Molumby v. Kearns [1999] IEHC 86 (19th January, 1999)

1. The first and second Plaintiffs are husband and wife and live at No. 28 Foster Avenue, Mount Merrion. The second and third Plaintiffs are husband and wife and live next door at No. 30 Foster Avenue. The fifth and sixth Plaintiffs are husband and wife and live at Glenville, Foster Avenue, Mount Merrion, which is on the same side as No. 26 and No. 28 and separated from No. 26 by an industrial estate known as Glenville Industrial Estate owned by the first and second Defendants with an official address at No. 26 Foster Avenue.

3. The industrial estate comprises eight bays, six of which are now occupied by the fourth and fifth Defendants. The fourth, fifth and sixth Defendants are companies of which the first and second are Directors and shareholders. The third Defendant did have an interest in these companies but sold it to the first Defendant and the second Defendant, who is his brother, in late 1996. The remaining two bays in the industrial estate are occupied (save for a small office portion in the occupation of the fourth Defendant) by a company known as Chervil Limited. The gross "footprint" of the industrial estate comprises some 30,000 square feet. It is accessed by a narrow lane which gives on to Foster Avenue and proceeds inwards for some 70 yards and widens out at the inner end. The eight bays front on to that lane and are situate on the left as one proceeds inwards. Accordingly, they extend from the lane towards the Kirranes home at Glenville, that is, to the left as one faces in from Foster Avenue. The lane itself is bounded on the right (as one enters) by a wall, on the other side of which is the home of the Molumbys at No. 28. Apart from a rear garden attaching to the Kirranes' home there is also a side garden which runs along the Foster Avenue frontage between their house (which is situate some 40 yards from the lane) and the industrial estate. This side garden lies inside the footpath adjoining Foster Avenue and between that and the first of the bays and runs parallel to that bay. At the end of the garden adjoining the lane there is a small building which contains a garage, which is used by Dr. Kirrane for his car, and a small living area which is known as the lodge. Beside the lodge there is a pedestrian gate which gives on to the lane from the garden.

4. The Kirranes have been in residence at Glenville since 1973, the Molumbys at No. 28 since 1994 and the Careys at No. 30 since the end of 1991. Up until the 7th June, 1996 the entrance to the lane servicing the industrial estate comprised two brick pillars, some 10 ft 6½ ins apart. On that date the right hand pillar (as one approaches the entrance from Foster Avenue) and some wall were removed in circumstances which will be described later.

5. The case made by the Plaintiffs is that since the knocking of the pillar, larger, louder and more polluting trucks have been accessing the lane so that there has been a dramatic increase in the number and size of vehicles together with the hours at which they come and go. This has caused a major nuisance to the Plaintiffs, particularly the Molumbys, who live immediately adjoining the laneway to the estate on the other side of a boundary wall, but also to the Careys and the Kirranes. They complain, not only about noise of truck engines and vibrations, but also fumes, diesel engines left running, radios left on, obstruction of gates, in particular the gate where Dr. Kirrane keeps his car immediately adjoining the lodge beside the estate entrance, and also the gates of the other Plaintiffs, congestion of traffic, and disruption of traffic on Foster Avenue when large vehicles are manoeuvring to access the laneway. There are subsidiary complaints relating to nuisance caused by the maintenance of a skip at the end of the lane (that is the furthest end of the laneway from Foster Avenue), the parking of vehicles in the lane over night, the servicing of vehicles from an oil tank kept towards the end of the lane immediately adjoining the Molumbys' boundary, and noise from saws cutting wood and metal in the bays of the estate, particularly in 1996 but also in other years. There were complaints about noise from a hard wheeled fork lift truck used to shift loads around the estate.

6. The pleadings refer to a claim by the Molumbys that their wall has been physically damaged but this matter was not dealt with by me because it was met by the Defendants with a lodgment which was accepted by the Molumbys and it was agreed that no reference would be made to that particular matter in the course of these proceedings.

7. The Kirranes have included a claim for a right of way from the entrance to the estate to their side pedestrian gate adjoining the gate lodge. This issue was formally addressed on the thirteenth day of the hearing, when I ruled that it could not be conveniently disposed of together with the other causes of action in this hearing because it had not been pleaded with sufficient particularity. Furthermore, it involved only the Kirranes and I considered that it would be more convenient to have that matter dealt with after pleadings in a separate hearing. Accordingly, the Kirranes' right of way claim is not being dealt with in this judgment.

8. The Plaintiffs bring their action in nuisance but they have also brought proceedings pursuant to Section 27 of the Local Government (Planning and Development) Act, 1976 on the basis that there has been such an intensification of use (following the knocking of the gate pier in June 1996) that it amounts to a material change of use which requires planning permission, but does not have it, and also upon the basis that one of the uses in Bay 1 (Bay 1 is nearest Foster Avenue as one proceeds in the lane and Bay 8 is at the innermost end) which is a distributor use for Dell Computers is itself a use which requires planning permission but does not have it. They also claim that the Defendants should be ordered to reinstate the gate pier and wall in their original position, and, further that they are in breach of a condition of planning permission requiring them to use the estate only in a way which would not be a nuisance to their neighbours.

9. At the outset of the hearing before me, I ruled that the cases should be tried together and that the evidence presented would be evidence in both cases. Accordingly, I ruled that the Affidavit evidence supporting the application under Section 27 was evidence in the nuisance action as well as in the planning application.

10. The matter first came on before me on an interlocutory basis on the 30th July, 1997 when I made an Interlocutory Order restraining the Respondents until trial of the action from compacting waste on any part of the industrial estate (the compacting of waste was taking place in large trucks very similar to local authority rubbish compacting trucks); from using a pallet truck on any of the lands except inside the buildings; and from parking Shreddit trucks overnight. The Order also excluded all vehicles from the estate except between 9 a.m. and 5 p.m. Monday to Friday and 9 a.m. to 1.30 p.m. on Saturdays. I made a further Order in relation to the wall between the Defendants' and the Molumbys' properties, which is not relevant to this hearing and I made a further Order requiring the erection of a temporary structure at the entrance so as to restrict the access to its original width of 3.215 metres (10 ft 6½ ins).

