High Court allows eviction of illegal occupiers on unregistered land despite procedural defects in CPO notice service.

THE HIGH COURT

[2026] IEHC 309

[Record No. H.P.2025.001007]

BETWEEN

DUBLIN CITY COUNCIL

PLAINTIFF

AND

ROBERT O’REILLY,

AIDAN KELLY,

KAT IREMONGER,

S.B,

S.K,

ALEXANDER ENE,

JOHN MOORE

AND

PERSONS UNKNOWN IN OCCUPATION OF THE PROPERTY KNOWN AS 18

CADOGAN ROAD, FAIRVIEW, DUBLIN 3

DEFENDANTS

JUDGMENT of Mr Justice Liam Kennedy delivered on 21 May 2026.

Introduction

1. The plaintiff brought these proceedings to require the defendants to vacate a Property on unregistered land (“the Property”) at 18 Cadogan Road, Fairview, Dublin which it claims to have acquired as a result of a Compulsory Purchase Acquisition (“CPO”) pursuant to the Derelict Sites Act 1990 and which, it says, they are illegally occupying. It claims to own the Property on foot of the CPO and to need urgent access to address its dangerous and dilapidated condition, to refurbish it and to include it in its social housing stock. For the reasons outlined below, I consider that it is entitled to the orders sought. Although the defendants have established that notice of the CPO was not correctly served on the third defendant and other occupants as required by the Act, they were in fact on notice and their participation in the process and their failure to challenge the outcome of the CPO and their delay debars them from belatedly challenging the plaintiff’s title as a defence in these proceedings. While sympathising with the defendants given their housing difficulties, I consider that the orders sought are necessary and proportionate being required in order to vindicate the plaintiff’s legal entitlements and to allow it to meet its obligations both under the Act and in respect of social housing. Such orders are in the public interest, notwithstanding their impact on the defendants.

The Defendants

2. The plaintiff initially named as defendants seven individuals along with “persons unknown in occupation” of the Property. However, although they participated at earlier stages of the proceedings, only the third and sixth defendants attended the specially fixed hearing in July 2025. Accordingly, at the end of the evidence, I granted the plaintiff’s application for judgment and orders against the other defendants. References to the defendants in this judgment are therefore generally to the two “live” defendants, both of whom were unrepresented. The third defendant was assisted by a McKenzie friend. For particular reasons she needed to use an iPad to communicate her submissions and evidence to the Court and her McKenzie friend relayed her testimony and submissions to the court verbatim on her behalf. All parties were satisfied with the unusual arrangement proposed by the third defendant and it worked well in practice. The defendants presented their case with passion, conviction and skill.

Peripheral Issues, Points not pursued or unsupported by the evidence

3. I do not propose to dwell on points which were peripheral to the issues I must decide or which were not pursued at the hearing or supported by the evidence, such as the following: a. although the evidence confirms that the plaintiff learnt of the defendants’ occupation of the Property in or around April 2023 as a result of complaints from neighbours alleging illegal electrical connections, fire safety concerns, air pollution, intimidation and noise, it is not necessary for me to assess the merits of such complaints. b. The defendants previously adverted to the possibility of their ultimately securing an ownership interest in the Property on the basis of adverse possession, however, at the hearing they confirmed that they were not claiming to have already acquired title on that basis, nor were they asserting an automatic right to remain in the Property long enough to do so.

I discuss below their actual position, which was that, as the party in possession of the Property, their rights took precedence over any party which could not show better title (including the plaintiff, prior to the valid completion of a CPO). c. Whether the defendants’ actions were illegal in the criminal sense. The defendants objected to the description of their occupancy as illegal or unlawful (as implying criminality), but the plaintiff made clear that it was not alleging criminal offences by the defendants but submitting that the occupation was unlawful as the defendants had no occupancy right and were trespassers, illegality in the civil sense. d.

An altercation on 27 September 2024 between the fifth defendant and a neighbour after the latter was allegedly woken during the night by smoke entering his home from the Property which, the defendants say, put the neighbour, and thus the plaintiff, on notice of the identity of the fifth named defendant. The latter did not contest the proceedings at the hearing and the point does not avail other defendants. e. The adequacy of the plaintiff’s housing policy and the effectiveness of its attempts to address other derelict sites. The defendants did not take issue with the legitimacy of the social goals of the housing policy but questioned the plaintiff’s commitment to it and its failure to tackle other derelict sites.

The defendants are entitled to their opinions as to appropriateness of particular public policies and the effectiveness of their implementation, however, from a legal perspective the plaintiff’s evidence confirmed the bona fides and objective legitimacy of its intention to tackle both social housing needs and derelict sites; the defendants are entitled to criticise its efforts on both counts but such criticisms do not provide a legal defence to the claim in these proceedings.

Core Issues

4. The core issues are whether, as a result of the Vesting Order, the plaintiff owns the Property and, if so, whether it is entitled to orders requiring the defendants to vacate or whether, as the defendants contend, such orders would be disproportionate or would breach their rights under Article 8 of the European Convention on Human Rights (“ECHR”) and Article 40.5 of Bunreacht na hÉireann. Therefore I need to consider the following issues: a. Were the statutory notice requirements met? Were the defendants entitled to notice? If so, was it duly given? b. If the notice requirements were not met, does it invalidate the CPO? c. If the CPO process was valid is the plaintiff entitled to an order requiring the defendants to vacate? Would such an order be proportionate?

The Background

5. There were six witnesses, four from the plaintiff and the third and sixth defendants. While the witnesses disagreed on some points, I considered each to be testifying truthfully according to their individual perspectives. There was much common ground and the areas of disagreement, particularly to the extent that they reflected political views or philosophies, did not seem to me to be material to the determination of the proceedings. The evidence established the following chronology and these facts were, save as noted, either common ground or confirmed by unchallenged or overwhelming evidence; a.

The property was previously owned by a Ms Mary Butler who appears to have died in 2009, or perhaps earlier. The plaintiff initially entered the Property into the Derelict Sites Register (“the Register”) in 2016 and commenced a CPO process but that process was halted and the Property was removed from the Register following engagement with a relative of the deceased owner. However, hopes that the owners would restore the Property were not fulfilled. While some improvement works were initially undertaken, the property soon fell into disrepair once again.

Accordingly, the property was duly re-entered on the Register following the posting of the requisite notice on the property in May 2022 (and placed on the Derelict Site Register on 8 July 2022); significantly, this took place well in advance of the defendants occupying the Property, confirming that Council was taking steps to address the derelict site prior to the defendants moving in. In October 2023, the Council issued a notice of intention to acquire the Property compulsory. b. However, in the meantime, a group of individuals, including the defendants, entered and took possession of the Property.

In around August 2023, Mr Wall, a neighbour, noticed that certain people had moved in but cannot identify exactly who they are. The defendants say they moved in earlier although there are some inconsistencies as to the precise date. All appear to have been homeless or at risk of homelessness and several appear to have been vulnerable in certain respects. Inconsistent dates were suggested by various witnesses in their affidavits, oral testimony or CPO objections in respect of their occupation. For present purposes it suffices to note that, although a different date was suggested in her objection to the CPO, according to the third defendant’s affidavit she has occupied the Property since March 2023 whereas the sixth defendant moved into the Property in November 2023 (after the CPO process had commenced). c.

On 14 August 2023 the plaintiff informed solicitors thought to represent the estate of its intention to acquire the premises; the latter replied that they had no instructions. d. On 2 October 2023 the plaintiff posted notice of its intention to acquire the Property by fixing the notice to the outside of its garden railings. The deadline for objections was 3 November 2023. Although the sixth defendant was not then living in the Property, the other defendants, including the third defendant, objected, claiming the CPO should be rejected on the basis of their urgent need for housing and their intention to adversely possess the premises. e. In the light of the objections, on 30 November 2023 the plaintiff applied to An Bord Pleanála for permission to acquire the Property.

