Lanigan v Barry

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 27 July 2016
• Neutral Citation: [2016] IESC 46
• Court: Supreme Court
• Docket Number: [S.C. No. 200 of 2008],[Appeal No: 200/2008]
• Date: 27 July 2016

[2016] IESC 46

THE SUPREME COURT

Clarke J.

[Appeal No: 200/2008]

Denham C.J.

Clarke J.

Dunne J.

In the Matter of the Planning & Development Act, 2000 (as amended)

Between/

Robert Lanigan, Deirdre Lanigan

and

Benghazi Limited t/a Tullamaine Castle Stud

Plaintiffs/Respondents

and

Michael Barry, Brenda Barry

and

Motor Speedway Limited t/a Tipperary Raceway

Defendants/Appellants

and

South Tipperary County Council

Notice Party

Injunction – Planning – Nuisance – Appellants seeking to appeal against an injunction imposed by the High Court – Whether the scope of an injunction was excessive

Facts: The appellants, Tipperary Raceway, run a motor racing circuit. The respondents, Tullamaine Castle Stud, run a nearby equine stud farm. Tullamaine alleged that increases in the activity of Tipperary Raceway had a significant effect on its stud business. A claim brought by Tullamaine was based in part on a contention that Tipperary Raceway was acting in breach of the planning laws. In that context there was an allegation that there had been a material change of use of the motor racing circuit by reason of a significant intensification of use. In addition, Tullamaine contended that the manner in which the motor racing circuit was operated amounted to a private law nuisance. The High Court (Charleton J) gave judgment in favour of?Tullamaine ([2008] IEHC 29). The claim succeeded both in respect of the planning and nuisance aspects of the case. An injunction, which had the effect of significantly restricting the operation of the motor racing circuit, was imposed. Tipperary Raceway appealed against that judgment to the Supreme Court.

Held by Clarke J that, having considered the central overall question to be whether the scope of the injunction imposed by the High Court was excessive, the injunction could not be sustained either on the basis of the planning claim or on the basis of the claim in nuisance. While satisfied that some type of injunction was likely to have been justified on planning grounds Clarke J was satisfied that the trial judge was incorrect to disregard the planning limitation period and that the order actually granted was, therefore, incorrect. In that context Clarke J was also satisfied that, on a proper construction, there was no relevant condition attached to the planning permission in the case concerning scale and time of use. Thus s. 160(6)(b) of the Planning and Development Act 2000 did not, in Clarke J?s view, have any application to the appeal; the timing of the enactment of that measure was not, therefore, relevant in this case. Similarly Clarke J was satisfied that, while some injunction was justified on the basis of the established nuisance, it was incorrect to formulate the injunction concerned by reference to a 1980s planning application and permission rather than by reference to what was reasonably required to deal, in a just fashion, with the nuisance.

Clarke J held that, having concluded that the injunction granted could not, therefore, be sustained on either basis it seemed to him that the appeal must be allowed. However, he was not satisfied that it was either appropriate or possible for the Court to substitute its own injunction. It followed that, in Clarke J?s view, the case must be remitted back to the High Court to determine what form of injunction is appropriate in the light of the analysis of the issues conducted by the Court.

Appeal allowed.

Judgment of Mr. Justice Clarke delivered the 27th July, 2016.

1. Introduction

1.1 The underlying dispute between the parties to this litigation stems from a complaint which principally focuses on noise. The defendants/appellants (?Tipperary Raceway?) run a motor racing circuit. The plaintiffs/respondents (?Tullamaine?) run a nearby equine stud farm. Tullamaine essentially alleges that an increase in the type of activity being carried out by Tipperary Raceway, particularly over relatively recent years, has had a significant effect on its stud business.

1.2 In general terms the claim brought by Tullamaine was based in part on a contention that Tipperary Raceway was acting in breach of the planning laws. In that context there was an allegation that there had been a material change of use of the motor racing circuit by reason of a significant intensification of use. In addition, Tullamaine contended that the manner in which the motor racing circuit was operated amounted to a private law nuisance.

