Robert Lanigan, Deirdre Lanigan And Benghazi Ltd Trading As Tullamaine Castle Stud –v- Michael Barry, Breda Barry And Motors Speedway Limited Trading As Tipperary Raceway [2008]
In this case, the plaintiffs, a stud farm, were granted an injunction against the owners of a motor track, compelling them to operate the motor track in accordance with the conditions of the planning permission for the track which had been granted in 1981 and limited the operating hours of the track. The track had undergone significant expansion from about 2000 and its operating hours had increased accordingly. No additional planning permission was applied for after 1981. The owners of the stud farm complained that their lives had been made unbearable by the noise generated by the motor track since its development and brought a case to enforce the conditions of the planning permission. The motor track tried to claim that they had established a right by virtue of long usage to longer operating hours, but this was ultimately rejected by the Court.
The following are extracts from the case:
On the 13th November 1980, the owner of the motor track before the defendants, John McHugh of Cahir,CountyTipperary, was notified byTipperary(South Riding) County Council that he had been granted planning permission for a tarmacadam raceway at Tullamaine. The permission was subject to a number of conditions that were incorporated in the permission. Those that are relevant include the following:
“(1) The proposed development shall be carried out in accordance in with the applicant’s submitted drawings and outline specification save where these are modified by the following conditions.
…
(7) In the event that the operation of the racetrack gives rise to justifiable complaints by local residents the applicant will be required to take whatever steps are deemed necessary by the Planning Authority to remedy the situation.
…
(10) No shop, stall or vending operation in association with this proposed development shall be permitted”.
In applying for planning permission, Mr. McHugh specified that he was going to race hot rod cars; that the complex would be located within the 15 acre field site so as to accommodate some 2,000 cars; that it would be intended to operate the racetrack either on a Saturday or on a Sunday evening from April through to October but if a motor organisation wished to practice on, or use, the track during weekday evenings it would be under their proprietor’s supervision and control; and, finally, that the duration of each racetrack operation would approximate to three hours at a maximum.
The Judge said:
When planning permission was sought in 1981 in respect of the raceway, the conditions of the planning permission that was granted required compliance with the application. This application sought permission to use the proposed track for a maximum of three hours racing with a potential for some supervised practise during the week. These are the relevant figures for racing hours at the defendants’ racetrack in 2007: January, thirty three hours; February, forty one hours; March, sixty hours; April, thirty eight hours; May, fifty one hours; June, thirty six hours; July, twenty nine hours; August, thirty three hours; September, fifty nine hours; October, thirty two hours; November, twenty one hours; and December, thirty two hours. To that, the evidence clearly establishes that one should add in a large number of hours per month for what are described as “practice sessions”, but which can also involve other forms of motor use. I am satisfied this at least doubles, and probably trebles, those hours. This use is all-year around and potentially on every, or any, day or time up to 22.30 hours. The raceway should never have operated during the period November through to April. The use originally contemplated and the use, to which I am satisfied the raceway was put at least through into the early 1990s, involved three hours of racing on a Saturday or a Sunday from April through to October. Multiplying three hours by 4.33, the number of weeks in a month, one reaches thirteen hours maximum of racing per month. In addition to that, one might reasonably add on seven hours of practise giving a total of twenty hours in any month. During 2007, and I am satisfied during previous years, at least since the year 2000, this total of a maximum of twenty hours of use per month, apparently allowed by the planning permission, has been very substantially exceeded by a multiple of up to ten, or perhaps more during some months.
Here, 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.
There is nothing in the Planning and Development Act, 2000, or its predecessor, which authorises a court to ignore, by virtue of the passage of time, a completely new user of a site, or an intensification of a use in respect of which some form of planning permission has been granted and which has been entirely altered by the illegal user thereof. I am satisfied that as a matter of law, the defendants have had the choice of using this racetrack in accordance with the planning permission of 1981, or of ignoring it. They have chosen the latter course. Instead of having one race on each weekend over a seven month period, with occasional supervised practice or use during the week, they have operated the raceway on a week-to-week basis during the entire year in a manner which is utterly at odds with the terms of the planning permission granted to their predecessor in 1981. Every occasion on which this unauthorised user has taken place has given rise to the potential for criminal prosecution on an individual basis.
Result
I make the following summary of the findings of fact that have been made in the course of this judgment for the purpose of determining the form of the final order:
(i) The plaintiffs have been subjected to a persistent and invasive nuisance due to noise emanating from the premises of the defendants, the nature of this being such as to require this court to restrain it through an injunction.
(ii) The plaintiffs are reasonable persons who have held off the issue of proceedings in a reasonable manner and are not, therefore, to be faulted due to delay. There is no prescriptive right in favour of the defendants.
(iii) The defendants are bound by the terms of the planning permission of 1981 to operate their motor raceway so that a car race occurs only on either a Saturday or a Sunday and for a maximum duration of three hours during the months of April to October only. In addition, the defendants may be allowed up to two hours of practice during the week of a race, but no more than that. They are now injuncted to comply with these terms.
(iv) Where the defendants wish to have a race, they are required by the terms of this injunction to put a notice to that effect on the gateway to their premises seven days before such event so that all the neighbours can take evasive action and re-plan their lives around the expected noise.
(v) On the basis of nuisance, I equally impose the restraints set out in paragraphs (iii) and (iv) by way of injunction.
(vi) I propose to make no order as to the physical condition on the premises of the defendants.
(vii) Any issue as to damages has been left over by consent of the parties pending this decision as to liability.
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