The latter inspected it on

30 April 2024, resulting in an inspector’s report dated 15 May 2024 (which rejected the objections, concluding the CPO was necessary to render the site non-derelict). An Bord Pleanála consented to the acquisition on 30 July 2024 and notified its decision to the objectors (including the third defendant). The order vesting the Property in the Plaintiff took effect on 22 August 2024. The defendants have never sought to challenge the vesting order.

The Statutory Framework

6. The plaintiff’s claim to title pursuant to a CPO depends on whether it complied with the requirements of the Derelict Sites Act 1990 (“the Act”). Accordingly, it is necessary to identify the Act’s key provisions, which, as its long title explained, sought to prevent land being or becoming a derelict site and to enable local authorities to acquire derelict sites compulsorily in certain circumstances. In particular: a. section 3 defined “derelict site” as meaning any land which: “detracts, or is likely to detract, to a material degree from the amenity, character or appearance of land in the neighbourhood of the land in question because of—

(a) the existence on the land in question of structures which are in a ruinous, derelict or dangerous condition, or

(b) the neglected, unsightly or objectionable condition of the land or any structures on the land in question, or

(c) the presence, deposit or collection on the land in question of any litter, rubbish, debris or waste, except where the presence, deposit or collection of such litter, rubbish, debris or waste results from the exercise of a right conferred by statute or by common law”. In Hussey & Ors v Dublin City Council [2007] IEHC 425, the High Court helpfully analysed the statutory definition. b. The Act dealt with measures to prevent and control such derelict sites. Section

9 imposed a duty on every owner and occupier of land, including statutory bodies and State authorities, “to take all reasonable steps to ensure that the land does not become or does not continue to be a derelict site”. c. Section 8 required every local authority to maintain the Register of derelict sites and to notify any owner and occupier of land, “where they can be ascertained by reasonable enquiry” before making any entry on the Register in relation to such land and to consider representations from the owner or occupier “as they think proper having regard to such representations”.

The section also provides for the removal of entries in the Register in appropriate circumstances. d. Section 10 obliges every local authority “to take all reasonable steps (including the exercise of any appropriate statutory powers)” to ensure that any land situate in their area “does not become or continue to be a derelict site”. e. Section 11 empowers the authority to serve a notice (a s11 notice) “on any person who appears to them to be the owner or occupier” to require measures to be taken in relation to derelict sites where, in the authority’s opinion it is necessary to do so, to prevent the land “from becoming or continuing to be a derelict site” giving owners or occupiers a right to make representations and requiring them to “comply with the requirements of the notice, or, as the case may be, the notice as amended”, failing which the authority may “take such steps (including entry on land by authorised persons in accordance with section 30) as they consider reasonable and necessary to give effect to the terms of the notice or the notice as amended, as the case may be”, at the owner or occupier’s expense. f.

Section 14 provides that local authorities may - by agreement or compulsorily - acquire derelict sites. Section 15(1) requires any authority intending to compulsorily acquire a derelict site to notify their intention by publication in a newspaper and to “(b) serve on every owner, lessee and occupier (except tenants for a month or a period less than a month) of the land a notice in the prescribed form stating their intention to acquire the derelict site compulsorily under this Act, describing the derelict site to which it relates, naming the place where a map of the derelict site is deposited and the times during which it may be inspected and specifying the time within which (not being less than one month) and the manner in which objections to the acquisition of the derelict site may be made to the local authority”. (emphasis added) a.

Section 15(2) effectively defines “owner” in this context as the party for the time being entitled to dispose of the fee simple, and as including any person entitled to the rents and profits of the land under a lease or agreement, the unexpired term of which exceeds three years. (As opposed to the Act generally, s2(1) of which provides that, in the Act, other than in s15, “owner” in relation to land, “means a person, other than a mortgagee not in possession, who whether in his own right or as trustee or agent for any other person, is entitled to receive the rack rent of the land or, where the land is not let at a rack rent, would be so entitled if it were so let”.) b.

Section 16 (as amended) provides that any persons served with notices of a proposed CPO may object; and that, unless any such objection is withdrawn, the local authority will require An Bord Pleanála’s consent to proceed with the CPO. c. S16(4) specifies the requirements for such an application for such consent, which must be accompanied by, inter alia, “the objection duly made to the local authority in pursuance of this section in relation to the compulsory acquisition and not subsequently withdrawn, the comments of the authority (if any) on the objection and such other documents and particulars as may be prescribed”. d.

S16(5) requires An Bord Pleanála to send a copy of such comments to the objector(s) who may, within twenty-one days, make observations to An Bord Pleanála in relation to the Authority’s comments.

e. Section 17(1) provides that where the local authority has complied with the provisions of s15 in relation to any derelict site and An Bord Pleanála has consented to the CPO, the local authority may acquire the derelict site by making an order (known as a vesting order). (The primary issue in this case is whether the plaintiff complied with s15 or whether a failure to properly serve the defendants meant that the requirements of s15, and consequently s17, were not met). f. Section 17(3) deals with the requirements as to notification of the making of such a vesting order, including an obligation to: “(b) serve on every person appearing to them to have an interest in the derelict site to which the order relates a notice stating that the order has been made and the effect of the order”. g. Section 18(2) deals with the vesting order’s form and effect and the registration of the title acquired thereby stipulating, inter alia that it: “… shall operate to vest the derelict site to which it relates in the local authority in fee simple free from encumbrances and all estates, rights, titles and interests of whatsoever kind on a specified date (in this Act referred to as the vesting date) not earlier than twenty-one days after the making of the order…”. h. Section 18(4) provides that the local authority shall send any such order to the land registry which shall cause the local authority to be registered as owner of the land. S18(5) also empowers the local authority to amend any vesting order if satisfied on the application of any “interested person” that it contains an error or mistake. i. Section 19 provides for applications for compensation following a CPO by any person who “has any estate or interest in or right in respect of the derelict site acquired by the order”.

j. Section 20 provides that the local authority may use any derelict site so acquired by them “for any purpose connected with their functions” or, if the site is not required by the authority may sell, let, transfer or exchange the derelict site. k. Section 29 provides, inter alia, that a local authority may, by notice in writing, require the occupier to state in writing within a specified time “particulars of the estate, interest, or right by virtue of which he occupies such structure or other land or receives such rent (as the case may be), and the name and address (so far as they are known to him) of every person who to his knowledge has any estate or interest in or right over or in respect of such structure or other land”. Failure to comply with such a notice is an offence punishable on summary conviction by a fine not exceeding €1,000.

The Evidence

7. In keeping with its obligations under the Act, Objective CS011 of the plaintiff's development plan stipulates that it is an objective of the plaintiff to deliver development through the use of the Act and through the compulsory purchase of land as part of active land management to achieve the objectives of compact growth and the proper planning and sustainable development of an area.

8. Complaints received by the plaintiff were appended to its CPO application to An Bord Pleanála, which noted that the issues included the disintegration of the rear roof causing dampness to adjoining properties, a boarded-up window, missing windows to the rear, a broken rear door, and a pigeon infestation.

9. An external site inspection by the plaintiff on 28 November 2023 confirmed that there was construction rubble and litter in the front garden area, the stonework was cracked and missing in the front driveway area, the front gate was attached to the front railings by wire, there was a wooden board across a section of the front door, the paintwork on the front door, front railings and gained gate was peeling, the brickwork in front of the building needed cleaning, the bottom section of the ground floor was covered with plastic sheeting rather than glass, all of the upper and lower floor window ledges were unpainted, the paintwork on the rear windows was in poor condition, the rear garden area was overgrown with weeds and vegetation as well as littered with discarded household objects.

10. The Property having been returned to the Register, such complaints and the site inspection report were the backdrop to the plaintiff’s decision to commence the CPO process, publishing a note on the outside of the railings of the Property in purported compliance with s15 of the Act. By email dated 4 November 2023 the third defendant objected to the CPO on the grounds that the Property had been her home since March 2023, she had put a huge amount of work, time and money into making it liveable and she and the other occupants intended to work towards “taking ownership of the building through adverse possession.” The other occupants lodged similar objections.

