Stafford v Roadstone Ltd

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barrington
Judgment Date17 January 1980
Neutral Citation1980 WJSC-HC 530
Docket NumberNo. 7448P/1979
Date17 January 1980

1980 WJSC-HC 530

THE HIGH COURT

No. 7448P/1979
Stafford v Roadstone Ltd
NANCY STAFFORD AND WILLIAM BATES
PLAINTIFFS

AND

ROADSTONE LIMITED
DEFENDANTS
IN THE MATTER OF THE LOCAL GOVERNMENT
(PLANNING AND DEVELOPMENT) ACTS 1973
TO 1976
AND IN THE MATTER OF SECTION 27 OF THE
SAID ACT OF 1976
AND IN THE MATTER OF THE USE OF LAND
AT SHELMALIER, COMMONS, COUNTY WEXFORD
BY ROADSTONE LIMITED HAVING ITS REGISTERED
OFFICE AT BELGARD CASTLE, BELGARD ROAD,
CLONDALKIN, COUNTY DUBLIN
NANCY STAFFORD OF GLENVIEW, BALLYHINE, BARNSTOWN, COUNTY WEXFORD, WILLIAM BATES OF BALLYHINE, BARNSTOWN, COUNTY WEXFORD
APPLICANTS

AND

ROADSTONE LIMITED
RESPONDENTS
1

Judgment delivered by Mr. Justice Barrington on Thursday the 17th day of January 1980.

Appearances:

Nial Fennelly S.C.

Sean Ryan B.L.

Instructed by

Messrs M. J. O'Connor & Co., Solicitors for the

Plaintiffs/Applicants

and

E.M. Walsh S.C. and Richard Johnson S.C. and Peter Sutherland

B.L.

Instructed by Messrs

Solicitors for the Defendants/Respondents

2

The first-named plaintiff in this case is Mrs. Nancy Stafford of Glenview, Ballyhine, Barntown, County Wexford. She is a married woman and resides, with her husband and two young children aged approximately 6½ years and 1 year respectively, in a mobile home. In 1972 Mrs. Stafford was given temporary permission to erect this mobile home on the field near her parent's house. This temporary permission, which was for a period of 4 years, has now expired. Mrs. Stafford has also applied for permanent permission to erect a modern bungalow on the field. This application has been refused in circumstances which will be discussed later.

3

Mrs. Stafford's parents live across the road from her. They are both aged over 70 and she looks after them by visitin them and helping them around the house.

4

The second-named plaintiff, William Bates, lives with his wife and family in a modern bungalow in the field adjoining the Staffords.

5

In February 1979 the defendants took over, from Wexford County Council, the operation of a quarry at Carrickfoyle and the present cases arise out of the manner in which the defendants use and operate, or are alleged to use and operate, the quarry.

Procedure
6

The matter comes before me, simultaneously, under two different procedures.

7

The first procedure was originated by plenary summons dated the 15th November 1979. In these proceedings the plaintiffs have brought an interlocutory injunction seeking to abate a nuisance alleged to have been created and maintained by the defendants by blasting and emission of noise, dust and vibration from a quarry at Carrickfoyle Shelmalier, County Wexford.

8

In the second procedure, which was in fact prior in time to the first, the applicants have brought a motion pursuant to section 27 of the Planning Act 1976 seeking the following relief -

9

a "(a) Prohibiting the continuance by Roadstone Limited of use of a quarry at Shelmalier Commons, County Wexford by extracting rock or stone, by blasting, by operating machinery and by emitting noise.

10

(b) Prohibiting Roadstone Limited from erecting structures on the said land.

11

(c) Providing for the re-instatement of the said lands into their conditions prior to February 1979.

12

(d) Making such other order or orders as to the Court may seem meet.

13

(e) Providing for costs."

14

The plaintiffs, apparently, when they put down their interlocutory motion for hearing with the motion under section 27 of the Planning Act 1976, were under the impression that the defendants would agree to have the interlocutory motion treated as the trial of the action. In this they were, apparently, mistaken. Because of the gravity and complexity of the issues involved, Mr. Walsh, on behalf of the defendants, was not prepared to have the hearing of the motion treated as the trial of the action. Among the complaints being made by the plaintiff, Mr. Bates, was one of damage to property alleged to have been caused by vibration. This claim raised technical problems of the utmost difficulty and Mr. Walsh was not prepared to have this issue finally resolved until his clients had had an opportunity of subjecting these claims to a thorough scientific analysis and testing.