11. The Plaintiffs subsequently complained that the Defendants had not obeyed this Order and brought a motion for contempt in July 1998. On that occasion it was clarified that the Order which precluded access "by any vehicles" to the industrial estate other than between the authorised hours precluded all vehicles and not merely trucks or commercial vehicles as was thought to be the case by the Defendants. From that time forward all vehicles have been kept out of the estate between 5 p.m. and 9 a.m. Mondays to Fridays and 1.30 p.m. Saturday and 9 a.m. the following Monday.

14. Before summarising the evidence of the main participants which throws up considerable factual controversy between the parties I propose first to synopsise the uncontroverted evidence of the planning expert from Dun Laoghaire Rathdown County Council; next to synopsise the evidence of the opposing acoustic experts where opinions did not significantly diverge, and thirdly to summarise the evidence of two relatively independent witnesses, one called by each side, which deals with the pattern of activity on the estate in the later 80s and early 90s. In this way an objective setting can be established for the evidence of the main protagonists.

15. Colm Magill was called by the Plaintiff. He is a Planning Officer with Dun Laoghaire Rathdown County Council. He said the current Development Plan was introduced in July 1998 and that if the site were a "green field site" today, the present industrial operation would be refused because (a) it would be contrary to zoning the object of which is to protect and improve residential amenity, (b) it was overlooking adjoining residences on all three sides, (c) it would impact on traffic volume and intensity and (d) it would involve reversing in or out of the industrial estate on to a busy national route which is the main artery taking traffic from Dun Laoghaire Port to the west. In such a planning application he would normally require sufficient space to enable all accessing vehicles to turn on site. He said there was no number of articulated vehicles for which he would grant planning permission to access this industrial estate.

16. He said it was absolutely unacceptable in planning terms that vehicles would reverse out on to Foster Avenue. There are geometrical calculations and designs for different vehicles turning and it was simply a question of whether it was physically possible for accessing vehicles to turn once they got inside the estate.

17. Dealing with the specific user for Dell computers (involving some element of distribution in addition to the warehouse use) he said that it was a difficult question but that he thought the use would probably require planning permission on the basis that it could not be described either as wholesale warehouse or repository (each of which was exempted development under the 1944 regulations). It was more properly described as a distribution use which he thought probably required planning permission because it was not listed as an exempted development. The existing industrial use was a non-conforming use and the development plan policy in regard to these was to help or tolerate them provided this did not involve serious injury to the residential amenities. The planning history was confused but he thought it was almost certain that there was some form of planning permission for both the industrial use under the previous planning code and also for the houses adjoining. They were mutually inimical uses both probably established by planning permission.

20. In December, 1996 he got a complaint from Ronan Molumby and installed noise monitoring equipment which could be activated by the Molumbys. He analysed two portions of the reading which, when extrapolated produced a level of 54 decibels over an hour. The guidelines indicate that the enforcing authority should consider bringing proceedings in respect of noises which exceeded the background level by more than 10 decibels. In the present instance the 54 decibels exceeded the background reading established in September 1993 by 12 decibels. He said that Ronan Molumby would be entitled to have the reading taken from anywhere in his back garden and he acknowledged that the background sound level was considerably higher in the front of the house adjoining the heavily trafficked Foster Avenue. There may have been a change in the background noise levels between 1993 and 1997 but he thought this would not be significant. He noted that Mr Tom Milligan, for the Defendants, took readings in the land adjoining but could only produce calculated measurements for the sound in the Molumbys' back garden as distinct from his own measurements which were actual readings. He thought the Molumbys' complaints about noise were justified and said that it was "quite difficult" to increase a background noise level by 10 decibels. The noise was significant and was on the margin for a prosecution.

21. Tom Milligan is an acoustic engineer and gave evidence for the Defendants. He tried to build up a picture for a nine hour period which he thought was preferable to picking a single hour which might be a "noisy one". In the present case he thought it was not appropriate to add a "penalty" of an extra five decibels to the actual noise in the Molumbys' back garden, because the tonal element in the noise which would justify this was also present in the background noise created by traffic and vehicular movement. He did recommend an acoustic screen between the industrial estate lane and the Molumbys' back garden which would need to be a minimum of 3 metres high and higher if the upstairs bedrooms were to be protected from noise during daytime. He agreed under cross-examination that the back garden would have a lower background noise level because the house acted as an acoustic screen between it and the source of the noise out on Foster Avenue. It might reduce the background level by 8 - 10 decibels to allow for this. If in fact he made this adjustment (as distinct from the smaller adjustment in his own calculation) there was not very much difference between his estimated background noise level for the Molumbys' back garden and the actual reading taken by William Donnelly at 42 decibels.

22. Evidence was given by Tony Tynan for the Plaintiffs, who was the predecessor of the Molumbys and who lived in their house between 1987 and July 1994. Evidence was also given by Michael Cox for the Defendants who was the distribution manager for Bryan S Ryan, later Cantec which occupied unit 1 (hereinafter 'Cantec') from approximately 1986 until he left in 1991. Between these two witnesses, one on each side of the case, I derived a fair impression of the activities thereon prior to July, 1994.

24. It is also clear that a very large furniture truck called to Chervil approximately once every ten days, that a similar truck serviced Cantec four or five times per month and that it was unloaded out on Foster Avenue 50% of the times and on the lane for the remainder. There were two or three heavy goods vehicles calling to Cantec per week, with perhaps as many as 17 or 20 deliveries, mostly in Transit type vans, on a busy day to Cantec. The picture therefore was of seven or eight large articulated type vehicles per month, two or three heavy goods vehicles per week and up to twenty deliveries in smaller vehicles per day.