11. The witnesses called on the plaintiff’s behalf testified - and, save for the legal

conclusion as to the notification issue considered below, I accept their evidence - as to: (a) the derelict condition of the Property; (b) the plaintiff’s intention to repair and refurbish it and to use it for urgently needed social housing; (c) the processes followed under the Act, including the CPO process up to and including the Vesting Order; (d) the plaintiff’s intention was to refurbish the Property, restoring it to the necessary standard so as to house appropriate qualifying candidates on its social housing list; (e) that the defendants’ occupancy was preventing and delaying its accessing the Property so as to carry out urgent repairs and refurbishment so as to render it non-derelict and make it available for social housing as soon as possible.

12. The two defendants questioned the plaintiff’s commitment to those goals and its alleged failure to tackle other derelict sites. However, the plaintiff’s evidence confirmed the authenticity of its intention to tackle both social housing needs and derelict sites (even if the defendants criticise the effectiveness of such efforts). The defendants’ points reflected their beliefs on matters of policy and politics rather than addressing or advancing the legal issues in these proceedings; such criticisms are a matter for the hustings. They do not provide a legal defence to the claim or a basis to impugn the plaintiff’s actions.

13. The plaintiff’s application to An Bord Pleanála noted the objections received from "objectors/illegal occupants" submitting that if the objectors were occupiers, then such occupation was illegal and had no bearing on the plaintiff's proposed acquisition because illegal occupation was not a valid grounds for objection; illegal occupants were not lawful entitled to object to the CPO. While seeking the dismissal of the objections as, the plaintiff submitted that the claim that the property was no longer derelict was clearly incorrect, noting that there was no evidence from the objectors as to what work had been done whereas the plaintiff's evidence included objective evidence such as photographs which clearly undermined that claim.

14. The An Bord Pleanála inspection report dated 30 April 2024 recorded the conclusions reached in the course of its site inspection, considering the objections and the plaintiff's submissions and concluding that the site fell within s3(b) due to the land and structure being in a neglected, unsightly and objectionable condition. Rather than rejecting the occupants’ standing to object as the plaintiff had proposed, it considered (but rejected) the substance of the objections, independently confirming that the Property was derelict within the meaning of the Act due to the land and structure “being in a neglected, unsightly and objectionable condition”, concluding that “no substantive works have taken place to the subject property to render it non-derelict”. The report did not conclude that the structure was likely to be in a dangerous condition or consider that it fell within category s3(a) or s3(c) but concluded that the Property was nevertheless derelict under s3. It noted that owner/occupiers were obliged (under s9) to “take all reasonable steps to ensure that the land does not become or continue to be a derelict site” and that, despite the significant periods elapsed since the plaintiff raised the issue of the Property’s dereliction, there was no evidence of any further attempt to render it non-derelict and the property remained in a neglected, untidy and derelict condition. The report recommended consenting to the CPO application noting that: (a) the plaintiff's procedures had been fair and reasonable; (b) it had demonstrated the need for the lands and (c) the acquisition was necessary to ensure that the site did not continue to be derelict. The report also confirmed that the inspector considered "having regard to the constitutional and convention protection afforded to property rights" that the acquisition would was sufficiently connected to a legitimate objective in the public interest, namely ensuring that the lands did not remain derelict and that the author had considered alternative means of achieving that objective but was satisfied that none of the alternatives were such as to render the means chosen and the CPO unreasonable disproportionate. The inspector was also satisfied that the CPO would be consistent with the plaintiff’s city development plan’s policies and objectives and that the confirmation of the CPO was justified by the exigencies of the common good.

15. The third defendant's affidavit stated that she moved into the premises in April 2023 (rather than March as her objection had suggested), devoting a huge amount of time and money into "fixing the place up and removing it from a state of dereliction" referring to effort and expenditure to have drains cleaned, gates and windows fixed, doors and window frames repainted and undertaking extensive interior work "to make it a safe and habitable home". She also noted that she had lived in social housing for much of her teenage years and was at risk of homelessness if the CPO was upheld. She stated that she was impecunious, had had "fairly serious health issues” and was “on disability" and she was concerned that the CPO would put her and other residents in a difficult position "robbing us of our home and the hard work we have put into it". The sixth defendant’s testimony was to similar effect, but he was not occupying the Property at the time of the commencement of the CPO (and thus had no entitlement to notification).

16. Neither defendant was on the plaintiff’s social housing list. The sixth defendant states that when he sought to join the social housing list prior to moving into the Property he was told to "go back to Romania". Understandably, he considered that such a comment discriminated against on the basis of race/national origin as a Roma. However, he did not pursue a complaint in respect of that comment and therefore it was only disclosed the plaintiff in the course of these proceedings. The plaintiff’s representatives accepted that any such comment would have been entirely inappropriate. However, the plaintiff could scarcely respond to the issue when the sixth defendant failed to complain at the appropriate time. Accordingly, I can make no findings with regard to that point.

17. Neither defendant satisfactorily explained their failure to apply and maintain their application for admission to the plaintiff’s housing list. There is, admittedly, a long waiting list, reflecting the scale of the current housing crisis, but it would have been prudent for the defendants to have joined the list as early as possible and to have maintained those applications. Their failure to do so is considered in the context of the proportionality assessment.

The Parties’ Positions

18. The plaintiff claims ownership of the Property pursuant to the 22 August 2024 vesting order (which appears undisputable unless, as the defendants submit, the CPO and vesting order were void), submitting that the defendants must vacate because it owns the Property and requires access to repair and refurbish it, to prevent it from deteriorating further, to end its derelict and dilapidated condition and to make it available as social housing.

19. The defendants’ primary ground for resisting the application was their contention that the CPO was void due to irregularities in complying with what they characterise as statutory preconditions, invalidating the plaintiff’s alleged title. This turns on what the defendants candidly described as a narrow and technical requirement and requires an analysis of the statutory provisions to determine whether notification requirements were met and, if not, the consequences. It is a point only available to the third defendant since the sixth defendant was not an occupant in the Property at the time of the commencement of the CPO.

20. The third defendant argued that; (a) being in physical possession at the time of the commencement of the CPO, she had superior rights of possession as compared to other parties, including the plaintiff at that time, so it was required to notify her and the other occupants of the proposed CPO; (b) they enjoyed common law “possessory title” and must be deemed lawful occupants with a better right of possession than any party unable to show a superior title. They accepted that they could not have asserted such a possessory title or claimed to be lawfully in possession in response to a claim by the legal or beneficial owner (presumably the representatives of the former owner’s estate) but maintained that, pending the completion of a valid CPO, they could assert possessory title as against the Plaintiff which, by definition, had no interest in the Property at that point and therefore was required to treat them as lawful and to notify them of the proposed CPO.

21. The third defendant was in fact on notice of the CPO application and made submissions in opposition to it, but she argued that that was irrelevant because the plaintiff had not met the formal statutory notification requirement to ground a valid CPO. They submitted that the notice requirements were a statutory precondition; there could be no abridgement of the requirement.

