Patterson v Murphy

• Jurisdiction: Ireland
• Judge: Costello J.
• Judgment Date: 04 May 1978
• Neutral Citation: 1978 WJSC-HC 3275
• Docket Number: No. 6215 P./1977
• Court: High Court
• Date: 04 May 1978

PATTERSON v. MURPHY

BETWEEN:

FRANK PATTERSON AND EILY PATTERSON

Plaintiffs

and

MARTHA MURPHY AND TRADING SERVICES LIMITED

Defendants

IN THE MATTER OF THE LOCAL GOVERNMENT

(PLANNING AND DEVELOPMENT) ACT 1976

ON THE APPLICATION OF FRANK PATTERSON AND EILY PATTERSON

Applicants

and

MARTHA MURPHY AND TRADING SERVICES LIMITED

Respondents

1978 WJSC-HC 3275

No. 6215 P./1977

THE HIGH COURT

1 Judgment of Costello J. delivered the 4th day of May 1978.

2 The Plaintiffs herein instituted proceedings for damages and Injunction arising out of alleged acts of nuisance for which they claimed the defendants were responsible. They sought interlocutory relief and on the hearing of their motion a date was fixed for the trial of the action. As the matter was an urgent one an early date was fixed but this resulted in the fact that the rules relating to pleadings were not complied with. No point had been taken on this, however, and it is agreed that I should hear the case on the basis of the pleadings actually filed. The plaintiffs had also brought a motion under section 27 of the Local Government (Planning and Development) Act 1976. Again, by agreement I directed under Rule 6 of the Rules of the Superior Courts (No. 1) 1976 that evidence heard in the nuisance action should be treated as the evidence on the 1976 Act motion. Although different issue arise in the two proceedings it was in fact found convenient to have them heard together. It will, I think, be equally convenient if I give one judgment in both proceedings, dealing firstly with the nuisance action.

3 The Plaintiffs married in 1967. Both are, by profession, musicians, Mr. Patterson being a singer and Mrs. Patterson a pianist and harpist. They lived in Paris between 1967 and 1971. In 1971 they returned to Ireland renting a cottage in Brittas, County Dublin. They liked the area and sought somewhere in it where they could settle permanently. Late in 1972 Mr. Patterson found Shillelagh Lodge. It was a small two-storeyed house, very old and in a dilapidated and run-down condition, but it ideally suited his requirements and the Plaintiffs decided to purchase it and renovate it. It was situated in a very beautiful part of the countryside, and some distance from the main road. Access to it was by means of a narrow laneway. It was purchased in April 1973, along with 5 acres of land and a right-of-way up the laneway. The Pattersons did a lot of renovation work to the house, and built on a music room and moved into their new home in the month of September 1973.

4 The laneway ends beside the entrance to Shillelagh Lodge at an old gateway which leads into a field (Which, for ease of reference I will refer to as the "quarry field"). This field is a little over 4 acres in area. Mr. Patterson took a walk in it before buying his new home, and he noticed that some of the top soil had been scraped away leaving areas of broken rock and shale. He said (and I accept his evidence) that the total area involved was approximately 25 yards square and the rest of the field appeared to consist of rough grazing and heather. He took the precaution of inspecting the Planning Register in the County Council offices and found that no permission to use the field as a quarry had been given but that permission to erect a dwelling on the other side of the lane existed. In fact the plot of ground opposite Shillelagh Lodge had been purchased by Mr. O'Sullivan who, not long after the Pattersons purchase, built a bungalow for himself (which is now known as Aughfarrel) which he moved into after his marriage in September 1974.

5 The owner of Shillelagh Lodge, and Aughfarrel, had been Mrs. Murphy. She also owns the quarry field, the land over which the laneway runs and other land in the vicinity amounting in all to over 100 acres. Her home is lower down the lane closer to the main road. She is now a remarkable old lady of 91 who, as a child, was brought up in Shillelagh Lodge. Her husband, for many years, farmed the land and also carried on a sand and gravel business until he got into ill-health in the year 1964. Thereafter her son, Michael Murphy, has managed the family business and the farm and, in fact, all the negotiations in relation to the sale of the property and the dealings relating to the quarry field were conducted by Mrs. Murphy's son on her behalf. Not surprisingly, Mrs. Murphy's recollection of events is infirm, and the principal evidence in the case was given by her son. Some time in the month of August or September 1973 Mr. and Mrs. Patterson called on Mrs. Murphy. As they were shortly to be neighbours they wanted to introduce themselves to Mrs Murphy and also raise, with her the question of the gates on the lane. At that time there were two gates on the laneway and Mr. Patterson hoped that an arrangement to keep them open could be made. In the course of the conversation Mr. Patterson was told that a "big quarry" was to be opened in the quarry field. This was the first he learnt of this possibility. I should make it clear that I do not accept the suggestion that he had been told about this possible development by Mr. Michael Murphy at or about the time he had effected the purchase some months previously. I think however, that it is probable that Mr. Michael Murphy was not in his mother's home when the Pattersons called to see her.

