Smyth & Smyth (plaintiffs) v Railway Procurement Agency & Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 05 March 2010
• Neutral Citation: [2010] IEHC 290
• Court: High Court
• Date: 05 March 2010

[2010] IEHC 290

THE HIGH COURT

[No. 1375P/2006]

Smyth v Railway Procurement Agency & Veolia Transport Dublin Light Rail Limited

BETWEEN

PAULA SMYTH AND VINCENT SMYTH

PLAINITFFS

AND

RAILWAY PROCUREMENT AGENCY AND VEOLIA TRANSPORT DUBLIN LIGHT RAIL LIMITED

DEFENDANTS

AND

ATTORNEY GENERAL

NOTICE PARTY

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S3(2)

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S12

TRANSPORT (RAILWAY INFRASTRUCTURE) ACT 2001 S47

RSC O.60 r2

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S4

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S3

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S5

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S6

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S7

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S8

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S3(1)

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S6

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S7

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S9(2)

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S10

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S12

RSC O.84

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S13

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S14

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S15

LOCAL GOVT (NO 2) ACT 1960 S13

LAND CLAUSES (CONSOLIDATION) ACT 1845 S14

TRANSPORT (RAILWAY INFRASTRUCTURE) ACT 2001 S4(2)

DUBLIN LIGHT RAIL ENVIRONMENTAL IMPACT STATEMENT CHAP 5 VOL 1

HANRAHAN v MERCK SHARPE & DOHME (IRL) 1988 ILRM 629

MOLUMBY & ORS v KEARNS & ORS UNREP O'SULLIVAN 19.01.1999 1999/18/5619

LANIGAN & ORS v BARRY & ORS UNREP CHARLTON 15.02.2008 2008/34/7462 2008 IEHC 29

GILLINGHAM BOROUGH COUNCIL v MEDWAY (CHATHAM) DOCK CO LTD 1992 3 AER 923

ALLEN v GULF OIL REFINING LTD 1981 AC 1001

WATSON v CROFT 2008 3 AER 1171

WHEELER v SAUNDERS 1996 CH 19

HUNTER v CANARY WHARF LTD 1997 AC 655

WATSON v CROFT PROMO SPORT LTD 2009 3 AER 249

WADE ADMINISTRATIVE LAW 9ED 2004 753

LAND COMPENSATION ACT 1973 (UK)

MANCHESTER CORP v FARNWORTH 1930 AC 171

CLERK & LINDSELL ON TORTS 19ED 2006

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PAR 24.93

NAVIGATION & TRANSPORT ACT 1936 S55

NAVIGATION & TRANSPORT ACT 1988 S47

KELLY v DUBLIN CO COUNCIL UNREP O'HANLON 21.02.1986 1986/3/1057

CLIFFORD v DRUG TREATMENT CENTRE BOARD UNREP MCCRACKEN 07.11.1997 1998/3/763

SUPERQUINN v BRAY URBAN DISTRICT COUNCIL 1998 3 IR 542

KEANE THE LAW OF LOCAL GOVERNMENT IN THE REPUBLIC OF IRELAND 1982 52

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1998

CONSTITUTION ART 40.3

CONSTITUTION ART 43

ALLEN v GULF OIL REFINING LTD 1981 1 AC 1001 829

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 710

VISCOUNT SECURITIES, IN RE 1978 112 ILTR 17

FPH PROPERTIES SA v BORD PLEANALA 1987 IR 698

DODD STATUTORY INTEPRETATION IN IRELAND 2008 304

ELECTRICITY SUPPLY ACT 1927 S53(3)

RSC O.60

CONSTITUTION ART 15.2

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

HEANEY v IRELAND 1994 3 IR 593

SWEENEY v DUGGAN 1991 2 IR 274

CONSTITUTION ART 40.3.2

DREHER v IRISH LAND CMSN 1984 ILRM 94

ELECTRICITY SUPPLY BOARD v GORMLEY 1985 IR 129

MCDONALD v BORD NA GCON 1965 IR 217

TRANSPORT (RAILWAY INFRASTRUCTURE) ACT 2001 S4

BYRNE v GREY 1988 IR 31

TRANSPORT (RAILWAY INFRASTRUCTURE) ACT 2001 S4(2)

