be taken as having “materially changed”. 46 .     Section 160 of the 2000 Act states that when an unauthorised development is being carried out, the High Court or the Circuit Court may, on the application of a planning authority, require any person to do anything that the Court considers necessary to ensure that the unauthorised development is not carried out or continued. The application must be made by motion on notice to the defendants, who must be informed in detail beforehand of the action being taken (the relief sought, the affected land or development, the identity of the applicant and the date of the proposed application) and be copied with the statements sworn (affidavits) in support of the application (Order 56, rule 3 of the Circuit Court Rules). The Circuit Court may adjourn the hearing if a defendant has not been given notice. The defendant’s replying affidavits must be filed with the court within seven days of service of the notice of motion and served on the applicant. Relevant domestic case-law 47 .     In Wicklow County v. Fortune (No. 2) [2013] IEHC 255, the High Court (Hogan J.) refused to grant an order providing for the demolition of an unauthorised dwelling because the planning authority had not shown the dwelling was completely at odds with public policy objectives: “5.     .. It is manifest from a series of decisions ... that the exercise of any such judicial power would also have to satisfy a proportionality test, not least given that the making of such an order would, at least, in the context of a case such as the present one significantly affect constitutional rights, not least the inviolability of the dwelling (Article 40.5) and the protection of property (Article 40.3.2). Of course, the proportionality at issue here is not simply proportionality in the narrow sense ... of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, the whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.” 48 .     In Meath County Council v. Murray [2017] IESC 25, the planning authority obtained a High Court order under section 160 of the 2000 Act requiring the demolition of a dwelling built without planning permission. The respondents appealed, arguing that the High Court, in exercising its discretion, had failed to apply the correct proportionality test and consider the consequences of the demolition for them. The Supreme Court (McKechnie   J.) first considered whether the summary procedure involving affidavits under section 160 was inappropriate for certain types of cases: “35.     I can see no reason in principle why the factual scaffolding of most cases cannot be adequately accommodated within the contours of the affidavit framework. Therefrom it should be readily apparent to all what area(s) of conflict, dispute or disagreement exist between the parties... If any such controversy touches upon issues of importance as to outcome, then the same can be explored by way of a viva voce examination. Indeed, if necessary, as the court has a constitutional obligation to ensure fairness and fair procedures, and as the superior courts have an inherent right to regulate their own procedures, they can be asked at any point to put in place a regime by which those objectives can best be served ... Subject to that, however, I do not see any overriding impediment or reason as to why s. 160 cannot be moved in all, or virtually all, cases where the infringement is alleged to be non-planning compliant. [...] 38.     ... I believe that there is jurisdiction in all courts vested with authority to deal with s. 160 applications to regulate their own procedures – in the case of the Circuit Court within the relevant statutory provisions and the rules of court – so as to render that procedure compliant with constitutional norms.” The Supreme Court set out the factors that a court may consider in exercising its discretion under section 160 where an applicant has shown that an unauthorised development had taken place: “90.     What, then, are the factors which play into the exercise of the court’s discretion? From a consideration of the case law, one can readily identify, inter alia, the following considerations:   - (i)     the nature of the breach: ranging from minor, technical, and inconsequential up to material, significant and gross; (ii)     the conduct of the infringer: his attitude to planning control and his engagement or lack thereof with that process: - [...] (iii)     the reason for the infringement: this may range from general mistake, through to indifference, and up to culpable disregard; (iv)     the attitude of the planning authority: whilst important, this factor will not necessarily be decisive; (v)     the public interest in upholding the integrity of the planning and development system; (vi)     the public interest, such as: - •   employment for those beyond the individual transgressors; or •   the importance of the underlying structure/activity, for example, infrastructural facilities or services; (vii)     the conduct and, if appropriate, personal circumstances of the applicant; (viii)     the issue of delay, even within the statutory period, and of acquiescence; (ix)     the personal circumstances of the respondent; and (x)     the consequences of any such order, including the hardship and financial impact on the respondent and third parties. 93.     The weight to be attributed to each factor will be determined by the circumstances of a given case. Some, because of their importance, may influence whether an order is or is not in fact made: others, the scope, nature or effect of that order. This list is not in any way intended to be exhaustive, and it may well be that other matters might require consideration in an appropriate case... However, the above list is generally representative of the type of factors which the judge will normally be called upon to consider. It is thus an appropriate framework within which to analyse the High Court’s exercise of discretion in this case...” 49 .     