25. The pattern was that the hours if anything were extended as time went on. It was noteworthy that Mr Cox said that when he came to work on Saturday he approached "gingerly" because he knew he should not be there. He accepted that the laneway was unsuitable for vehicles, because there was no turning circle and it was tight to operate. He said the earliest a large articulated truck would call would be 11.00 a.m. and the latest would be 4.00 or 5.00 p.m.. Mr Cox disagreed with Dr Kirrane when the latter said that relations were good; Mr Cox was put in charge partly as a trouble-shooter between his company and the neighbours and his company eventually left in 1991 partly because they outgrew the site (their business was expanding at a rate of 20% compounded per annum) and partly because of the complaints from the neighbours.

27. Ronan Molumby is a solicitor. His Affidavit states that he and his wife came to reside at number 28 Foster Avenue in July 1994; he had been informed that the adjoining estate was a small low-use warehouse type development; he says that for the first two years there was no nuisance or annoyance but that changed in July 1996 when the entrance was materially widened. Thereafter much bigger lorries of a different type accessed the estate, there was a great intensification of use, there was much greater noise from refurbishment work; he complains of storage of trucks, an increase not only in size but number of trucks and also in speed and revving. He states that previously the vehicles were restricted merely to vans and similar type vehicles but "... that it is not uncommon now for a large number of articulated lorries, with eighteen wheels, to gain access to the site and such traffic often takes as long as 40 minutes to gain access to the site and this can occur several times during the day." He refers to unloading taking several hours, complains about a fuel tank used for refuelling trucks and about the excessive noise and refers to a report of a noise expert. He complains in particular about Shreddit lorries coming early and to the fact that the operators of the estate had no regard to the surrounding residential amenities. He says the owners in fact threatened to extend their activities if there were further complaints and in fact did so with movements of lorries on Saturday and Sunday.

28. Mr Molumby was cross-examined at the hearing. He denied that his Affidavits were exaggerated, pointed to child-minding at his house by his wife in the early years which activity was not affected by any intrusive noise and complained about the noise and nuisance of vehicles after 1996. He said he stayed away in the evenings because it caused tension between himself and his wife and said that trucks would often come into the estate at 10.00 p.m., 11.00 p.m. or 1.00 a.m.. Since March 1998, by contrast, all has been quiet in the evening and he can come home, see his children and go running afterwards. In his earlier Affidavit he had exhibited photographs of ivy leaves growing on the wall of the access lane covered with a black film which he said was carbon from exhaust fumes. He accepted however, that if an expert mycologist, on behalf of the defendant, says that it was fungus, he could not contradict that. He maintained there was carbon residue on the window-sill of his house.

29. He referred to a meeting between John Hefferon and himself in the autumn of 1996 when they tried to settle their differences. John Hefferon offered to buy a portion of his garden and in exasperation he said he might as well buy the whole house. He denied that there was an agreement whereby the trucks would be parked at the end of the lane, a waste skip would be collected in mid-week rather than Saturdays, oil would be delivered mid-week rather than Saturdays and the truck drivers would be told to build up the air pressure in their brakes slowly rather than rev them up. There was an incident, supported by documentation, in September, 1996 when he appears initially to have undertaken to act as Solicitor for the first three Defendants in their dispute with the fifth and sixth named Defendants and in that context he advised those Defendants to authorise him to take up title deeds; subsequently he thought better of it and told them that he could not act. This episode is common case and has significance only to show that there was a significant degree of co-operation between these parties at least as late as September, 1996.

30. He and his wife had kept diaries between October 1996 up to the end of 1997 recording the activities on the adjoining estate and these were produced in Court. He said that no articulated lorry got through the entrance gates up to 1996 and that the first one he saw was a "yellow giraffe" lorry after the gate came down (which was the 7th June, 1996). He agreed that most of his complaints in the diary were to do with the Shreddit lorries, which he objected to both because of the fumes and the visual height. He also objected to a skip kept in the estate (unless closed), and fumes from the fuel tank. To the suggestion in cross-examination that the volume of business on the estate was static since 1994 he answered "if so, the number of vehicles acquired will not reflect that". The first articulated vehicle through the re-established entrance gate was in the week before he gave evidence. He thought that it was absurd to say that one or two articulated vehicles came in per week. Between the time the gate pillar was knocked (7th June, 1996) and the date of the interlocutory order (31st July 1997) he said there was an increase in large vans, articulated vehicles and traffic. He accepted that he had given instructions to Mr Tom Phillips, a planning expert, as to how the latter was to describe the effect of the Court's interlocutory order to An Bord Pleanála in the context of a planning appeal by the defendant for permission to widen the entrance gate; the point here being made was that this submission to An Bord Pleanála misreported that the Court had made definitive findings in favour of the Plaintiffs when such was not the case.

31. He was under the impression that the number of smaller vehicles had increased since the interlocutory order in July 1997 but the number of larger vehicles had decreased. There was an improvement in that the noisy waste compactor had been removed, a quieter fork-lift truck had been introduced and at night since March 1998 the place was quiet and this was a tremendous relief.

32. On a number of specific matters I found this witness inaccurate. Contrary to what he stated I accept from other evidence, to which I will refer later, that articulated vehicles did access the estate prior to the 7th June, 1996 and after the 31st July, 1997 (when the widened gate was re-instated). Mr Molumby's challenge to the effect that the number of vehicles acquired by the Defendants would not reflect their suggestion that the volume of business on the estate remained static since 1994 was not borne out when dealt with subsequently by the Defendants; I think his input into the submission made by Mr Phillips to An Bord Pleanála was quite extraordinary for a practising Solicitor (although I am satisfied it did not amount to contempt of Court as suggested by the Defendants) and I consider his Affidavit to have exaggerated the picture he was painting, in particular, in the sentence referring to articulated lorries cited above.

