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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Harrington Confectioners Ltd. & Ors v. Cork City Council [2005] IEHC 227 (5 July 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H227.html Cite as: [2005] IEHC 227 |
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2005 IEHC 227
[2005 No. 80P]
BETWEEN
PLAINTIFFS
DEFENDANT
JUDGMENT of Mr. Justice Gilligan as delivered on 5th day of July, 2005.
The plaintiff in these proceedings all carry on business at Churchfield Commercial Park, John F. Connelly Road, Cork. The defendant Cork City Council originally owned the lands upon which Churchfield Commercial Park is situate and presently own the surrounding lands, John F. Connelly Road, the adjacent footpath, and the strip of land on either side of the footpath. The Commercial Park has been operating since in or about 1971 and the plaintiffs and various other persons purchased sites or units from Cork City Council by way of long leases. John F. Connelly Road is a cul-de-sac which ends in a sports ground.
Since in or about 2002 a number of caravans without any legal entitlement have entered onto John F. Connelly Road the adjacent footpath and the strip of land adjacent to the footpath and at times there were in excess of 20 caravans parked adjacent to the John F. Connelly Road and immediately adjacent to the various plaintiffs business premises. The persons involved were members of the travelling community and over the passage of time they have brought caravans trailers motor vehicles animals equipment and other matter onto the defendants lands and at times there can be upwards of 80 men women and children together with an assortment of animals. There are no sanitary facilities and the general area is used by these persons for public toilet facilities. The persons involved deal extensively in scrap metal and white goods with the added complication that they appear to remove certain parts from disused white goods for the purpose of sale leaving the remainder of the white good articles at the side of the road and in particular on the verge to the immediate north of the entrance to the recycling enterprise on John F. Connelly Road.
It is submitted on the plaintiffs behalf that the nuisance in this instance was ongoing for two and a half years prior to the institution of these proceedings and that while it is accepted that the defendant has taken some steps to ameliorate the situation the plaintiffs maintain that the nuisance continues unabated and as of 27th June, 2005 there are 13 caravans situate on John F. Connelly Road and its environs and the plaintiffs seek an injunction by way of notice of motion pending the determination of these proceedings directing the defendants to take all necessary steps to remove all trespassers from its lands situate at Churchfield and to abate the nuisance and a further injunction directing the defendant to take all necessary steps to ensure that the defendants lands are secured in a manner that is appropriate and necessary to prevent trespassers entering upon the said lands.
The defendant maintains that it has taken all reasonable steps to date to abate the nuisance and that in particular it has erected a large number of cement bollards along the areas immediately adjacent to the road surface of John F. Connelly Road and has brought about a situation whereby there is now only parking space for the 13 caravans that are in situ. The defendant maintains that it has tried albeit somewhat unsuccessfully to replace caravans that have left the area with cement bollards but this has not proved always to be possible by reason of the fact that when one caravan departs another one immediately takes it position. Further the defendant maintains that it has not adopted the area where the travelling community are situate as a halting site by reason of the fact that it has declined to provide sanitary facilities and running water. Summonses in the District Court were instituted against some of the members of the travelling community but these had to be withdrawn because of a defect and it is not possible for the summonses to be re-issued and furthermore every effort is being made to provide a transient halting facility but given the nature of the facility proposed and the difficulty including political difficulties and legal challenges the timescale for this project may have to be extended significantly and the defendants concede that the provision of a transient halting site does not represent a realistic solution to the plaintiffs problems in the short term. The defendant contends that these particular travelling people are nomadic and most if not all of them do not wish to be re-housed but simply wish to stay where they are on the John F. Connelly Road.
Extensive argument was raised before me on the hearing of the motion as regards the possibility of the defendant relying upon the Local Government Sanitary (Services) Act 1948 in dealing with the present problem and in particular s. 31 thereof. I do not consider that it is appropriate for this court to determine this issue without hearing the evidence that will be adduced at the trial of the action.
