Dublin City Council -v- Gavin & Ors, High Court:Judgment was given by Mr Justice Peart on November 11th, 2009
Judgment
A Traveller family, the Gavins, should leave land they were occupying illegally and move onto the site designated for them by Dublin City Council, but Mr Justice Peart urged the council to adopt a “fresh, imaginative and realistic” approach to their concerns that their lives would be at risk if they moved to this site.
Background
The case was a continuation of an earlier case, where in December 2008 Dublin City Council had obtained a declaration that the family was trespassing on land. However, Mr Justice Peart refused to grant an injunction requiring them to leave the land given that the council accepted that there was no site available to which they could move. He adjourned the matter until the council could satisfy the court that there was some such suitable site available.
In the meantime, discussions took place between the council, the family and the Garda, and the council undertook repair work on a site in St Dominick’s Park so that it was available as a temporary unserviced site. CCTV cameras were erected to assuage the fears of the Gavin family that, if they returned, they would be the object of attacks from the McDonagh family, who occupy an adjacent site.
The Gavins made an affidavit stating that they feared they would be in imminent danger to life and limb from the McDonaghs if they were to return.
Sgt Charles McConologue of nearby Santry Garda station also stated in an affidavit that petrol bombs had been thrown at the Gavins in St Dominick’s Park on previous occasions, and there was reason to believe it would happen again.
He stated he had been a member of the Garda for 29 years and feared that if the family were to return a “serious, perhaps even fatal incident will occur”. He also stated that the Gavins were a decent and law-abiding family, mainly composed of women and children.
The council stated that it had fulfilled its statutory duty in making the site available. It also stated that the family’s safety was a matter purely for the gardaí, and the council had no role in protecting the family from threatened violence, only to provide a site safe in the physical sense.
The family contended they should not be required to return to St Dominick’s Park, from which they had previously fled due to intimidation, unless they had some form of 24-hour protection.
Decision
Mr Justice Peart said he had hoped that following his earlier judgment, meaningful steps would be taken by the council to address what seemed to be the very genuine concerns of the family as to their safety, which were shared by Sgt McConologue.
One possibility was that a high wall or boundary be erected in St Dominick’s Park to separate the site from that occupied by the McDonagh’s, which had not happened.
He said it was the responsibility of the council to make suitable provision for the accommodation of Travellers, and matters of law and order fell solely within the remit of the Garda. However, it could not be said that there was an onus on gardaí to provide some form of round-the-clock protection to the Gavin family. Their role would only be relevant in the aftermath of an attack, which would not be any comfort to the defendants in the case.
The court’s function was limited in this application. He felt obliged to make the orders sought by the plaintiff council, given that there was an unserviced site available.
However, in recognition of the very real problems facing the family, he placed a three-month stay on the orders in the hope that meaningful discussions would take place between all relevant parties as to what course is to be adopted in the future, and he said he hoped that something more than the installation of CCTV cameras could be considered to provide some encouragement to the defendants to resume their lives in St Dominick’s Park.
The full judgment is on www.courts.ie
Conleth Bradley SC and Ray Delahunt BL, instructed by Terence G O’Keeffe, for the plaintiff; John L O’Donnell SC and Dara Dowling BL, instructed by Brophy solicitors, for the defendants