Kelly v Dublin County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Hanlon
• Judgment Date: 21 February 1986
• Neutral Citation: 1986 WJSC-HC 1057
• Court: High Court
• Date: 21 February 1986

1986 WJSC-HC 1057

THE HIGH COURT

Circuit Appeal

Dublin Circuit

County of the City of Dublin

KELLY v. DUBLIN COUNTY COUNCIL

Between:

JOHN KELLY & ITA KELLY

Plaintiffs

and

DUBLIN COUNTY COUNCIL

Defendants

Synopsis:

NUISANCE

Defence

Statutory authority - Test applicable - Onus of proof - Local authority - Road-works - Activities ancillary to discharge of main function of highway authority - Vehicle park and storage site for defendant's equipment - Defendant local authority owning vacant cottage with substantial grounds on suburban road - Defendant's premises adjoining plaintiff's residence - Defendant authority using its premises as vehicle park and storage site in connection with road-works in neighbourhood - Defendant creating nuisance affecting plaintiff - Onus of proof being on defendant to establish that discharge of main function and ancillary activities authorised by statute were performed without negligence - Held that defendant authority had failed to discharge onus of proof - Judgment for plaintiff affirming order of Circuit Court - (Ct. App. - O'Hanlon J. - 21/2/86)

|Kelly v. Dublin County Council|

EVIDENCE

Onus of proof

Nuisance - Defence - Statutory authority - Test applicable - ~See~ Nuisance, defence - (Ct. App. - O'Hanlon J. - 21/2/86)

|Kelly v. Dublin County Council|

1 Judgment of Mr. Justice O'Hanlondelivered the 21st day of February 1986

2 Defendants using site adjoining residence for storage of vehicles and materials while engaged on road construction - Nuisance caused to Plaintiffs - Whether Defendants can rely on statutory authorisation as defence to claim for damages for nuisance - Whether defence applies not merely to road-works, but also to use of depot for storing vehicles and materials - If defence available, whether defeated by plea of negligence against the Defendant in exercise of its statutory powers.

3 Judgment of Mr. Justice O'Hanlondelivered the 21st day of February 1986

4 For some years past Dublin Co. Council has been engaged in extensive road-works in the vicinity of the Plaintiffs" home at Clonkeen, Road, Co. Dublin. I am satisfied that these works have been carried out by the Defendant in exercise of its statutory powers under the provisions of the Local Government Act, 1925, Part III, and amending Acts, and also that the authority conferred on the Defendant under these provisions is imperative, and therefore absolute - it is not merely a permissive or conditional authority, conditional upon it being possible to carry out these functions without causing nuisance.

5 The Defendant was at all material times the owner of a vacant cottage fronting onto Clonkeen Road with a fairly extensive area of ground around it, and this property immediately adjoins theresidence of the Plaintiffs, Mr. and Mrs. Kelly, who live at No.181 Clonkeen Road. The Defendant decided that, for the purpose of carrying out part of its road construction programme near Clonkeen Road it would make use of the land behind the cottage for the purpose of storing vehicles and materials. In order to do so it had to set about clearing a large area of waste ground behind the cottage, levelling the site and re-surfacing it - apparently with tarmacadam - to make it suitable for the proposed purpose, and it embarked on this work in or about the month of May, 1982.

6 The Plaintiffs claim that from that time onwards they have been subjected to nuisance of various kinds which has made living conditions in their own home very unpleasant. They say that initially while the site was being cleared and re-surfaced they were plagued by noise and vibration. They claim that when the site had been turned into a compound for vehicles that from about September/October 1982 onwards large numbers of heavy vehicles and machines were stored in the compound; that they made an intolerable noise every morning when starting up, with engines left idling for as long as three-quarters of an hour at a time. They complain of noise, dust, diesel fumes, bad language used by workmen, and a particularly penetrating noise at times caused by the use of a disc cutter on metal barrels, for the purpose of cutting the top off the barrels, or cutting reinforcing bars. They say that when the road-work finished in the evening, the return of vehicles and machinery to the site caused similar nuisance to that experienced in the mornings. They complain oftrespass by workers from the site over their garden, and say they have not been able to make any use of their own back garden since the work commenced, by reason of dust, noise, and, on one occasion at least, noxious smells.

7 I am satisfied that the Plaintiffs have established by their evidence that the County Council has caused an actionable nuisance under a number of headings, unless it can be shown that a defence to the claim can be shown by reliance on its statutory powers.

8 Work carried out in exercise of what has been referred to as an "absolute" statutory power (such as I have held to exist in the present case) does not give rise to a claim for damages for nuisance resulting therefrom in the absence of negligence in the manner in which the statutory powers are...