Collateral Challenge and delay

22. The plaintiff submitted that its title was confirmed by the vesting order and any challenges to such a vesting order must be positively asserted by objectors in independent and timely judicial review proceedings – it was inappropriate for the defendants to belatedly mount a collateral attack on the vesting by way of defence to these proceedings. The plaintiff submitted that the defendants’ delay disentitled them to challenge the August 2024 vesting order. The challenge (by way of defence in these proceedings) was only articulated on 23 April 2025. Both parties cited the decision of Simons J in Tobin v Limerick City and County Council & Ors [2023] IEHC 626 (“Tobin”), which dismissed an attempt to seek judicial review to challenge a vesting order by reason of delay in challenging a CPO, noting that the authorities confirmed that that time limit could only be extended where the applicant established “good and sufficient reason”, outside the applicant’s control, to explain and objectively the delay. The Court also noted that the challenge was brought outside the time for seeking judicial review. Also in Doran v Tailte Éireann [2023] IEHC 209, O’Donnell J refused leave to apply for judicial review of an arbitration award (in the context of the acquisition of an interest under the Grounds Rents Legislation) - the application was out of time and the application to challenge the vesting certificate was a collateral challenge to the associated arbitration award. The defendants acknowledged that leave to apply for judicial review must be sought within prescribed time limits but submitted that they did not initiate these proceedings and were not seeking to, so the failure to comply with the judicial review time limit was irrelevant.

The Notification Issue

23. As noted above, the main issue raised by the defendants as to the validity of the CPO concerned compliance with s15(2)(1)(b). The evidence confirms that the plaintiff affixed the requisite notice to the outside of the railing which fenced the Property’s perimeter, but the defendants say that this was insufficient as that notice was not addressed to the defendants individually as required by s.15 and because it should have been placed inside the railing or on the door of the Property. The plaintiff replies that: (a) the defendants were illegal occupants and were therefore not entitled to notification; (b) nevertheless, they were in fact on notice as a result of the fixing of the notice to the railing and this is confirmed by the fact that the third and other defendants raised objections to the CPO application – they were not prejudiced by any lack of notice as they availed of their right to participate in the process; (c) the defendants’ identity was unknown to the plaintiff at the relevant time – it only knew that individuals were illegally occupying on the Property; (d) its advertising in the Irish Independent on 2 October 2023 and its fixing the notification on the railing were the only practical means by which it could notify the occupants; and (e) such steps satisfied the statutory requirements if they did apply but there was no obligation to notify the defendants in any event. Being in illegal occupation they were not "entitled such occupation or to any immediate use and enjoyment of the land" (in s6 terms) nor did they have any rights equivalent to a tenant for more than a month, the minimum "right" giving rise to an entitlement to be notified; (f) the defendants were estopped from taking issue with the validity of the commencement of the CPO process by virtue of their delay, their participation in the process and their failure to take steps to seek judicial review following the Vesting Order.

24. The defendants’ submissions said that they are the Property’s “rightful owner”, having acquired it by possession in the course of 2023 and that their occupation had not been shown to be illegal. This submission seemed to be premised on a denial that the defendants had committed a criminal offence or “broken any law” the submissions adding, somewhat cryptically, that “while some illegal activity around the electrical connection may have been alleged, this does not render the occupation illegal”. The defendants cited Lyall, Land Law in Ireland, 3rd edition (Round Hall, 2010) as establishing common law possession as a basis of title. They argued that a person in actual possession of land had the right to possession as against everyone except persons who could show better title, citing Kennan v Murphy (1880)

8 LR IR 285 and Webb v Ireland [1988] I.R. 353, [1988] I.L.R.M. 565 and submitting that they met the test for possession at common law, evidencing physical control and an intention to control, as per JA Pye (Oxford) Ltd v Graham [2003] 1 A.C. 419. They also submitted that such possessory rights are proprietary rights can be enforced by a court and that if the occupier of land is wrongly dispossessed, they can bring an action to reclaim possession. They noted that prior possession is sufficient to ground an action for trespass, citing Hume v Tennyson [1987] NI 139, [1987] 2 NIJB 12. Accordingly, the defendants said that; (a) they enjoyed “possessory title” by dint of occupation; (b) being in physical possession of the Property since 2023 they held such possessory title as against all parties (save those who demonstrated a better title); (c) they are were lawful occupiers within the meaning of section 15(1)(b); (d) they were entitled to be individually notified of the proposed CPO but were not so notified in accordance with s15 and s6; (e) the CPO was void because that mandatory precondition was not met. Unlike the applicant in Tobin, who was not in actual possession/occupation of the land, nor was it his home, the defendants said they had “full title” at the time of the purported vesting order. The Property was their home, and, unlike Mr Tobin, they could assert constitutional and ECHR rights. They could not possibly lack standing to challenge the title of a plaintiff seeking a remedy for trespass. The defendants also submitted that, as the plaintiff was seeking equitable relief, the court had a wide jurisdiction to do what was fair, just and equitable and that it would be perverse to claim that the defendants could not challenge the basis for the plaintiff's title when the plaintiff’s claim depended on that title. It was not a “collateral challenge” because the plaintiff's title was central to its case.

Developments following the hearing

25. For completeness I should note that while I reserved judgement at the end of the hearing, I encouraged the defendants to offer undertakings to allow the plaintiff to inspect the Property periodically pending delivery of judgement. In the event, the issues identified in the course of those inspections were even more serious than those which had led to the original identification of the property as derelict and dilapidation. The new evidence significantly reinforced the plaintiff’s concern as to the Property’s worsening condition, leading it to leading it to serve a notice pursuant to s.11 requiring the defendants to vacate it and to carry out specified repairs which were which, the plaintiff believed, urgently required. The plaintiff was not satisfied with the defendants’ response and accordingly re-entered the application before me, seeking interlocutory orders in view of the urgency of the matter. Having reviewed the evidence in support of that application and having heard submissions, I concluded that the plaintiff had established a strong argument as to its entitlement to such interlocutory relief (whether on foot of the s.11 notice or in respect of the substantive claim in the proceedings) and that the balance of justice favoured such relief in view of, inter alia, the deterioration of the condition of the Property, the risk to neighbouring properties and to the occupants of the property and adjoining properties. I directed the defendants to vacate the property and they undertook to do so. Accordingly, the position has changed as a result of the interlocutory application. Nevertheless, this judgment determines the substantive proceedings.

Analysis

Issue 1 - What were the notice requirements and were they met?

26. As noted in para. 6(f) above, section, s15(1)(b) requires any local authority intending to acquire any derelict site compulsorily to notify their intention in a newspaper and to serve a notice in prescribed form “on every owner, lessee and occupier (except tenants for a month or a period less than a month) of the land a notice in the prescribed form…”. (emphasis added)

27. Section 6 provides that: “6.—(1) Any notice required to be given or served on a person under this Act shall be addressed to the person concerned and shall be given or served on him in one of the following ways:—

(a) where it is addressed to him by name, by delivering it to him;

(b) by leaving it at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter, addressed to him at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(d) …

(2) Where the name of … the occupier … cannot be ascertained by reasonable inquiry, a notice may be addressed to … “the occupier” … without naming him”. (emphasis added)

28. No authority was cited by either party in respect of the interpretation of the term “occupier” in this context save for the definition in s2 (1) of the Act itself which confirmed that in the Act: “occupier”, in relation to land, includes any person in or entitled to immediate use and enjoyment of the land, any person entitled to occupy the land and any other person having, for the time being, control of the land”. (emphasis added)

29. As noted above the prescribed notice was attached to the outside of the railing surrounding the Property. However, it was not specifically addressed to the third defendant, the only occupant or defendant who contested the proceedings at the hearing and who claims to have been an occupier at the relevant time. It was merely addressed to “the occupants” generally. It certainly came to her attention because she and the others then in residence objected to the CPO.

30. The defendants submit that the statutory requirements were not adhered to. They accepted that if service had been effected by actually delivering the Notice to the Property (as opposed to affixing to the outside of the fence) and if the notice were addressed to each occupant by name then this would have sufficed, by virtue of leaving it at the address where the Occupants ordinarily reside in accordance with s6(1)(b). However, the notice was invalid as it was not addressed to each occupant by name and delivered to the Property itself.