35. In her Affidavit Enda Molumby gave a similar account to that of her husband but emphasised that she had two small children in the first two years after they moved into the house in July 1994, but they were not disturbed by activity on the adjoining estate in those years. She became aware of increased levels of activity in the summer of 1996 and specifically referred to saws and the cutting of wood and steel which began early in the morning. They had a high pitched, intrusive noise and when she approached John Hefferon she was reassured. Despite this the noise continued, the use of the estate increased in intensity and traffic increased both in size, scale and extent of lorries. She said that "I have often timed the length which these huge articulated lorries require to gain access and it can take upwards of 40 minutes". All this created a major impact on her dwelling.

36. She says it is often necessary for other traffic in the laneway to be removed to allow a large lorry enter, and that the diesel engines are often left running during unloading. Parking can occur as late as 9.30 at night or as early as 6.30 in the morning. Lorry parking can occur immediately under her children's bedroom window which overlooks the lane and their back garden is virtually unused because it runs along parallel to the lane servicing the industrial units. She made particular complaint about the Shreddit trucks, the industrial skip and her difficulty in getting out on to the road when a large vehicle was attempting to access the industrial estate thereby blocking her view. She says that she has been intimidated by the Defendants when she objected and refers to a huge level of stress and says that she will have no option but to sell her house if the activities continue.

37. In oral evidence she said that during the summers of 1994, 1995 and 1996 she had up to three children in addition to her own whom she minded in the afternoon. She had no problem in doing this or in running an outdoor playschool for four or five weeks each summer. After the pillar was knocked in June 1996 the big trucks came but she had not noticed them before. This brought fumes, noise and vibrations. A third child was born to her in February 1997. Since the contempt order (July 1998) there was a huge difference; they were able to sleep until 9.00 a.m., her husband could come home early from work and it was peaceful after 5.30 p.m.. She thought that the number of Inter-Link Express trucks had increased to almost daily, (in this she was subsequently proved correct) and explained that her reference to manufacturing in her Affidavit was to the wood and metal cutting subsequently acknowledged by Tom Hefferon. She said she did not complain to the Defendants about the Shreddit trucks leaving that to others, but she was concerned particularly about the noise of the compactor and the Shreddit trucks.

38. She and her husband moved to number 30 in mid-December, 1991. It was a very quiet place prior to 1996. Before then a couple of long trucks used to call particularly to the furniture company (Chervil). She said that after 1996 they could be as late as 10.00 p.m. and as early as 4.00 or 5.00 a.m. in the morning. She complained to the gardai who told her to take pictures and make videos. She refers to one specific incident when a "McGimpsey" truck visited the site on the 20th October 1998. She said there were six or seven people there - or perhaps five or six. Ronan Molumby had said there were eight people there on that occasion. Robin Knox (a witness for the Defendants) had put his camera in her face aggressively on that occasion. In her Affidavit she had said that the whole character of the estate had changed in 1996, and referred in particular to late night and early morning movement of lorries, blocking of traffic on Foster Avenue, the noisy skip, the oil tank and she also said that she would have to sell her house if the activity continued.

39. In his Affidavit Dr Kirrane says he purchased number 24 Foster Avenue in or about August, 1973. There were complaints in the 1980s and the 1990s but they were dealt with in a courteous and co-operative manner. There has been an intensification of noise since 1992 and especially in the summer of 1996 when it intensified far beyond anything previously experienced. Since the demolition of the entrance there was a much greater volume of traffic, much larger trucks using the entrance, and taking long periods to reverse into the site and obstructing traffic. He complained that his garage (located close to the estate entrance) was generally blocked by trucks or cars belonging to the Defendants, and he complained of a sneering, uncooperative attitude when he made complaints. He referred to insolent disrespect and disdain and he and his wife being intimidated. He says the hours of operation had increased dramatically on the site since the early 1990s as had the noise levels. He referred to the saw, dump trucks and compacting of garbage and the "Shreddit" trucks leaving before 7.00 a.m. on many mornings. He also referred to a title issue relating to a right of way which is not being dealt with in this judgment.

40. In oral evidence he said that he had good relations with the earlier occupants of the estate but complained about obstruction of his gate and one incident in 1992 around 11.00 p.m. when he heard a jack-hammer noise in the unit on the far side of a party wall which his house shared with Bay 1 of the estate. He called in to complain but was told by Tom Hefferon that he was unable to stop it because a concrete floor was being poured. Subsequently Tom Hefferon in evidence apologised to Dr Kirrane for reacting in the wrong way on this occasion. He referred to an incident on the 10th December 1996 when the driver of a Hiace van with the logo NSS fixated him menacingly and behaved in a way that frightened him and gave him a chilling experience. He called the gardai who arrived within a quarter of an hour and the van was driven away as was a Shreddit truck parked in the UCD gates opposite. In general he made several complaints averaging one a month.

42. At the end of his garden adjoining the entrance lane to the estate there was a small building described as a granny flat which had been used over the years, first for a gardener, then for students and his own children and most recently for Robin Knox for about one and a half years during the period 1996 and 1997. At present it was empty.

43. The opening hours changed dramatically when NSS became the new owners of the estate in June or July 1996. It then became a seven day operation and he saw big trucks which he had not seen prior to that. Dr James Kirrane on cross-examination said that the Plaintiffs could help by writing letters to their vehicle operators similar to those which had been written by Bryan S Ryan several years ago and also by undertaking not to block his entrance. He wished to be able to drive forward in and out without reversing on to the main road in the location opposite his garage. The "no parking" signs on this area were there for some 20 years or more and in fact the dye for painting those signs was given to him when he bought the house. If the Local Authority were objecting to signs on the road he would be prepared to consider a notice on his own garage door but he would prefer it on the apron in front of his garage.