15

This claim of damage to property caused by vibration arose as I said, in Mr. Bates case but it had implications for Mrs. Stafford's case also. Needless to say Mr. Walsh was perfectly entitled - and perfectly right - in taking up the attitude which he did on this point.

16

In the event I have heard oral evidence on the two motions simultaneously. At times the same evidence has been relevant to the two motions. Nevertheless one of the motions is an interlocutory motion and the other is a final motion and the curious result follows that I have to adopt different criteria in assessing the same evidence for the purpose of the two different motions.

17

A further curious result ensues. I have heard oral evidence lasting over some 11 days. I have heard the witnesses examined and cross-examined. I therefore have had a better chance of assessing the strength and weaknesses of both parties case than a Judge usually has when giving a decision on an interlocutory motion heard on affidavit. Nevertheless in dealing with the interlocutory matter I am satisfied that I must apply the criteria appropriate to an interlocutory motion and that I am not called upon finally to resolve the remarkable conflict of testimony which has taken place between witnesses called by the plaintiffs and witnesses called by the defendants.

Background Considerations
18

Nevertheless there are certain background considerations about which there can be no conflict or which may, in some degree, go to explain the conflict which has taken place between the witnesses.

19

Carrickfoyle is situated about 4 or 5 miles from the town of Wexford. It is a place of great natural beauty. It is a rural mountainous area with splendid views to the Blackstairs mountains and to the sea. Some witnesses spoke of it in almost idyllic terms as a place to live or a place where the citizens of Wexford could go for walks or recreation at the week-ends.

20

The local residents are, however, divided as to what the future of the area should be. Some years ago An Taisce drew up a report suggesting that the area of Carrickfoyle and Forth mountain be preserved as an area of special amenity.

21

This led to the formation of the Forth Mountain Residents Association which was organised to fight anything which might hamper the economic development of the area and this inhibit the creation of new jobs.

22

Mr. James O'Dowd, who gave evidence, is the chairman of this Association. He says it was formed in 1971 to stop the implementation of the plan then being put forward by An Taisce. This Association had subsequently become dormant until the controversy which gave rise to the present case also caused the formation of a rival residents association designed to preserve the amenities of the area.

23

Mr. O'Dowd favours the economic development of the area and had himself, at one stage, plans to establish a Readymix plant near the quarry.

24

Mr. William Stafford is a building contractor and a close neighbour of the plaintiffs. He and his family have no complaints about the quarry. Mr. William Stafford regards the present quarry as being "the first bit of industry ever there". He has two sons working for the defendants. He says he would prefer to have his sons working in his own building contracting business but he could not afford to pay them the wages which the defendants pay them. Likewise, another witness Mr. Henry Long said that he approved of the present development of the quarry because he wanted to see work for the people of the parish.

25

These matters are really planning matters with which I am not directly concerned. I mention them only because the attitude of various witnesses towards the recent development of the quarry may, in some degree, influence their attitude on whether it is or is not creating a nuisance. It is fair, however, to say that the conflict of evidence has been so striking that it could not be explained a way by this factor alone. I think it is also fair to say that no one objected to the quarry until it passed into the control of the present defendants. It is fair also to say that neither the plaintiffs nor anyone who gave evidence on their behalf asked to have the quarry closed down. They wish to have it controlled or placed "subject to conditions". Indeed, Mr. Walsh, in some degree, stressed this attitude of the plaintiffs and their witnesses at the conclusion of the case. Mr. Fennelly, however, stated that it was for him to formulate the relief which his clients were seeking and that his clients were asking for an injunction closing the quarry if they could not obtain relief in any other way.

26

There has been a quarry at Carrickfoyle for upwards of 50 years. Until February of 1979 this quarry was owned, and operated intermittently, by Wexford County Council. In or about February 1979 an arrangement was made whereby the control of the quarry passed into the hands of the defendants. The exact arrangement between the defendants and the County Council has not been placed before the Court. But, apparently, the defendants went into possession under a lease or agreement for a lease.

27

The operation of the quarry by the County Council would, of course, have been exempted development within the meaning of section 4 of the Local Government (Planning and Development) Act 1963. Mr. Walsh, however, does not put his case on that basis. He does not rely on the fact that the quarry was owned or operated by the County Council to take him out of the Planning Acts. He says that the use of the lands in question for the purpose of operating a quarry was an established use before the introduction of any...

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