31. The plaintiff says that there was no obligation to notify the defendants. They were neither owners nor lessees. The issue is therefore whether they were “occupiers” within the meaning of s15(1)(b). They were in physical possession of the Property at the relevant time - de facto if not de jure occupiers. It submits trespassers, occupying the Property unlawfully are not “occupiers” for the purpose of s.15. While the legislation does not expressly restrict the entitlement to lawful occupiers, the plaintiff says that this is implicit - the Oireachtas cannot have intended to confer such notification entitlements on parties trespassers who had no lawful right to be on the Property and such a legislative intention is confirmed by the fact that the provision expressly limits the notification entitlement to tenants with a right of tenure of a month or more. Trespassers have no right of tenure at all, so it would be absurd to accord greater notification entitlements to parties unlawfully trespassing with no rights of tenure and no legal interest than to lawful, short term, tenants; trespassers could not have better rights than legitimate tenants.

32. The plaintiff relied on Tobin upon to support its submissions as to the meaning of “occupier” and the s15 notification requirement. That case concerned an application by an undischarged bankrupt to challenge vesting orders in respect of properties which formed part of his estate in bankruptcy (and in respect of which the ownership interest therefore vested in the Official Assignee. The applicant had been served with notice of a first CPO – apparently in error since the property had vested in the Official Assignee – but not a second one, raising a question as to the interpretation of s16(1) which Simons J noted at para 19: “… the class of person entitled to object is defined by reference to service rather than ownership or occupation. The sense of the legislation appears to be that the only persons entitled to object are those identified in the preceding section, i.e. every owner, lessee and occupier of the land (except tenants for a month or a period less than a month). Yet on a narrow reading, the mere fact that someone had been served with a notice, even if erroneously served, might be sufficient to trigger an entitlement to object…the Applicant in the present case seeks to rely on the happenstance of his having been served notice in respect of the first of the two parcels of land to ground a right to object”.

33. The respondent in Tobin did not regard the applicant’s objections as valid and it issued vesting orders without seeking consent as required by a valid objection. The challenge to the first vesting order foundered due to the applicant’s delay. The second depended on whether the applicant had a right to object in any event. He was neither owner, nor occupier, nor was (either) property his dwelling. He had lost his ownership interest when adjudicated bankrupt and the Court dismissed his attempt to assert a right of occupancy on foot of an implied bare licence, observing at para 20 that: “There is no evidence before the court of any supposed actions on the part of the Applicant which might be sufficient to constitute occupation of the lands”

34. Although the plaintiff relied on Tobin as confirming that a bare licence was not sufficient to render the applicant an “occupier” (from which it would follow that the defendants status as trespasser would not have that effect), my interpretation is that the Court concluded that the applicant had not established that he was an occupier on foot of even a bare licence, so the Court did not need to determine the sufficiency of any such interest in the context of the right to object (or to be notified of the CPO). Indeed, as appears from para. 22, the applicant claimed standing purely on the basis that he had been served with notice of the intended CPO of the first parcel, submitting that once served with such a notice (even in error), the person served enjoyed a statutory right to object and was not required to establish that they were the “owner” or “occupier”. He also sought to challenge the constitutionality of the Act and its validity by reference to the ECHR but the Court dismissed such challenges on the basis of its finding at para.24 that such grounds of challenge were predicated upon alleged breaches of the applicant’s property rights and that: “In circumstances where the only interest asserted by the Applicant is a bare licence revocable at will, and where the Applicant has failed to put forward any evidence on affidavit to substantiate this asserted interest, he has failed to establish even an arguable case that any property right of his has been “engaged” under either the Constitution of Ireland or the European Convention”.

35. It seems to me that that Tobin did not determine whether a bare licence would have been a sufficient interest if substantiated by the evidence. The plaintiff also emphasised Simons J’s observation at paras 28 & 29 that: “The range of persons who might legitimately be said to be adversely affected by a decision to acquire land compulsorily is limited to those with a proprietary interest in the relevant land. The range of persons with a “sufficient interest” will, normally, be confined to the owner, lessee and occupier of the land to be acquired. This is the class of person identified under the Derelict Sites Act 1990 and for whose benefit the statutory procedure has been provided. The statutory right to object is confined to this class and there would have to be some unusual feature present before a person outside that class could demonstrate a sufficient interest to maintain judicial review proceedings”.

36. I respectfully agree with that observation, but I am not sure that it assists the plaintiff because the Court had determined that the applicant was neither owner nor occupier. In the absence of evidence of even a bare licence, it did not need to determine whether it fell within the term.

37. Accordingly, I am not convinced that Tobin greatly assists in respect of the meeting of the term “occupier”. Nor am I am convinced by the plaintiff’s argument on this point. Clearly, to come within s15(1) (b) the third defendant needed to be an “occupier” within the meaning of the (inclusive) s2 definition. She was neither “entitled to immediate use and enjoyment of the land” nor, notwithstanding the assertion of possessory title, do I accept that, on the plain reading of the Act, trespassers could be described as “entitled to occupy the land”. However, I consider that, even leaving aside the inclusive nature of the definition, she was a person “having control of the land for the time being” bringing her within the definition on its ordinary and natural reading. To reach the alternative conclusion urged on me by the plaintiff I would need to read the word “lawful” into the definition on the basis that the Oireachtas cannot have intended to grant rights to unlawful occupants, trespassers or “squatters” as the plaintiff characterises the defendants. I agree that the Oireachtas could have restricted the notification entitlement to lawful occupants if it had wished. I can see why the plaintiff considers that such a policy would be sensible. However, if that had been the legislators’ intention they could have inserted the word “lawful” in the provision. They did not do so. As Murray J made clear in the Supreme Court’s judgment in Heather Hill v An Bord Pleanála [2022] IESC 13, it is not the Court’s function to depart from the plain words of legislation purely in aid of what appears a desirable policy goal, based on a “perception of what the Oireachtas ought, as a matter of policy, to have sensibly wished to achieve” (para. 150).

38. The phrase “owner or occupier” occurs throughout the Act and should be given the same meaning throughout (in the absence of a statutory intention to the contrary). One point (which was not canvassed in submissions) is that to interpret occupier as “lawful occupier” in s15, could actually reducing the local authority’s statutory powers and the obligations placed on unlawful occupiers if the same interpretation was applied throughout the Act as it should be. The local authority can require occupiers to comply with a notice served pursuant to s11 and occupiers are also subject to statutory duties under, for example, s9. If the term “occupier” is restricted to lawful occupiers then it would free unlawful occupiers from any such statutory responsibilities, which would seem an odd result.

39. The plaintiff argued that offering trespassers a right to object to a CPO when they had no legitimate interest in the Property would be absurd. I agree that courts can reject a literal interpretation which would result in an absurdity at odds with the evident statutory intention. However, it is not obvious to me that the plaintiff’s interpretation could be accepted on that basis. While there may be policy reasons to commend the plaintiff’s interpretation, including the desirability of discouraging trespass and breaking and entering (although, in the absence of concrete evidence, I make no specific finding as to what happened here), there are also countervailing considerations, such as the possibility that parties in actual occupation – whether legitimately or not – should have a right to be heard in the context of the CPO, particularly if the property is their dwelling, triggering constitutional and ECHR rights. I cannot say that the interpretation arising from the plain words of the Act would give rise to an obvious absurdity.

40. Nor am I persuaded by the argument based on the exclusion of short-term tenants. Without that exclusion, the notification requirements would have encompassed persons temporarily occupying properties on a bare licence, perhaps on a night-to-night basis in the case of hotels or hostels. It made sense for the Oireachtas to limit the notification entitlement to tenants with had a right of tenure of a month or more, but that does not necessarily confirm a statutory intention to exclude long term unlawful occupiers – if that had been the intention, the insertion of the word “unlawful” would have been the obvious expedient. Accordingly, I must conclude that the plaintiff should have notified the third defendant but failed to comply with s6(1) because the notice was not addressed to her personally – a notice addressed to “the occupants” was not sufficient.