Michael Harrington on behalf of the first named plaintiff avers that he is totally frustrated about the length of time it has taken the defendant to come up with a solution to this ongoing problem and that it is the plaintiffs belief that the defendant has no real appreciation of the difficulties involved in running businesses with staff and customers at John F. Connelly Road given the nature of the nuisance being caused and permitted by the defendant on its lands by reason of the presence of members of the travelling community. The first named plaintiff refers by way of example to the ongoing problem with a FAS Training Centre on the John F. Connelly Road where the trainees were afraid to go to work unless they had transportation past the various caravans and dogs.
The defendant says in effect that it is doing its best in the unfortunate circumstances that have arisen, that it has considerable sympathy with the plaintiffs situation, but it has nowhere to re-house or re-site the relevant members of the travelling community with their caravans and that if they were forced off this site at the present time the same problem as a matter of probability would be created somewhere else.
I have sympathy for the position in which Cork City Council finds itself but it cannot seek to solve its difficulties by permitting an unlawful use to be made of its lands both on and in the immediate surrounding area of the John F. Connelly Road which has given rise to a serious nuisance which has been ongoing since in or about 2002 and which has necessitated the plaintiffs instituting these proceedings on 13th January, 2005.
In my view the defendant has not taken all reasonable steps to abate the nuisance and has not without undue delay remedied the situation when it became aware of it.
As Lord Wright stated in Sedleigh Denfield v. O'Callaghan (1940) AC 880 "the responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if with knowledge, he leaves the nuisance on his land."
In my view two significant problems that have prolonged the nuisance on the John F. Connelly Road require to be highlighted. The first is that the defendant has taken inadequate measures to ensure that new caravans cannot enter onto the road to take the place of those caravans who wish to move on as has been the situation which has occurred on a number of occasions. Secondly the defendant has taken no adequate steps to clean up the roadway and its adjacent environs of the waste and rubbish that has been dumped there by members of the travelling community and in particular the vast array of white goods at the verge to the immediate north of the recycling enterprise and if this were to be done cement bollards could be placed along this area thereby preventing its use as a parking site for caravans. I have difficulty in coming to terms with Mr. O'Brien's averment relating to the involvement of Mr. O'Mahony of the Environment Directorate of Cork City Council and his view that he did not wish to facilitate the travellers business by disposing of the white goods for them and facilitating their replacement with further white goods.
I accept that Cork City Council has never given its permission for either the trespass or the tortuous activities which are taking place on its lands but it has not taken adequate action to bring the nuisance to an end in an effective way and in these circumstances Cork City Council has with knowledge left the nuisance occurring on its lands.
The plaintiffs satisfy me that they have made out a serious issue to be tried have demonstrated the irreparable nature of the damage being sustained by them and have shown that the balance of convenience lies in favour of the grant of an injunction. In attempting to strike a balance between the parties and bearing in mind the potential difficulty of the enforcement of the requested injunction prohibiting nuisance alone I come to the conclusion that the appropriate order to be made should be in the following terms
1. An injunction directing the defendant to take all reasonable steps to remove all trespassers from the John F. Connelly Road and its environs situate at Churchfield in the City of Cork.
2. An injunction directing the defendant to take all such action as is necessary to ensure that no further caravans are permitted entry to the John F. Connelly Road and its immediate environs, pending the determination of these proceedings.
3. An injunction directing the defendant within 14 days from the making of this order to carry out a complete and extensive clean up of the John F. Connelly Road the footpaths immediately adjacent thereto and the grassed areas between the footpaths and the adjacent fences to include cleaning away all the remnants of white goods as situate on the verge to the immediate north of the recycling enterprise and to place thereon cement bollards so as to prevent further access thereto by caravans.
4. An injunction directing the defendant to take all reasonable steps to abate the nuisance upon the said lands such steps to include a general clean up of the John F. Connelly Road and its immediate environs every 21 days pending the determination of these proceedings.
5. There shall be liberty to apply to either party.
Approved: Gilligan J.