1.3 The High Court (Charleton J.) gave judgment in favour of Tullamaine ( Lanigan & ors v Barry & ors [2008] IEHC 29). As appears from that judgment the claim succeeded both in respect of the planning and nuisance aspects of the case. An injunction, which has the effect of significantly restricting the operation of the motor racing circuit, was imposed.

1.4 Tipperary Raceway has appealed against that judgment to this Court. While a number of specific issues require to be decided on this appeal it is, I think, fair to say that the central overall question is as to whether the scope of the injunction imposed by the High Court was, for a variety of reasons, excessive. It should be recorded in passing that the notice party did not participate in this appeal.

1.5 Before going on to consider the issues arising I think it is appropriate that I should record that the hearing of this appeal was facilitated by the first use in this Court of a new system known as eCourt. That system involves all of the documentation for the appeal being placed on tablets, one of which is made available to each of the members of the Court with additional tablets being provided to the legal teams representing the parties. The software facilitates ease of access to any particular document which may be under discussion at a specific point in the hearing. While, doubtless, as will always be the case with a new experiment, improvements can and will be made, I should record my own view that the experiment must be regarded as a success. In addition the co-operation of the legal teams and court staff with those providing the service is very much to be welcomed.

1.6 However, in order to understand the specific issues which arise on this appeal, it is necessary to say a little about the case which was ultimately made on behalf of Tipperary Raceway at the oral hearing.

2. The case made by Tipperary Raceway

2.1 There may have been some legitimate debate about the precise scope of the appeal at varying stages in the process (for example the notice of appeal underwent radical surgery) but it seems to me to be absolutely clear that any such doubt was removed by the positions adopted by both counsel at the oral hearing. It should first be noted that counsel for Tipperary Raceway fully accepted the limitations which the jurisprudence of this Court, in cases from Hay v O'Grady [1992] 1 I.R. 210 onwards, imposes on appeals which raise questions of fact. In that context counsel accepted that this Court was bound to accept the findings of fact of the trial judge in this case. There was no suggestion that any of those findings were capable of being questioned within the limited scope of appeal in relation to the facts which the jurisprudence in question permits.

2.2 The focus of the appeal was, therefore, on legal issues. It is necessary, at least to a significant extent, to consider the appeal separately in respect of the two limbs of the case made by Tullamaine.

2.3 So far as the planning aspect of the case is concerned the principal focus of the argument put forward on behalf of Tipperary Raceway was to suggest that the trial judge was incorrect to disregard the seven year limitation period which is to be found in the Planning and Development Act, 2000 (as amended) (?the 2000 Act?). Rather, it was argued, the trial judge should have conducted an exercise similar to that which occurred in Cork County Council & ors v. Slattery Pre-Cast Concrete Limited & ors [2008] IEHC 291 (? Slattery?) and thus should have determined whether any breach of planning legislation could be said either to pre-date or post-date the limitation period. In substance it was argued that the type of breach of the 2000 Act contended for on behalf of Tullamaine was a material change of use by reason of intensification of use. It was said that, contrary to the view expressed by the trial judge, such a material change of use was subject to a limitation period in the same way as any other development. On that basis it was said that any material change of use which pre-dated a time seven years prior to the commencement of these proceedings was no longer capable of enforcement under the 2000 Act. It followed, it was argued, that the failure of the trial judge to attempt to segregate any material change of use into changes which occurred more than seven years prior to the commencement of the proceedings and changes which occurred thereafter led the trial judge wrongly to conclude that all material changes of use were not only in breach of the 2000 Act but also remained capable of enforcement. Therefore, the first issue which arose was as to the proper application of the planning limitation period in a case such as this involving, as it does, an allegation of material change of use by reason of intensification of use.

2.4 However, a second, and subsidiary, planning issue arose from the reliance placed by Tullamaine on the provisions of s.160(6)(b) of the 2000 Act which excludes from the relevant limitation period any claim which is brought seeking to enforce a condition in a planning permission. The backdrop to that issue in the context of these proceedings was that there were certain references in the documents filed in the context of the original application for planning permission which made reference to the scale and timing of the operation of the motor racing circuit then contemplated. Tullamaine argued that, on a proper...