41. For completeness I should note that, while the defendants maintained that the notice had to be affixed to the actual door of the Property or inside its fence rather than on the outside of its gate or fence, apparently on the basis that that meant that the notice was outside the Property, no authority was provided for that proposition. Leaving aside the need to address the notice to the individual occupants by name where they could be identified on the basis of reasonable inquiry, I consider that affixing the notice to the gate or fence was sufficient and that it did not matter whether this was inside or outside the railing provided it was sufficiently prominent. Accordingly, the notification would have sufficed but for the failure to address it to the third defendant and any other defendants who could have been identified with reasonable inquiry.

Issue 2 – Was the plaintiff entitled to invoke s6(2)?

42. The plaintiff also sought to rely on s6(2), which provides that where the occupier’s name “cannot be ascertained by reasonable inquiry”, a notice may be addressed to “the occupier” without individually naming them. The plaintiff did not know the identity of the occupiers, but I once again agree with the defendants that there is no basis to invoke s6(2) in the absence of any meaningful evidence of any attempts to ascertain their identity. The plaintiff did not adopt the simple expedient of visiting the Property to ask those present to identify the occupants. It would be different if its representatives had visited the Property and the occupants had refused to identify themselves or had given false information, in which case s6(2) could have been invoked. That was not the case – there was no such attempt until the plaintiff’s representative visited the property after the CPO at which point the sixth defendants readily volunteered his first name (and he does not appear to have been asked for his full name or for details of the other occupants). Nor did the plaintiff invoke its powers to demand information pursuant to s29. There is no evidence of reasonable efforts to ascertain the occupiers’ identity so the plaintiff cannot invoke s6(2). Although it concerned a different issue, the sufficiency of service of duly endorsed Court orders for the purposes of subsequent contempt proceedings, it appears to me that the Supreme Court’s decision in Pepper Finance Corporation (Ireland) v. Persons Unknown [2023] IESC 21 is relevant in this context. Accordingly, s6(2) does not avail the plaintiff and the evidence confirms it failed to notify the sixth defendant of the commencement of the CPO in accordance with s15. Issue 3 – Does the failure to comply with notice requirements invalidate the process?

43. I do not accept the defendants’ submission that the non-compliance with s15 was necessarily fatal. The following points are crucial: a. the third defendant was in fact on notice, even if the notice was not addressed to her personally as required by the Act.

b. She was not prejudiced - she obviously appreciated the implications of the CPO and exercised her entitlement to object. c. As appears from s16 (as amended) only persons upon whom notices of the CPO (should) have been served may object. In my view, by exercising her right to object, without taking any point as to service or even reserving her rights in that regard, the third defendant accepted that she was duly served and to have waived any entitlement to subsequently take that point. A party cannot have it both ways – participating in a statutory process until its conclusion and, if it goes against them, then claiming that it was improperly constituted in the first place.

The defendants cannot approbate and reprobate. By failing to take the point at the outset, or even at the time of the vesting order, and also by lodging objections and participating in the CPO, the defendants are estopped from subsequently challenging the validity of that process on any basis which they could have but did not raise at the appropriate time. d. The defendants are also estopped from raising the point by virtue of their delay and their failure to take the point earlier in the process. If the issue as to service had been raised at the time, then the plaintiff could have served a further notice in compliance with the s15 requirements, which would have put the CPO back on track, albeit with a short delay.

However, there was no need to adopt that course in circumstances in which the defendants had acknowledged that they had been served by responding to the notice by lodging submissions to the plaintiff and to An Bord Pleanála. e. If the defendants had wished to object to the validity of the notice then it was incumbent on them to raise the objection with the plaintiff (and, if necessary An Bord Pleanála) at the outset and, if necessary, to apply for amendment pursuant to s18(5) or to seek leave for judicial review if necessary. Instead, they participated in the process and took no action even when it resulted in a vesting order.

They are not entitled to agitate the point at this remove and to advance a belated collateral challenge to the vesting order by way of defence to the plaintiff’s attempt to enforce its entitlements thereunder. f. I also consider that if the defendants had pursued this point by way of an application for judicial review, the appropriate route in the circumstances, they would not have obtained an order quashing the vesting order because the exercise of the Court’s discretion in their favour would have been inappropriate in circumstances in which: (a) they were in fact on notice and suffered no prejudice; (b) they had been guilty of delay and had participated in the impugned CPO without raising the issue; (c) such an outcome would be nugatory since, at most, it would result in the recommencement of the CPO with, inevitably, the same conclusion (in the light of the compelling evidence as to the derelict and dilapidated condition of the Property and the absence of any credible evidence that anything short of a CPO would suffice to address its derelict and dilapidated condition); (d) delaying the CPO would be contrary to the public interest and the interests of other parties, including individuals on the social housing list and local residents whose neighbourhood was affected by the Property’s derelict and dilapidated condition.

Was there any other invalidity in the CPO process?

44. I have concluded that the fact that most of the defendants were in occupation meant that the plaintiff was required to notify them of the proposed CPO. In the light of that finding it is not necessary for me to evaluate the defendants’ claim to possessory title, save to note that, in the light of the express terms of the Act, such possessory title could not prevent the plaintiff from commencing a CPO in appropriate circumstances provided it followed the correct procedure. Nor would such possessory title defeat the plaintiff’s title in the event of the Property being acquired by CPO. Nor, in fairness did the defendants advance such contentions.

45. Although the defendants sought to take issue with the vesting order on the basis that the Property was not actually derelict or dilapidated, it failed to establish a factual or legal basis for such contentions. The plaintiff’s evidence as to the Property’s dilapidated and derelict condition was compelling. The defendants’ evidence reflected their personal beliefs and perspectives, but their attempts to refute the Council’s evidence were objectively unconvincing. The plaintiff’s evidence (which was not effectively challenged by the defendants in this respect) satisfies me on the balance of probabilities that it was indeed both derelict or dilapidated. I would refer to the plaintiff’s inspection report, the An Bord Pleanála report and the evidence of Mr Buckle in particular. The evidence which emerged after the hearing was even more stark.

46. In any event the dereliction issue was determined by (and in accordance with) the statutory CPO process. It is not open to the defendants to relitigate or to argue that the process was void due to the failure to conduct an oral hearing. The third defendant had the opportunity to participate in the CPO and availed of that right. They cannot resurrect the substantive issues in these proceedings. Nor was An Bord Pleanála obliged to conduct an oral hearing – the Act does not impose such a requirement. Nor can the defendants mount a collateral attack on the outcome of the statutory process in these proceedings.

47. Accordingly, the defendants are bound by the outcome of the CPO, the vesting order, pursuant to s18(2), and I must give effect to that order. If the defendants had wished to challenge the vesting order and had grounds to do so, they should have sought leave to apply for judicial review at the appropriate time. I doubt it would have succeeded.

Issue 4 - If the CPO process was valid is the Plaintiff entitled to an order requiring the defendants to vacate? Would such an order be proportionate?

48. In the light of my conclusion that the vesting order is unimpeachable, the plaintiff has established that it is the Property’s legal and beneficial owner and thus entitled to possession. It is therefore entitled to seek an order requiring the defendants to vacate the Property. However, it must still satisfy the Court that such discretionary reliefs sought are appropriate. Both defendants contend that such reliefs would be disproportionate and, because the Property has been their dwelling since 2023, would breach their rights under Article 8 ECHR and Article

40.5 of Bunreacht na hÉireann.

49. Article 8 ECHR provides as follows:

“Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

50. The plaintiff also drew attention to the Protocol to the Convention as amended by Protocol No. 11 as adopted in Paris in March 1952 which provides that:

“Article I

Protection of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right if a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”

51. Article 40.5 of the Constitution provides that: “The dwelling of every citizen is an inviolable and shall not be forcibly entered save in accordance with law.”

