Lanigan and Others v Barry and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 15 February 2008
• Neutral Citation: [2008] IEHC 29
• Judgment citation (vLex): [2008] 2 JIC 1510
• Court: High Court
• Date: 15 February 2008

[2008] IEHC 29

THE HIGH COURT

[No. 4654 P/2007]

Lanigan & Benghazi Ltd (t/a Tullamaine Castle Stud) v Barry & Ors

IN THE MATTER OF THE PLANNING AND DEVELOPMENTS ACT, 2000

AS AMENDED

BETWEEN

ROBERT LANIGAN, DEIRDRE LANIGAN AND BENGHAZI LTD TRADING AS TULLAMAINE CASTLE STUD

PLAINTIFFS

AND

MICHAEL BARRY, BREDA BARRY AND MOTORS SPEEDWAY LIMITED TRADING AS TIPERARY RACEWAY

DEFENDANTS

AND

SOUTH TIPPERARY COUNTY COUNCIL

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S160

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 23

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 24

SALMOND & HEUSTON ON THE LAW OF TORTS 17ED 1977 58

SALMOND & HEUSTON ON THE LAW OF TORTS 17ED 1977 59

SALMOND & HEUSTON ON THE LAW OF TORTS 17ED 1977 56

O'KANE v CAMPBELL 1985 IR 115 1985 6 1456

GILLINGHAM BOROUGH COUNCIL v MEDWAY (CHATHAM) DOCK CO LTD 1993 QB 343

BUTLER & ORS v DUBLIN CORPORATION 1999 1 IR 565 1998 1 ILRM 533 1998 12 4117

GALWAY CO COUNCIL v LACKAGH ROAD LTD 1985 IR 120

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PARA 2.64

PRESCRIPTION ACT 1832 S1

PRESCRIPTION ACT 1832 S4

BLAND LAW OF EASEMENTS & PROFITS A PRENDRE 1997 PARA 13.12

DENNIS & ANOR v MINISTRY OF DEFENCE 6.5.2003 TLR 2003 EWHC 793

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PARA 24.99

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PARA 24.100

PLANNING & DEVELOPMENT ACT 2000 S160

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1976 S160

CLARE CO COUNCIL v FLOYD UNREP CHARLETON 19.1.2007 2007 IEHC 48

MORRIS v GARVEY 1983 IR 319

WICKLOW CO COUNCIL v FOREST FENCING LTD (T/A ABWOOD HOMES) & SMULLEN UNREP CHARLETON 13.7.2007 2007 IEHC 242

PLANNING & DEVELOPMENT LAW

Planning permission

Terms - Nuisance - Race track adjoining stud farm - Noise pollution - Intensification - Amenity of area - Diminution of business - Planning permission originally granted subject to conditions - Construction of grant of planning permission - Prescription - Whether intensification capable of constituting change of use - Whether existence of nuisance dependent on amenity of area - Whether action for nuisance capable of being barred by claim of prescription - Denis v Ministry of Defence [2003] EWHC 793 approved; O'Kane v Campbell [1985] IR 115, Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343, Butler v Dublin Corporation [1999] 1 IR 565, Galway County Council v Lackagh Rock Ltd [1985] IR 120, Readymix (Éire) Ltd v Dublin County Council (Unrep, SC, 30/7/1974), Clare County Council v Floyd [2007] IEHC 48 [2007] 2 IR 671, Morris v Garvey [1983] IR 319 and Wicklow County Council v Forest Fencing Ltd [2007] IEHC 242 (Unrep, Charleton J, 13/07/2007) considered- Planning and Development Act 2000 (No 30), s 160 - Local Government (Planning and Development) Act 1976 (No 20), s 27 - Prescription Act 1832 (2 & 3 Will 4, c 71), ss 1 and 4 - Injunction granted (2007/4654P - Charleton J - 15/2/2008) [2008] IEHC 29

Lanigan v Barry

1 JUDGMENT of Mr. Justice Charleton delivered on the 15th day of February, 2008

2 1. The defendants operate a motor racing track in South Tipperary. It is situated within one kilometre, as the crow flies, from Tullamaine Castle Stud, a farm for breeding race horses which is owned and operated by the plaintiffs. Both businesses are situated in rolling countryside where the predominant activity is agriculture. The motor racing track was the subject of only one planning permission in 1981 and is situated on land which was previously a gravel quarrying operation. Tullamaine Castle Stud is about 15 metres higher than the raceway. The raceway has no natural acoustic barrier. The plaintiffs, together with some of their neighbours, complain that their lives have been made unbearable by the noise generated by the car racing and motor use of various kinds at the defendants' premises. As well as bringing an action in nuisance, the plaintiffs have also claimed injunctive relief under s. 160 of the Planning and Development Act 2000.