6 The possibility that a quarry might be opened up in the adjoining field came closer to reality in the month of July 1974. An explosion then took place in the field and a considerable quantity of rock was displaced. Mr. Patterson went to his solicitor and to the County Council offices and, no doubt as a result of his representations, a Notice to Cease Development dated the 25th September 1974 was served on Mr. Murphy. The Notice stated that the "use of lands as a quarry" was being carried out without a grant of permission under the relevant Act and was unauthorised development. For approximately four weeks after the blast rock was removed by means of lorries but thereafter the situation reverted to the normally peaceful conditions which had existed prior to July. What those conditions were I will examine in greater detail later. But a new development and a most startling one from the Pattersons point of view occurred in the early summer of 1977. Large items of equipment and vehicles were brought up the laneway by the second-named defendants. Blasting rock on an extensive and regular basis commenced. Crushing equipment was used to reduce the size of the rocks, to produce 4 inch stones and a very considerable volume of traffic of heavy lorries commenced. In fact, quarrying operations on a considerable commercial scale had begun.

7 The plaintiffs claim that they have been subjected to a nuisance as a result of the quarrying operations carried on in the adjoining quarry field and by virtue of the traffic on the laneway and they seek damages and relief by way of injunction.

Acts of Nuisance

8 I should begin my examination of the nuisance claim by considering a submission of the second-named Defendant. It is this. In ascertaining whether the noise, vibration and dust complained of in these proceedings amounts in law to a nuisance it is submitted that the standard of comfort to be applied is that of the ordinary and reasonable man in the locality in which the plaintiffs reside (see Salmond on "Torts" 17th edition P. 56); that as the plaintiffs came to reside in what was termed a "Mining area" the standard of comfort to which they are entitled is less than would apply in an ordinary rural area; that by applying the proper standards no nuisance has been established. In connection with this submission evidence was adduced both as to the nature of the locality in which Shillelagh Lodge was situated and, also, the user of the quarry field adjoining the plaintiffs home. From the evidence I find the following facts:-

9 1. Shillelagh Lodge is in fact situated on a hillside. It is surrounded by fields which are used for coarse grazing. The quarry field itself was covered to a considerable extent by heather. To the west of the field a large state forest commences. On the lane way close to Murphys house there was a gravel pit and further away beside the main road there was a larger gravel pit formerly operated by Messrs Roadstone. At the time of the plaintiffs purchase this gravel pit had been worked out. About three quarters of a mile from Shillelagh Lodge there was a quarry known as Tracey's Quarry from which stone was extracted. The environs of Shillelagh Lodge are well illustrated in the fine panoramic photographs taken by Dr. O'Rahilly.

10 2. Later I will examine the use of the quarry field prior to October 1964. For the purposes of this part of the case I find that from 1964 to 1969 the quarry field was used very intermittently by Mr. Murphy to obtain shale. For this purpose a mechanical shovel was used to scrape the top of the soil and to put the shale into lorries.

11 3. The quarry field was more intensively worked by a Mr. Mansfield in the year 1969 (not the year 1970 as he thought). Mr. Mansfield entered into an agreement with Mr. Murphy and as a result of this he was given permission to take shale. He did this by using a Caterpillar bulldozer. He worked the field only for some weeks. During this time the bulldozer scraped to a depth of between seven to ten feet in portions of the field. When Mr. Mansfield left the field the area exploited was that as subsequently seen by the plaintiff and described by him in evidence.

12 4. After Mr. Mansfield vacated the field it was, again, only used very intermittently for the purpose of obtaining shale. It was, in fact, let from time to time by Mr. Murphy for sheep grazing. Mrs. Nocter (who moved into a house on the lane way in the year 1972) was in a good position to describe how the lane way and the quarry field was used. I accept her evidence (and that of Mr....