52. Relying on those provisions, the defendants maintain that they enjoy constitutional and ECHR protection as the Property has been their dwelling since 2023 and the orders sought would violate their right to their home or disproportionately interfere with such rights. They submitted that: a. even if the plaintiff had good title, evicting the defendants would seriously interfere with their Article 8 rights - as an organ of the Irish State, the plaintiff must perform its functions in a manner compatible with such ECHR obligations. b. They reject the plaintiff’s submission that the defendants cannot invoke Article

8 in the absence of a legal right to occupy the Property. As Fennelly J observed in The People (Director of Public Prosecutions) v. Lynch [2009] IECCA 31, [2010] 1 IR 543 (“Lynch”) the identification of a dwelling is a question of fact, a view “reinforced by the Irish language version of Article 40.5” referring to “ionad cónaithe”, i.e., place of residence. While, stating that they did have a legal right to the Premises, they noted that the ability to invoke Article 8 was not contingent on establishing such a right; European case law such as Chiragov and Others v.

Armenia, no. 13216/05, ECHR 2011, McCann v. The United Kingdom [2008] 47 EHRR 40 and Winterstein v. France [2013] ECHR 984 (“Winterstein”) confirmed that Article 8 can be engaged even without an occupancy right under domestic law. c. The defendants accepted that the plaintiff’s obligation to maintain housing lists and provide social housing and to preserve health, order and the rights of others could in principle constitute interference with a dwelling (by removing the defendants from their home) which was necessary in a democratic society, and that even without the need to provide social housing the need to protect the rights of others could be a sufficient interest to ground an interference with a dwelling, at least if the Occupants enjoyed no right to occupy it under domestic law.

However, they submitted that such an interest was not enough to ensure that an interference is necessary in a democratic society. Interference would only be considered “necessary in a democratic society” for a legitimate aim if it answered a “pressing social need” and if it was proportionate to the legitimate aim pursued. d. The defendants accepted that there was a housing crisis in Dublin, and that the evidence of the plaintiff's determination to use the Property for social housing confirmed that this interference pursued a legitimate aim answering a pressing social need but submitted that; (a) that left open the question as to whether removing the defendants from their homes was proportionate; (b) both Article 8 and Article 40.5 required an independent proportionality assessment, citing McDonagh and Winterstein; (c) the plaintiff’s attempt to remove the defendants was not proportionate and the proportionality of such a decision had not been evaluated by an independent tribunal as it must be; (d) in considering the proportionality of such a measure, the following considerations deserved particular consideration: i. if the home was lawfully established, that factor would weigh against the legitimacy of requiring the individual to move.

Conversely, if occupancy was unlawful, the individual’s position would be less strong.

ii. If no alternative accommodation was available, then the interference would be more serious than where such accommodation is available. iii. While the central issue was whether the plaintiff had good title and as a result whether the Occupants are now unlawful trespassers, there was no evidence that the establishment of the home was unlawful. iv. There is a housing crisis in Dublin. There was nowhere else for the defendants to go, and they would likely wind up back on the streets, a position that the sixth named defendant (a member of the Roma community) was in before beginning his occupation. v. There are numerous derelict sites around Dublin, the vast majority with no one living in them. The plaintiff had evidenced no haste to pursue CPOs on other such sites around Dublin. In order for an interference to be proportionate it must be no more than is necessary to achieve the legitimate aim. However, seeking to evict occupants and turn a derelict home into social housing is more invasive than merely acquiring a vacant derelict property. Thus, the interference was more than necessary to achieve the plaintiff's legitimate aim.

53. The plaintiff submitted that: (a) Article 8 does not apply because it does not confer a right to illegally occupy premises and then to claim impunity from eviction for its illegal occupation; (b) it would be impossible for the plaintiff to fulfil its statutory obligation to maintain housing lists and to provide accommodation according to confirmed priority if vacant properties could be occupied at will, protecting unlawful occupiers in priority to those with greater and more immediate needs and entitlements; (c) the Protocol provided in Article I that the Article 8 obligation was “subject to the conditions provided for by law” and that the provisions should not impair in any way the State’s right “to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”, reinforcing the principle set out in Article 8 itself (and in Article 40.5) that the right to a home was not absolute; (d) the principles do not apply in any event where there was no legal right to the purported home. The plaintiff reiterated its Article 8 submissions, emphasising that there had been forceable entry and the plaintiff had fully accommodated the full hearing of the defendants’ case by the Court with the Court being the appropriate forum to determine whether the plaintiff was entitled to retain possession of the property "in accordance with law".

54. I disagree with the plaintiff’s submission that trespassers are not entitled to invoke Article 8 or Article 40.5 to protect the inviolability of their dwelling. Lynch is to the opposite effect as is the Supreme Court’s decision in Clare County Council v McDonagh [2022] IR 122 (“McDonagh”) which encapsulates the principles with regard to Article 8 ECHR, Article 40.5 of the Constitution, the circumstances in which a proportionality assessment is required before eviction from a dwelling and how such an assessment should be undertaken. It confirmed that a judicially conducted proportionality analysis was necessary where mandatory interlocutory relief was sought requiring even illegally occupied dwellings to be vacated because such dwellings attracted, at some level of principle, Article 40.5 protection – Hogan J noted (citing Meath County Council v.

Murray [2017] IESC 25, [2018] 1 I.R. 189) that although the force of that constitutional protection is diluted where the occupier of the dwelling is in illegal occupation, the substance of that constitutional guarantee of inviolability would be compromised if the making of such an order was not subject to an appropriate proportionality analysis. It also confirmed that the same analysis applied to Article 8 protections - the concept of home was not limited to lawfully occupied premises. It should be noted that the Court emphasised the fact that the merits had been determined, which is not the case here.

For example, Hogan J observed that, since the loss of one's home represents extreme interference with the right to the protection of one's dwelling, the Court needed to consider whether the making of an order for the vacation of property was actually necessary at that point of the proceedings. He also commented on the inappropriateness of eviction at an interlocutory stage, concluding that “mandatory interlocutory orders of this kind” would be premature because, the effects on the marginalised and vulnerable defendants would be catastrophic and it was not clear that any immediate threat to the amenities of others, public safety or the environment generally or other similar pressing considerations was presented by the particular illegal occupation of the plaintiff's lands.

It seems to me that two points follow from the logic of McDonagh and the authorities cited therein. Firstly, a proportionality analysis may also be appropriate before the making of a final (as opposed to an interlocutory) order. Secondly, however, the fact that the merits have now been finally determined and the occupation has been determined to be illegal is a significant feature in any such proportionality analysis (which was obviously missing in McDonagh).

55. In the light of my conclusion that the vesting order is unimpeachable, the plaintiff has established that it is the Property’s legal and beneficial owner and thus entitled to possession and that is a final rather than an interlocutory determination. However, it must still satisfy the Court that the reliefs sought are appropriate. Both defendants contend that such reliefs would be disproportionate and, because the Property has been their dwelling since 2023, would breach their rights under Article 8 ECHR and Article 40.5 of Bunreacht na hÉireann. I will accordingly undertake a proportionality analysis to determine whether an order requiring the defendants to vacate a place in which they have been living would be proportionate and necessary.

56. The factors to be considered in each case depend on the circumstances, but McDonagh provides guidance by analogy. For example, the Supreme Court noted the relevance of the fact that the order would require members of the Traveller community to vacate lands, observing that special consideration had to be given to the vulnerable status of members of that minority group and to the local authority’s statutory obligations to members of that group. I have had reflected upon the defendants’ evidence of their individual positions and vulnerabilities, including the sixth defendant’s membership of the Roma community and the extent to which that might render him more vulnerable than would otherwise be the case.