44. A traffic count was conducted by Miss Oriana Shea on the five working days commencing Monday 19th October, 1998, a fellow observer filling in for the Wednesday. She presented a table of her findings setting out the time, the type of vehicle, the company, the time it went in and the time it came out. This establishes an average of 160 movements (including in and out) for each of the four days; there were 40 references to trucks, 9 to large trucks, 2 to skip lorries and 2 to articulated vehicles in the four days. The Inter-Link Express appeared every day except Thursday, and there were a number of Shreddit trucks in and out on a regular basis. She was asked (without prior notice of the question) where she would place the noise on a scale of "quiet, moderately noisy, very noisy and extremely noisy" and said between moderately and very noisy, being moderately noisy when trucks were not actually coming and going and very noisy when they were. Insofar as the evidence of Orianna Shea goes it would appear that on average for each of the four days of Ms Shea's survey there were 10 truck movements (5 in and 5 out) 9 large truck movements, and two each for a skip lorry and an artic; that is apparently 5 trucks, 5 large trucks, one skip and one artic per day all in the context of a total average of 160 movements each day.

45. She referred to a particular incident when an artic arrived and said five gentlemen came out of the industrial estate and directed it for 6 or 7 minutes. That was on Tuesday 20th at 13.39. Amongst these were Robin Knox (with a clip-board) Paul Kearns (an employee of Chervil), the lorry's helper and two others. This incident was contradicted by the Defendants for whom Paul Kearns (son of the first defendant) gave evidence. He said Mr Knox, (who was not involved in directing the truck) was present in addition to himself, the driver's assistant, and Mrs Carey who was photographing and no-one else. Mr Robin Knox also gave evidence on this incident saying he was there taking photographs and he referred to the fact that Ronan Molumby said he believed there were eight people and Mrs Carey said there were six or seven. Oriana Shea had said there were five people and a driver. Mr Knox said that in fact there was the driver, the helper on the road and Paul Kearns. In addition Mrs Carey was on the footpath, and he himself was there and no-one else. It was totally unlikely, he said, that there would have been others whom he did not see present because he went out specifically to observe and photograph the incident. He timed it with a stopwatch and it lasted three minutes and 10 seconds until the traffic commenced in both directions. The truck involved (the McGimpsey truck) was 52 feet long overall.

47. Sergeant Gallagher from Blackrock Garda Station gave evidence that he is the traffic sergeant with responsibility for traffic flow on Foster Avenue. He is not aware of any traffic flow problems at this location and has been in Blackrock since 1989. If there were significant delays on Foster Avenue it would have come to his attention. All complaints are recorded in the computer system and whilst he has not checked the computer register he is satisfied that there were no complaints because they would come to his attention even if he were off duty at the time.

48. I visited the site on the afternoon of Wednesday 11th November in the company of legal and other representatives of both sides. It had been arranged that an articulated vehicle would visit and a number of other smaller trucks. The articulated vehicle was reversed in in less than a minute by an admittedly good driver, and I experienced for myself the impact this maneouvre had on traffic on Foster Avenue. I also experienced the noise of its running engine in the Molumby's garden immediately over the wall next door. I visited the houses of each of the Plaintiffs and saw over the industrial estate.

50. I heard evidence from Kevin Daly of Chervil who is the managing director of that company which occupies bays 7 and 8. The company commenced business in 1980 and he has been there since 1984. They have four full time employees and one company vehicle - a white van - which is quite large. The peak period of trading for his company was from 1988 to 1991 but they have continued since 1992 at a level approximately 30% lower than their peak. Between 1989 and 1991 his hours were 8.00 a.m. to 5.30 p.m. and he himself worked occasionally on Saturdays. The same hours applied between 1994 and June 1996 but he tended to work longer hours in the evening in that period, up to 8.00 p.m. or 9.30 p.m.. He worked an average of 6 hours over the weekend on Saturdays and Sundays. The same hours applied after the 7th June, 1996 (when the pier was knocked) and the 31st July, 1997 (when the temporary structure replaced it).

51. He did his own analysis of vehicles which came and went to his company between 1995 and 1997. Since 1992 there was an average of one artic every 10½ days. Both before and after the gates were widened in June 1996 the artics came to the door of the warehouse. This continued until 31st July, 1997 when the narrow gate was re-erected but since then there has been a change, not because the artics could not physically fit but, it became clear, because the drivers objected to being videoed. He had a handful of complaints over the years from Dr and Mrs Kirrane relating to obstruction of their entrance. The present arrangement on the estate is that they share a skip and it is moved when it is full, probably once a week. He was aware of other artics coming to the estate prior to June, 1996 and he would describe the Defendants operation as a low key one which is not noisy. Any vehicle can gain access and the vast majority of the artics which visit his premises are of the very large variety. He accepted that one and possibly a second of two artics which were shown on a video were probably visiting his premises.

52. John Hefferon, (brother of the third defendant) gave evidence that he has now sold his interest in the defendant companies but between late October, 1989 and the end of 1996 he was involved and had the most contact with the neighbours. He was friendly with Ronan Molumby, and dealt with occasional difficulties. There was a complaint about an electrical saw running; it was cutting timber chipboard shelves. He dealt with that and also when it re-occurred throughout 1996. He came to the conclusion that Mrs Molumby's ear had become particularly attuned to this noise. He thought the complaints were exaggerated and they referred to noise running for hours when actually the saw might be running for 15 minutes. He had an interest in classic cars which he shared with Ronan Molumby and they were friendly. Ronan Molumby agreed to act as his Solicitor in his dispute with the Kirranes but subsequently decided not to do that.

53. He met Ronan Molumby on the 9th October, 1996 to deal with a variety of difficulties concerning the skip, the oil tank and the Shreddit trucks, and he followed up on this. He never made a promise but had an intention to solve these problems. He agreed that he might have said something like "it will be a quiet document exchange; you will love it" . After he left in December 1996 he had an "off the record" meeting with Ronan Molumby. Shelving was going on in the units since 1989 throughout 1991 and all the way through to 1996. He started the business in 1989, there was a good take-up and he wanted to make the bulk of it document storage. He said that in the early days Canon were famous for arguments with the neighbours and causing bottle-necks at the top of the lane. They also parked a number of skips near the buildings which was a fire hazard. He had good relations with the Molumbys throughout. He did his best to deal with complaints but his efforts were not necessarily always good enough. He might have said there would be no more parking of Shreddit lorries once they moved to Camden Street. He might have said it would be a quiet document storage facility; this was merely an expression of intent rather than a promise. He thought the erection of a wall between the estate and the Molumbys' house was reasonable if it could be done at a reasonable cost.