In finding against the respondents, McKechnie J. stated: “129.... [T]he fact of the unauthorised development being a family home will not of itself, in my view, be sufficient to persuade a court to exercise its discretion against demolition: important to that decision will be where the building has been constructed in such a deliberate and flagrant breach of the planning laws, as in both Wicklow County Council v. Fortune and here... I believe that Article 40.5 of the Constitution does not compel me to reach any different result, and that the conclusion so reached is consistent with the ECHR and with the jurisprudence of the European Court of Human Rights... I accordingly find that the test under s. 160 of the 2000 Act does not require to be recalibrated and that it was correctly applied by the trial judge in this case.” 50 .     McKechnie J concluded that all of the relevant factors, including the respondent’s connection with the area, their family circumstances, their integration into the local community and the fact that they had three school ‑ going children, had been properly considered. Finally he stated: “138.     By the application of conventional principles, which is the correct approach, the decision of the judge could not be set aside on any of the grounds argued before this court. 139.     This conclusion is entirely compatible with the Strasbourg jurisprudence, as Chapman v. United Kingdom (App. No. 27238/94) (2001) 33 E.H.R.R. 18 [in particular paragraph 102].” 51 .     In Waterford City & County Council v Centz Retail Holdings Ltd , [2020] IEHC 634, the High Court (Simons J.) explained: “53.     ... As explained by the Supreme Court in Meath County Council v. Murray, the only precondition to the institution of proceedings [under section 160 of the 2000 Act] is that the local planning authority must have formed a bona fide opinion that unauthorised development is, has been or will be carried out. There is no requirement for a secondary decision, whereby the local planning authority must engage in a proportionality test. This is because the institution of proceedings does not per se determine any rights or liabilities. The proceedings are simply a vehicle to bring a complaint before the court. The ultimate decision to grant or refuse relief is a judicial function, and issues such as proportionality and urgency can be addressed by the court.” 52.     The recent McDonagh judgment, cited above, involved a case with strong legal and factual similarities to the present applications. The Supreme Court (Hogan J) considered extensively the relevant provisions and principles of domestic law and of the Convention. The appellants in McDonagh , who were also members of the Travelling community, were in illegal occupation of land that belonged to the local authority, Clare County Council. Along with members of their extended family they had placed their caravans and mobile homes on the land. It was not in dispute that this was contrary to section 3 of the 2000 Act (see paragraph 45 above), being an unauthorised development within the meaning of that legislation. In August 2018 the Council applied to the High Court under section 160 of the 2000 Act seeking interlocutory orders compelling the McDonagh family to vacate the site immediately. The High Court granted the orders sought (on 25 July 2019), a decision that was upheld by the Court of Appeal on 12 November 2020. 53.     The Supreme Court noted that the Court of Appeal had taken the view that, in light of the particular facts of the case, the appellants’ temporary dwellings did not constitute a “home” within the meaning of Article 8 of the Convention, and that it had not considered at all the relevant constitutional provision (Article 40.5, cited above). The Supreme Court emphasised the duty of the domestic courts, in proceedings that bear upon analogous provisions of the Constitution and the Convention, to properly consider and address the constitutional provision as well, rather than examining the case in light of the Convention only. It found that the appellants’ caravans attracted the protection of the Constitution as their “dwelling”. As for whether it was also their “home” within the meaning of the Convention, it considered that this was at least an arguable proposition, having regard to the relevant case ‑ law of the European Court. The result of the Court of Appeal’s negative conclusion on this point meant that it had not analysed the proportionality, as required by Article 8 of the Convention, of the orders granted against the appellants, beyond affirming that the actions of the Council were proportionate and fair. It was therefore for the Supreme Court to perform that analysis. 54.     The central issue in the appeal was identified as the extent to which the constitutional protection of the appellants’ dwelling was diluted by the undisputed fact that they were trespassing on the Council’s property and flouting the planning laws. According to the relevant constitutional case-law, in particular the Murray case (cited above), where a dwelling has been constructed illegally, its protection under the Constitution would generally be greatly diluted and the general presumption would be very much in favour of the enforcement of the planning laws and the demolition of the building. Moreover, where the proceedings were brought by a private landowner seeking to recover possession of their land, their property rights under the Constitution and Protocol No. 1 to the Convention would have to be weighed in the balance too. 55 .     