57. Considering and adapting other factors specifically referenced in McDonagh, to the extent that they are applicable, I would note the following: a. it has now been established that the vesting order is valid, giving the plaintiff good title. Although the plaintiff’s title only dates from the vesting order’s coming into operation, the defendants have been trespassers since they occupied the Property without any lawful basis and at a time that the plaintiff was in the course of pursuing the statutory procedures available to it. The absence of any lawful basis for the defendants’ occupation is a significant factor in the proportionality analysis when final orders are sought. Furthermore, their unlawful actions have prevented and obstructed attempts to remediate the derelict condition of the Property and to make it available to those awaiting social housing and continue to do so. b. The defendants have sought to justify their actions by reference to their own serious individual needs and their criticism of the plaintiff for failing to deal more effectively with the housing issue or with derelict properties generally. They may have believed that their actions were justified, however, there was no basis on which their actions could be objectively justified as legitimate or reasonable or in the public interest. To the contrary, permitting the defendants to remain in occupation would be contrary to the public interest because it would incentivise unlawful activity and fulfil the plaintiff’s bona fide attempts to perform its statutory duty to bring properties out of dereliction and to make more property available for social housing.

c. Without going into the detail of either defendant’s personal circumstances, I accept that they were vulnerable and at least one of them had particular needs. They were in dire straits when they took up residence in the Property and their actions were driven by their desperation as well as by their genuine, if misguided, belief in their entitlement to take such steps. d. I have had regard to the two defendants’ individual needs along with the plaintiff's obligation to maintain a social housing list which takes account of the needs of all applicants on a fair and objective basis.

The defendants’ failure to join and maintain their application for admission to the plaintiff’s social housing list is a highly relevant consideration. It is true that due to the numbers awaiting housing on the list, it would have been a very considerable period before they could hope to be allocated permanent housing, though some emergency housing would apparently have been available even if only by way of hostel accommodation. However, the limitations of the social housing available via the Council cannot allow the defendant to adopt self-help remedies which would effectively allow them to "jump the queue" and commandeer social housing to the detriment of those who had been waiting longer or who had greater need. e. Accordingly, the defendants cannot rely on the plaintiff’s duty to provide social housing in circumstances in which; (a) they have, for reasons which do not withstand scrutiny failed to ensure that they are and remain registered on the plaintiff’s housing lists; (b) their occupation of the Property is preventing its being made available to others who have a greater entitlement to such social housing either because of their being on this list for longer or because of greater individual needs; (c) the plaintiff could not possibly offer social housing to those who need it most if third parties could commandeer its properties at will, refusing to vacate; such actions prevent the allocation of limited public resources to those who are most entitled to them.

I acknowledge the effect on the defendants of an order requiring them to vacate, but failing to make such an order will have a corresponding impact on innocent parties who would otherwise be entitled to reside in the Property. The rights of those lawfully entitled to reside at such a property in accordance with the plaintiff’s normal social housing policies must take precedence over the interests of unlawful occupants. f. I have considered whether the plaintiff had other opportunities to address its housing needs and to comply with its statutory obligations, for example by tackling other derelict sites, but was failing to exploit such opportunities.

If that was the case, material omissions might factor in the proportionality assessment. However, the general, anecdotal and newspaper evidence relied upon by the defendants fell far short of the evidence required to establish such a proposition. I was satisfied on the basis of the plaintiff’s evidence of its commitment to its declared goals. Any difficulties or delays experienced in respect of other derelict sites (a notoriously complex and slow procedure, reflecting the legal issues to be navigated) are regrettable but they do not afford a legal basis for impugning the legitimacy of its efforts and goals in respect of the Property.

I am satisfied that I should not refuse the relief on the basis that there may be other unoccupied derelict sites around Dublin. The CPO process takes time, as this case shows, and even if there were opportunities to take over other properties that would not address the fact that the defendants are currently unlawfully occupying this one, preventing its being made available to legitimate social housing tenants. Nor does the defendants’ anecdotal evidence satisfy me that there are sufficient derelict sites available in Dublin to obviate the immediate need to use this Property for social housing. g.

Article 8 confirms that the defendants’ home should be respected and not interfered with by the plaintiff except where such interference is in accordance with the law and is necessary in a democratic society in the interests of, inter alia, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The orders in this case sought have been sought in accordance with the law and have been shown to be necessary.

The defendants are not being deprived of their dwelling except “in the public interest and subject to the conditions provided for by law” to cite the protocol which also confirms that Article 8 does not impair the State’s right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest – the statutory provision for CPO is clearly encompassed by that stipulation. h. Likewise, the Article 40.5 protection is not inviolable and permits interference “in accordance with law.” Save for the technical point as to the notice, which does not in my view invalidate the vesting order, there is no basis for contending that the plaintiff’s approach has been other than in accordance with law. i.

Both goals identified by the plaintiff in these proceedings and supported by the evidence represent a “pressing social need” which is proportionate to those legitimate aims, particularly in the light of the housing crisis in Dublin. j. The defendants acknowledged that if their occupancy was unlawful, their position would be less strong. I have concluded that that is in fact the case here.

k. The defendants contended the interference would be more serious if no alternative accommodation was available. However, I consider that the defendants’ failure to apply to join the plaintiff’s social housing list, to be treated on the same basis as everyone else seeking housing, in accordance with the plaintiff’s published policies and procedures significantly reduces the force or credibility of their concerns in that regard, particularly because allowing the defendants to remain in the Property, despite having no lawful entitlement in that regard, could impact the availability of accommodation for other, prejudicing more deserving social housing applicants with greater or more urgent needs. l. The Court must be wary of legitimising breaches of property rights and of selfhelp measures which would encourage unlawful behaviour and impact on the rights of others, such as social housing tenants who might aspire to legitimate occupation of the Property. I agree that the plaintiff’s approach to social housing would be undermined if vacant properties could be occupied at will, protecting unlawful occupiers in priority to those with greater and more immediate needs and entitlements. m. Significantly, the Act imposes statutory obligations on the plaintiff as the relevant local authority and on the owners and occupiers of derelict properties. Although the defendants have genuinely attempted to do what they can to restore the Property to a habitable and safe condition, such efforts were necessarily limited and superficial reflecting their meagre resources. The evidence at trial was sufficient to confirm that the orders sought were necessary to restore the Property and end its derelict and dilapidated condition. The even more compelling evidence which subsequently emerged significantly reinforced that

conclusion. Although the defendants have done what they could, it is clear that they are not in a position to fulfil the statutory obligations placed on occupiers pursuant to s9 and that they were unable to comply with the s11 notice served on them by the plaintiff. The defendants’ inability to comply with such statutory obligations must itself influence any proportionality analysis. Even leaving aside the urgency of making the Property available for desperately needed social housing, the orders sought are necessary to achieve the objectives of the Act and to serve the interests of the public as a whole.

58. Notwithstanding my sympathy for the defendants given their personal circumstances, having considered the proportionality of the orders sought I have no doubt that the balance favours the plaintiff. It is entitled to the reliefs sought. Having been wholly successful in the proceedings it is also presumptively entitled to its costs on a party and party basis. However, if any party wishes to contend for any alternative order as to costs or otherwise then they may file written submissions (2,000 words or less) within fourteen days, following which the other party may respond within the same period. The Court will then determine final orders on the basis of such written submissions unless it considers that a short oral hearing is required to address any points raised therein.

59. Finally, I should note that at a listing of the proceedings yesterday at which I confirmed that judgment (as between the plaintiff and the third and sixth defendants) would be delivered electronically today, there was an appearance by the fourth/fifth defendant (the same individual) who indicated that he wished to seek a stay of the proceedings and set aside my judgment against him on the basis that he had not been on notice of the July hearing. As noted at para.2 above, on 11 July 2025 I directed that judgment should be entered against him and the other defendants who failed to appear at the hearing. The order was perfected on 11 July 2025. Conscious of the limited circumstances in which a Court can revisit a final determination, I gave directions to enable him to issue an application on notice if so advised (without prejudice, obviously, to the plaintiff’s, and indeed the Court’s, position in relation thereto).

Representation

Gavin Mooney SC and David Colgan, instructed by Dublin City Council, for the plaintiff The third and sixth defendants represented themselves as litigants in person, accompanied by James Harris as a McKenzie Friend.