55. Robin Knox gave evidence that he is qualified with a building related degree. He lived in the gate lodge for about 18 months around mid-1997. He presented a scale model of the entrance to the estate, the adjoining gate lodge and portion of the Kirranes' garage with the pavement and road frontage. The area between the kerb and the Kirranes' garage is owned by the County Council.

56. He said that when the roadworks were being done involving raising the carriageway he saw a problem for accessing trucks in that they would tilt on the resulting downslope effectively making them wider so that they would have more difficulty getting through the already narrow gate. The Defendants called a meeting with the resident local authority engineer, Paul Dolan, who agreed there was a problem and the only solution appeared to be the removal of the gate pier which occurred on the 7th June, 1996. This was substantiated in evidence by Paul Dolan. Robin Knox thought all involved namely Mr Dolan, Michael Kearns and himself understood that there was a problem of a long term nature and that the pier would have to be replaced in a different position. This was not explicitly acknowledged, but that was his impression. Applications were made for planning permission to reinstate the gate pier so as to create a wider entrance. He was not involved in the planning application but was involved in the appeal. It was refused and there is still a problem.

57. The Defendants have been running closed circuit television (CCTV) since March 1998 to record vehicle movements. On the 7th May, 1998 an artic entered with dimensions 2.5 metres wide, 3.6 metres high and length of approximately 50 feet. Another entered on the 27th July, 1998 with overall length of some 46 to 50 feet and the same height of 3.6 metres. The standard width of all these artics is 2.5 metres. He gave a list of several other vehicles the longest of which was 52 feet. He thought the level of vehicle movement recorded in Ms Shea's survey was less than the level of activity present in 1994 and 1995 because in those days he found it more difficult than subsequently to park in the lane due to traffic. He was present on the estate on average three days a week for more than half his day. Artics have been coming since he came to the estate in 1996.

58. The opening hours were 8.30 to 5.30 with staff coming at 8.00 and usually going at 6.00 p.m.. He worked outside those hours once having made a special request. He felt that trucks had been damaging the gate piers for a number of years, he admitted he had a dispute with the Kirranes about unpaid rent for their gate lodge and accepted that it was increasingly difficult for artics to gain access. He had done a survey of the first weeks in March, April, May and June of 1998 covering 13 days excluding weekends. This showed that there were 27 heavy goods vehicle entries averaging two a day: and 49 box trucks averaging between three and four a day. He claimed that Ms Shea's survey showed less movement than existed in 1990.

59. Evidence was given by Hubert Fuller BSc a Mycologist, who said that the black substance on the ivy leaves taken from the walls some five or six metres inside the entrance of the estate was a fungus in the sooty mould category and not black carbon residue. He was not in a position to say if the mould was diminishing as he did not know whether it had been well established.

60. Tom Hefferon gave evidence that he was joint owner with Michael Kearns of the freehold interest in the estate. He is a director of the fourth respondents who have a 35 year lease over all bays other than the two occupied by Chervil. They have gone into occupation in different stages between September, 1989 and June, 1991.

62. The Shreddit trucks were acquired in late 1991, 1994 and 1996 and were parked in the laneway across from the Molumbys' house. They were based in the Glenville Estate but by 1996 they were competing with NSS for space and were finally moved but not before the 14th February, 1997. When Ronan Molumby complained, they parked the Shreddit trucks at the end of the laneway 70 yards from his house. An analysis showed a number of early starts (before 7.00 a.m.) and late finishes (after 8.00 p.m.) but most of these would have not been from the Glenville Estate as the drivers took the trucks home before an early start. No shredding has occurred on site since Mr Donnelly from the Environmental Protection Agency said it was a problem in 1993.

63. He said they parked a Mitsubishi Cantor van (somewhat larger than a Hiace) overnight but it did not need to move between 6.00 p.m. and 8.00 a.m.. If a customer needed access to a box or file, he or his manager could get it and there would be no need for the customer to be on the premises. He denied that the volume of traffic increased hugely after the gate pier came down on the 7th June, 1996. There was a steady increase in business over the years since 1989 and towards the end of 1995 they had reached capacity in Foster Avenue and were looking for additional premises. The financial graph of the business as prepared by their Accountant showed a flat line over the years 1994 to 1998. There was not a huge increase in heavy goods vehicles after June 1996.

64. One cannot influence the size of vehicles delivering as the transport companies operate a "groupage" scheme, which means that a large artic may call to deliver a small load. They get an artic once a month or once every five weeks. There are three deliveries a week, each with three pallets, to the Dell computer storage which is actually occupied by a Mr Peter Harrison. He considered the Shreddit service an adjunct to his business. He accepted that there was sawing which was causing Mrs Molumby a problem and they did everything to alleviate that in 1995 and 1996. They changed their sheet-wood supplier to a supplier who pre-cut the wood for shelving at some extra cost. He believed they made an honest effort to meet all complaints including unreasonable ones such as Ronan Molumby's request on a Saturday morning that there would be no hoovering. He would make the driver of a truck stop his engine running or turn off a radio and he himself objected to such thoughtlessness. He would not be able to stop every instance. Regarding dust and fumes, he thought that the 10 people in his own offices would object if they were a problem.

