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
BETWEEN
AND
AND
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.
Judgment of Miss Justice Laffoy delivered on the 5th day of March, 2010.
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 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 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,...
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...are done. ( X v. Bedfordshire County Council [1995] 2 A.C. 633, Lord Browne-Wilkinson, 739; see also Smyth v. Railway Procurement Agency [2010] IEHC 290, Sandhar and Stovin). This principle has already been touched upon above. XVII. Duty of Care: (2) Assumption of Responsibility. 847 1000. ......