Title: Lanigan & Ors -v- Barry and Ors.
HIGH COURT
Judgment by Mr Justice Peter Charleton on February 15th, 2008.
JUDGMENT
The plaintiffs, owners of a stud farm, were subjected to a persistent nuisance from a motor-racing track about a kilometre away, which greatly exceeded the conditions of the planning permission originally granted to the track. The defendants must now comply with those conditions.
BACKGROUND
Michael Barry and his wife, owners of a motor racing track called Tipperary Raceway, operated a motor racetrack on land which was previously a gravel quarry. Permission was originally granted for the track in 1980 to its previous owner by Tipperary County Council, subject to a number of conditions. These included operating the racetrack on Saturdays or Sundays from April to October for three-hour periods, and taking whatever steps were required by the planning authorities if the track caused problems for local residents.
The previous owner operated the track for about 10 years, and then sold it to the defendants. Over the number of years a number of structures were added to the premises, and new racing tracks developed. None of this development had planning permission.
The new owners greatly extended the operation, running it on a year-round basis, for several hours on Saturdays and Sundays, and during the week. Go-kart racing took place on the track as well as hot-rod racing. The noise included back-firing, tyre screaming, roaring, loudspeaker commentary, engine revving and screeching.
Robert and Deirdre Lanigan, the plaintiffs, own and run Tullamaine Castle Stud, where they keep 14 thoroughbred brood mares of their own and also provide "equine bed and breakfast" accommodation for other thoroughbred mares, usually from the UK, who are covered by Irish stallions and foal in the spring. At the busiest point of the year there can be up to 100 horses, including mares, foals and yearlings, on their stud farm.
They complained of the nuisance caused by the noise, which was such as to make life very difficult. It was also having a severe impact on the viability of their business, as the horses were upset to the point of injury, and breeders in England were withdrawing their custom because of the noise.
"A veterinary surgeon specialising in this area (said) that these animals are highly evolved and that they have not been selected for breeding over generations for their calm temperament, but for their speed. These horses are flighty and sensitive," Mr Justice Charleton observed. A number of incidents took place as a result of them being startled by the noise, including a yearling taking fright and running through a fence, a filly rearing up in the yard, falling and being killed instantly, and another yearling breaking her jaw.
Expert evidence was given on the noise levels. One expert established that the ambient noise level in the countryside was 37 decibels, but at the racetrack it was 92 decibels when hot-rod racing was going on. It was 62 decibels at the castle. Another measurement went up to 72 decibels. The experts also said that a five decibel weighting should be added when the noise is tonal and especially offensive. A difference of 10 decibels above the ambient noise gives rise to the likelihood of complaints.
DECISION
Mr Justice Charleton defined the tort of nuisance as "interference for a substantial length of time by the occupier of a property with the lawful use or enjoyment of a neighbouring property".
There were places where the breeding of racehorses was appropriate, and places where it would be silly, but this was a rural area where cattle and horses were bred. "Apart from the effect of piercing noise on a typical racehorse, I must have regard to the reaction of human beings," he said. It was necessary to look at the amenity of an area, and also at the planned development of its use. The planning process had primacy in setting local standards of amenity.
He said he was satisfied that the business of the plaintiffs had suffered as a result of the nuisance caused by the defendants, citing correspondence from two English breeders who had withdrawn their animals from the stud.
He considered whether there had been intensification of the use of the racetrack since the original planning permission was granted in 1981. At that time racing took place on Saturday nights between March and October, but this was brought to an end by the Catholic Church allowing the faithful fulfil their Sunday obligation by attending Mass on a Saturday evening.
The then owner "tried an unorthodox solution of offering Mass in a 40 foot trailer, but this did not help matters".
He then sold the premises. The new owners, the defendants, advertised activities throughout the year and that the track was "open seven days". The turnover increased five-fold between 1997 and 2002. The planning permission allowed racing for a maximum of three hours on a Saturday or a Sunday, a maximum of 13 hours a month. The hours' racing recorded in 2007 varied between 29 and 60 hours a month.
"An intensification in the use of premises may, of itself, constitute a development which requires planning permission," Mr Justice Charleton said.
No such permission had been sought or granted. "I have no doubt that the intensification in the use of this racetrack is of serious environmental impact and that it has unlawfully changed the character of this area outside the lawful changes that may take place under the planning code."
He rejected the defendants' claim that they were entitled to carry on the activity because of long usage. "Every occasion on which this unauthorised use has taken place has given rise to the potential for criminal prosecution on an individual basis."
He found that the plaintiffs had been subjected to a "persistent and invasive nuisance", and that the defendants were bound by the 1981 planning permission to operate the racetrack only on either a Saturday or a Sunday for a maximum of three hours, plus a maximum of two hours practice during the week.
They were injuncted to comply with these terms, and to give seven days' notice of each event so that neighbours could replan their lives around the expected noise.
The full text of this judgment is on www.courts.ie
Solicitors: William Fry, Dublin (for the plaintiffs); Kieran T Flynn, Tipperary (for the defendants)
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