The Supreme Court then had regard to the case-law of the European Court, in particular to Winterstein and Others v. France , no. 27013/07, 17   October 2013. It observed that this precedent had not been considered in the Murray judgment and considered what difference this should make to the principles set out in the latter. It noted the different form of proceedings in the case before it compared to those decided domestically or at the European level, since it was an application for a mandatory interlocutory injunction. Such relief should only be granted where there are particularly strong and powerful reasons to do so. It should only be a stepping stone towards the trial of the merits of the case, not a means of obtaining summary judgment against the defendant. The Supreme Court further noted that, as clear from Winterstein and Others , a court must conduct a proportionality analysis before making the order sought. It considered that in one respect the approach laid out in Murray should be “re-calibrated slightly”, referring to the extent to which a court should defer to the role and judgment of the planning authorities. Therefore, as stated in Winterstein and Others , a court considering an application under section 160 of the 2000 Act must make its own independent judgment on the proportionality of the order requested. It was therefore not necessary to determine whether local authorities were themselves under an obligation to conduct a proportionality analysis prior to bringing proceedings. 56.     The Supreme Court identified two particular features of the case that merited consideration. The first was the fact that the appellants formed part of a vulnerable minority in Ireland. The second was that while the local authority had brought the proceedings in its capacity as landowner and planning authority, it also had, in its capacity as a housing authority, a specific statutory duty to offer suitable accommodation to the appellants, a duty in which it had arguably failed. That was a point to address at a later stage. 57.     Since the object of the proceedings was to obtain an interlocutory injunction, the question was whether the appellants had raised an arguable case by way of defence. The Supreme Court considered that they had, setting out the ten considerations drawn from the circumstances of the case that led it to this position (see paragraphs 106-117 of the judgment). It came to the conclusion that, at that particular juncture, the balance of convenience did not lie in favour of granting the injunction, bearing in mind the marginalised status of the appellants. Ordering them to leave the site would make them homeless with nowhere else they could lawfully go. If that were to change, however, the question of interlocutory orders might be considered differently. The Supreme Court further observed that in the present case, unlike in Murray and other domestic cases, the unlawful occupation of the land did not pose any obvious and immediate threat to the amenities of third parties or raise particular environmental concerns. Also weighing heavily against granting the injunction at that particular juncture, was the at least arguable case that the Council had not fulfilled its statutory duty to offer suitable accommodation to the appellants. 58.     The appeal was allowed, and the mandatory orders granted were discharged. Relevant international law materials The Revised European Social Charter 59 .     Ireland ratified the Revised European Social Charter on 4 November 2000 but has not yet ratified Article 31 (“the right to housing”). Article 16 states: Article 16 – The right of the family to social, legal and economic protection “With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means.” In European Roma Rights Centre (ERRC) v. Ireland (Complaint   No.   100/2013, decision on the merits of 1 December 2015) the ERRC made a complaint to the European Committee of Social Rights (ECSR) alleging both that specific legislative provisions for evictions in Ireland and the inadequate provision of sufficient Traveller accommodation breached Article 16. The ECSR found that both the insufficient provision of accommodation for Travellers and the inadequate conditions of the available accommodation were in violation of Article 16 of the Charter. The ECSR also examined complaints concerning the Planning and Development Act 2000 but found no violation of Article 16. It found that other legislation, in failing to provide for prior consultation, adequate notice or proposals for alternative accommodation before eviction, was in breach of Article 16. Recommendation 2005(4) of the Committee of Ministers to member states on improving the housing conditions of Roma and Travellers in Europe 60.     The Recommendation provides, as relevant: “Legal protection from unlawful evictions and the procedure for legal evictions 26.     ...In the case of lawful evictions, Roma must be provided with appropriate alternative accommodation, if needed, except in cases of force majeure. Legislation should also strictly define the procedures for legal eviction, and such legislation should comply with international human rights standards and principles, including those articulated in General Comment No. 7 on forced evictions of the United Nations Committee on Economic, Social and Cultural rights. Such measures shall include consultation with the community or individual concerned, reasonable notice, provision of information, a guarantee that the eviction will be carried out in a reasonable manner, effective legal remedies and free or low cost legal assistance for the persons concerned. The alterna