Planning Permission

3 2. On the 13th November 1980, the owner of the motor track before the defendants, John McHugh of Cahir, County Tipperary, was notified by Tipperary (South Riding) County Council that he had been granted planning permission for a tarmacadam raceway at Tullamaine. The permission was subject to a number of conditions that were incorporated in the permission. Those that are relevant include the following:-

4 2 "(1) The proposed development shall be carried out in accordance in with the applicant's submitted drawings and outline specification save where these are modified by the following conditions.

5 …

6 (7) In the event that the operation of the racetrack gives rise to justifiable complaints by local residents the applicant will be required to take whatever steps are deemed necessary by the Planning Authority to remedy the situation.

7 …

8 (10) No shop, stall or vending operation in association with this proposed development shall be permitted".

9 3. In applying for planning permission, Mr. McHugh specified that he was going to race hot rod cars; that the complex would be located within the 15 acre field site so as to accommodate some 2,000 cars; that it would be intended to operate the racetrack either on a Saturday or on a Sunday evening from April through to October but if a motor organisation wished to practice on, or use, the track during weekday evenings it would be under their proprietor's supervision and control; and, finally, that the duration of each racetrack operation would approximate to three hours at a maximum.

Unauthorised Buildings

10 4. There are a number of unauthorised building developments at the site of this raceway. Firstly, the racetrack is not where it was planned within the context of the 14 acre field on which it stands. It is now situated much more over towards the eastern boundary of the site. This has a potentially unfortunate consequence since it is almost beside the hedgerow of neighbouring property. Were the building of acoustic barriers, or berms as they are called, to be an appropriate, and lawful solution to any noise problem emanating from Tipperary Raceway, the trading name of the defendants, same would have to be built by purchasing further land in that area. An internal racetrack, which was not part of the original plans, has also been constructed. The original race way is an oval shaped circuit of about half a mile, of which bends take up at least one third, and on inspecting the photographs possibly more, of the track. Within it, there is a substantial area which I am satisfied was used previously for servicing or parking cars that were racing. In 1996, a new internal racetrack was constructed. This is longer than the original track because it curves in and out to make maximum use of the area and it is much less wide. This construction coincided with the commencement by the defendants of the Tipperary Raceway Karting Centre, as it was called. This karting operation continued for at least ten years from that time. The defendants then bought new racing karts; although racing with karts had occurred on the main track for some years previously. The defendants claim that this racing with go-karts has been discontinued due, among other factors, to natural wear to the stock of carts that they purchased over ten years ago. In 1982, a control tower was built at the back of the track. In 1997, some workshops were constructed on the premises. In 1996, a portakabin was put in place on the premises. In 1983, a large viewing stand holding approximately 1,500 spectators was constructed and, finally, in the year 2000 a small viewing stand was erected on the other side of the track. The only structure in respect of which planning permission arguably exists apart from the quarter mile long racetrack is a toilet block for "adequate numbers of male and female toilets": a condition of the 1981 planning permission.

11 5. The planning history of this site indicates that there is only one planning permission, which I have quoted above, in respect of the motor racing track operated by the defendants. In 2004, the defendants applied to the planning authority to retain all the structures on the site. This application was invalid because it related to a motor racing circuit, which under the Environmental Impact Regulations [1989 ], S.I. 349 of 1989 articles 23 and 24, is a development that requires an environmental impact assessment. In 2007, a similar application was made and rejected by the authority as invalid for the same reason. Since the commencement of this case in 2006, in December, 2008 a new application for retention permission was made in respect of the small stand on the premises. This has yet to be processed.

12 6. The development plan for this area, promulgated by Tipperary South Riding County Council, contains the following relevant paragraph:-

"It is the policy of the council to support the improvement and expansion of the equine industry. Proposals for non-agricultural related development that are considered to have a negative impact on the viability of existing stud farms or stables will not be favourably considered".

Neighbours

13 7. Relations between neighbours are a matter of give and take. Any reasonable person expects, and is expected, to put up with occasional or passing inconveniences caused by those who live near them such as a startling noise, or an annoying noise such as a loud dog or loud lawn mower. Smells and smoke may come and go as people do their garden or their pipes block. House renovation works may impose disruption on a neighbour for weeks and months. Provided these are minimised, and not dragged out much beyond the estimated time, these are...