65. He never had a complaint from the gardai about parking or traffic or congestion on Foster Avenue. He acknowledged that Dr Kirrane had a genuine complaint late one evening at the end of 1991 and he apologised for reacting wrongly on that occasion. The mezzanine floor shelving requires sawing of the shelving to fit the sloping roof and this has been ongoing up to 1996. Most of the material in the skip is inorganic and it is collected once a fortnight. There has been no change in the size or kind of trucks visiting since June 1996: he could accept a 10% or possibly a 15% increase in traffic. He has never seen an artic take 40 minutes to enter and he would not tolerate this, it would be too much trouble. When he moved in he did not remove the signs specifying opening hours at 8.30 a.m. to 5.30 p.m.. If a Court Order is made he would require 30 minutes grace on either side to ensure that he would not be in breach of the Order. He claimed that any Order should allow employees of the Estate to park their own cars therein on arriving for work.

66. The Shreddit business grew from the time it commenced in January, 1992. The first truck commenced that month, a second in 1994, a van in November, 1994, a third truck in November, 1996, a van in March, 1997 and a fourth truck in 1997 and a van in January, 1998. The trucks were parked in the Estate until after the 14th February, 1997. At the interlocutory motion they did claim a right to park the Shreddit trucks at the Estate to operate the compactor and the forklift trucks. If the Plaintiffs had been agreeable to an overall settlement they would have agreed to remove the trucks but would not do it outside the context of an overall settlement. The same would have applied to the removal of the skip. He said he would not be prepared to reinstate the gate to its original position, and he did not think An Bord Pleanála had all the facts. He claimed that he was told by the Local Authority not to rebuild the gate (when the correspondence was checked this did not appear to be the case.) He said that the Order that the Plaintiffs were seeking excluding all vehicles higher than a Hiace van would exclude virtually all the larger trucks (shown on the photographs) now accessing the Estate. He thought it would be reasonable that trucks would be allowed to park at night provided they did not rev their engines or unload or move at all between specified hours. He would agree to cover the skip and to erect speed limit signs and signs directing lorry drivers to switch off their engines and he would also agree not to obstruct the side entrance to Dr Kirrane's garden. The company does not have a premises in the docks. Regarding size of vehicle, it seems that the larger vehicles are linked to the non-document storage side of the business.

67. Jason Sheehy gave evidence that he is a Chartered Accountant from Simpson Xavier, Accountants. He looked at the Defendant companies' performance between 1994 and 1998 with a view to testing the claim that there had been an intensification of activity on the site. At the end of that period the document storage stood at 63% of the vacant rooms, and the absolute level of turnover in value terms was relatively stable in relation to Foster Avenue (an increase of £3,000 on £415,000 between 1996 and 1997). However he agreed that if the Shreddit trucks had been located in Foster Avenue (contrary to what he indicated in his report) it might be appropriate to include those figures, and this would give a different picture. He checked whether there was a price change which might imply greater activity notwithstanding the flat level of turnover but there was no material alteration. The overall increase in the business between 1994 (approximately £½ million) and 1998 (some £1.2 million) was accounted for by increases referable to the Camden Row and Shreddit (off-site) earnings. The increase in the Shreddit business itself was some 300% between 1994 and 1997. The employees increased 100% between June 1996 and June 1997 and if the business documentation storage was included in the document storage this share now stood at 81% of the rooms occupied.

68. The Plaintiffs assert that the Defendants are in breach of a planning condition which appears in an indenture dated the 11th May 1959 and made between Maura Ralph as owner of a rectangular plot in the estate comprising 152 feet by 40 feet on the one hand, and on the other, Dublin County Council (as planning authority). This indenture recites that permission was given to complete a partly completed store on both "the said lands" (that is the plot referred to) only because allowing it to be completed would render the land less objectionable in appearance. The permission was granted on condition that Maura Ralph and her successors "may use the said land and the store thereon for the storage and packaging alone of materials, goods or manufactured products of a nature not to be a nuisance or annoyance in the residential area of Mount Merrion " and Maura Ralph convenanted that she "... will not cause any nuisance or annoyance to neighbouring owners or occupiers or the public and will at all times store, bring to store and withdraw from store the materials, goods and products in a quiet and orderly manner and without commotion noise or disturbance unsuitable to a residential district".

69. As I read that document it relates only to the store built on the plot comprising 152 feet by 40 feet more or less recited in the document itself. I do not think this specifically refers to the entire estate. I do not think it would be fair to the Defendants to apportion part of the traffic specifically to the store built on the plot in question as no effort was made in the evidence so to do. That being the case, there is no specific evidence of breach of this condition.

70. A further point in this context is made by the Plaintiffs that a planning permission dated the 15th March 1957 for the "enclosure of one bay of prohibited structure at Foster Avenue for Dr J B Ralph" applies to this estate and is subject to the condition that the developer give a written undertaking to use the structure only for the storage of his own material and not for any other commercial or industrial purpose.

71. Again the reference to one bay seems to confine the application of the permission to only one bay and for the same reason I do not think it would be fair to the Defendants to fix them with a breach of this condition where the evidence has not established which bay was authorised to be enclosed by the 1957 permission. Mr Magill, the planning officer, agreed that the planning history was confused and difficult to construe although he did conclude that the estate probably did enjoy a planning permission under the previous planning code as do the houses occupied by the Plaintiffs.

73. I approach this question in the first instance by considering the evidence given by Messry Cox Tynan & Daly as it bears on the pattern of vehicle movements in the later 1980s and early 1990s on the one hand, and on the other the evidence given by Miss Shea and Mr Knox who made traffic surveys for portions of the year 1998.

74. Obviously the evidence given by the former three witnesses must be treated for what it was; namely, a casting back of their minds over several years to give their best impression of the numbers of vehicles involved and without the benefit of anything like a survey. Furthermore that evidence was partial in that it did not purport to deal with the entire picture but only with traffic visiting either the Bryan S Ryan/Cantec operation or Chervil, Mr Daly's company. Accordingly due allowance must be made in this regard. On the other hand whilst the surveys made by the latter two witnesses were not exhaustive, they do present a more comprehensive picture. Some allowance must be made for the fact that the closed circuit television system which provided the material for Mr Knox's survey was not always operative and did not always record vehicle movements when, for example, the camera may have been blocked by a parked vehicle nearby.