TORT

Nuisance

Noise - Operation of public transport system - Liability of defendants for noise generated by Luas - Failure to install noise barrier - Common law approach - Whether substantial interference with enjoyment of house and garden -Whether defence of statutory authority -Whether defence made out on facts - Environmental impact statement - Report of inspector - Specific conditions in relation to abatement of noise - Whether defendants operating within parameters permitted by Order - Temporal limits on noise - Whether failure to mitigate noise - Representations before construction - Sleep disturbance - Sensitivity of plaintiffs - Expert evidence - Guidelines and standards - Methodology - Acoustic screening - Consequence of order to install screens - Whether failure to provide acoustic screens to mitigate noise a failure to act with reasonable regard for plaintiffs' interests - Whether proceedings an unlawful collateral challenge to validity of Order - Onus of proof - Constitutional rights - Strict construction of statute - Presumption of constitutionality - Whether defendants acting lawfully - Construction of order - Whether operation in accordance with law - Whether noise level within limits of environmental impact assessment - What temporal limits would been agreed if condition complied with - Whether noise would be in breach of such limits - Whether nuisance established - Hanrahan v Merck Sharpe & Dohme (Ireland) Ltd [1988] ILRM 629, East Donegal Co-Operative Ltd v Attorney General [1970] IR 317 and McDonald v Bord na gCon [1965] IR 217 followed; Molumby v Kearns (Unrep, O'Sullivan J, 19/01/1999), Lanigan v Barry [2008] IEHC 29 (Unrep, Charleton J, 15/02/2008), Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343, Watson v Croft Promo-Sport Ltd [2008] 3 All ER 1171, Watson v Croft Promo-Sport Ltd [2009] 3 All ER 249, Wheeler v JJ Saunders Ltd [1996] Ch 19, Hunter v Canary Wharf Ltd [1997] AC 655, Manchester Corporation v Farnworth [1930] AC 171, Byrne v Grey [1988] IR 31, In Re Viscount Securities [1978] 112 ILTR 17, State (FPH Properties SA) v An Bord Pleanála [1987] IR 698, ESB v Gormley [1985] IR 129 and Dreher v Irish Land Commissions [1984] ILRM 94 considered; Allen v Gulf Oil Refining Ltd [1981] AC 1001, Kelly v Dublin County Council (Unrep, O'Hanlon J, 21/02/1986), Clifford v Drug Treatment Centre Board (Unrep, McCracken J, 7/11/1997) and Superquinn v Bray UDC [1998] 3 IR 542 distinguished - Transport (Railway Infrastructure) Act 2001 (No 55) - Transport (Dublin Light Rail) Act 1996 (No 24) - Transport (Dublin Light Rail) Act 1996 (Line B âÇö St. Stephen's Green To Sandyford Industrial Estate Light Railway) Order 1999 (SI 280/1999) - Claim dismissed (2006/1375P - Laffoy J - 05/03/2010) [2010] IEHC 290

Smyth v Railway Procurement Agency

Facts: The plaintiffs were the owners of a private dwelling in a quiet residential area since 1992. They contended that the construction of the Luas Green line, full operational from June 2004, amounted to a nuisance on account of the noise impact of the tram lines. An Environmental Impact Statement (EIA) had been commissioned in accordance with the Transport (Dublin Light Rail) Act 1996. The plaintiffs alleged that the operation of the Green Line Luas at the rear of their dwelling demonstrated that they were being subjected to serious noise disturbances including sleep disturbance. The plaintiffs sought to restrain the defendants from operating the Green Line, to abate the nuisance and to erect an appropriate noise barrier. They contended that the Green Line services caused a substantial interference with their enjoyment of their house and gardens. The issue arose as to whether the defendant had a statutory defence to the claim of nuisance on the facts. The Attorney General also participated in the proceedings. The issue arose as to noise guidelines, i.e. WHO and BS codes, and their application to the proceedings.

Held by Laffoy J. It was clear that best practice had evolved since the assessment of environmental noise using an EIS for the Green line was prepared in accordance with the Act of 1996. The plaintiffs had not established a nuisance. It was difficult to see how a WHO "inside bedroom" guideline could be an appropriate standard in the context of urban public transport. The claim would be dismissed.

Reporter: E.F.

1 Judgment of Miss Justice Laffoy delivered on the 5th day of March, 2010.

1. The factual background

2 2 1.2 The plaintiffs, a married couple, are the owners of a dwelling house situated at 3, Cambridge Terrace, Dublin 6 (No. 3) and they have occupied it as their private residence since 1992. The plaintiffs' house is a two storey over basement Victorian residence. It has a long rear garden extending approximately 40 metres. At the end of the garden there is a lane which affords access to Northbrook Road. On the opposite side of the lane there is a railway embankment which, until its closure on 31 ^st December, 1958, accommodated the Harcourt Street railway line. The plaintiffs' house is located in a quiet residential area.

3 3 1.3 The first defendant was established as an independent statutory body by Ministerial Order pursuant to the Transport (Railway Infrastructure) Act 2001 (the Act of 2001) and it has assumed the role formerly fulfilled by Córas Iompair Éireann (the Board) in relation to the provision and operation of light rail services in the Dublin area. Prior to the establishment of the first defendant, the Board had obtained a light railway order, which was dated 8 ^th September, 1999, from the Minister for Public Enterprise (the Minister) pursuant to the provisions of the Transport (Dublin Light Rail) Act 1996 (the Act of 1996). The Order was entitled Transport (Dublin Light Rail) Act 1996 (Line B - St. Stephen's Green to Sandyford Industrial Estate) Light Railway Order 1999 ( S.I. No. 280 of 1999) (the Line B Order). The Line B Order authorised the construction of what has come to be known as the Luas Green Line (the Green Line) from St. Stephen's Green to Sandyford. In 2003 the first defendant commenced the construction of the Green Line. When construction was completed, in April 2004, the Green Line was commissioned on a trial basis. It commenced full operations towards the end of June 2004.

4 4 1.4 The Green Line is operated by the second defendant, formerly known as Connex Transport Ireland Limited, and subsequently known as Veolia Transport Ireland Limited, under contract with the first defendant. Both defendants were represented by one legal team. As I understand the position, it is the first defendant, which is a State funded statutory corporation,...