75. The pattern which emerges from the evidence of the former three witnesses is that there would have been some seven or eight articulated vehicles visiting the estate every month in the late 1980s and early 1990s. There would have been two or three heavy goods vehicles per week, or, say twelve per month and some seventeen to twenty delivery vans (on a busy day) or say four hundred per month. This would produce a weekly figure of two articulated vehicles, three heavy goods vehicles and one hundred vans. Due allowance must be made, however, for the fact that this is only a partial picture and is an impression from memory rather than the product of survey. For example, there may have been a number of private vehicles coming and going belonging to employees and the figures might be reasonably increased, in fairness to the Defendants due to the fact that they relate to part only of the overall estate.

76. On the other hand the survey carried out by Miss Shea can be treated as almost 100% accurate. She attended all day for the four days that she took the count having her meals brought to her in the room which gave a good view of the entrance to the estate. The pattern which emerges from her survey is that on a daily basis there were two vehicles (being either articulated vehicles, large vehicles or skips), five trucks and an average of 135 movements overall. This is reasonably close to the survey carried out by Mr Knox (based on the CCTV system). Miss Shea's survey covered four days in October 1998 and Mr Knox's, the first weeks of March, April, May and June 1998. The pattern which emerges from Mr Knox's survey is that there were between four and nine trucks and heavy goods vehicles visiting per day (but this figure excludes light vans and hiace type vans). Again the average overall number of movements was 141 on Mr Knox's survey which is reasonably close to the average of 135 in Miss Shea's survey to give confidence that both are reasonably accurate and reliable. Allowing for the difference in classification it seems reasonable to conclude that in 1998 two vehicles of the category large vehicle, articulated vehicle or skip truck visit daily, five smaller trucks visit daily and there is an average of about 135 and 141 movements overall. This would give a weekly (excluding Saturdays) figure of some ten of the larger commercial vehicles, twenty five of the medium van type commercial vehicles with perhaps some 700 traffic movements to and from the estate in a five day week.

77. The evidence from Messrs Cox Tynan & Daly was that there would have been one articulated truck on average every ten days servicing Chervil. There would have been between four and five of the same servicing Bryan S Ryan/Cantec. There were some two or three heavy goods vehicles serving the estate per week with some 17 - 20 deliveries to Bryan S Ryan/Cantec on a busy day. Expressed on a monthly basis this would suggest some seven or eight articulated trucks, some twelve heavy goods vehicles and perhaps 400 deliveries per month to Bryan S Ryan/Cantec. On a weekly basis this would suggest two articulated vehicles per week, three heavy goods vehicles per week and 100 vans.

78. I emphasise that these figures are figures of impression and recollection only and if anything I would think that they should be increased in order to do justice to the Defendants. Even if they are doubled, however, they are significantly less than the weekly figures which emerge from the surveys of Miss Shea and Mr Knox.

79. I formed the distinct impression throughout the trial that it was the heavy goods vehicles which were causing the vast bulk of the annoyance and disturbance to the neighbours. Indeed the case made on behalf of the Plaintiffs is that they do not mind smaller commercial type vehicles coming and going but they wish to have the larger vehicles excluded. I accept that this is a reasonable view. The implication is that the main element in the traffic pattern which must be compared in order to judge whether there has been an intensification in planning terms is the heavy commercial vehicle element. The present pattern suggests that some 10 large trucks, articulated vehicles or skips visit every working week and some 25 other vans or trucks. On the other hand in the late 1980s or early 1990s the evidence of Messrs Cox Tynan & Daly indicates that the comparable figure would have been two articulated trucks, and three heavy goods vehicles. Even if this were doubled it is clear that there has been a considerable increase in the number of larger vehicles servicing the estate.

80. This impression is supported not only by the qualitative evidence of the majority of the witnesses who gave evidence but it is also consistent with the analysis conducted by Mr Sheehan of Simpson Xavier, Accountants on the books of account of the Defendants' business for the years 1994 to 1997. I accept that the figures for the Shreddit business (which show a 300% increase over these years) are properly allocated to Glenville Industrial Estate because the trucks were based there for the bulk of the period under review. Looking at the objective or "hard" evidence, it is impossible to avoid the conclusion that there has been a significant increase in commercial activity generated by the estate and in particular a significant increase in the numbers of vehicles of the larger kind servicing the estate. It is possible that trucks have become larger over the years and therefore more obtrusive and more inclined to impinge on the awareness of neighbours and it seems likely that delivery firms sometimes prefer to use large trucks for carrying multiple loads so that even a small load destined for Glenville Industrial Estate will involve a large truck. This is the "groupage" system employed by delivery companies referred to by Tom Hefferon in his evidence. Whatever the precise explanation, the evidence indicates that there has been a significant increase in the number and impact of larger vehicles servicing the estate since the early 1990s.

82. The Plaintiffs have assigned this increase to the months shortly following the removal of the gate pier in June 1996. There has been controversy between the parties on this aspect. The evidence suggests that the Shreddit business was growing steadily from January 1992 until it was removed in February 1997. These trucks were clearly intrusive. The knocking of the gate pier might well have made the traffic patterns within the estate more noticeable to outside observers and of course the background at this time was that the general area was undergoing major traffic disruption because of the local authority roadworks on Foster Avenue. These and other factors would explain, perhaps, why the Plaintiffs had the impression that there was a sudden increase in size and number of large vehicles servicing the estate following the knocking of the gate pier in 1996. The plaintiff's experience may have been to some extent distorted. I think it more probable that the increase in the larger commercial vehicles servicing the estate occurred more steadily over the years. In my view the end result is the same; there has been an intensification of use comprising an increase in the size and numbers of the heavier type of vehicles by a factor of some five or six times overall. The very largest vehicles appeared to have increased by at least twice and perhaps three or four times; the smaller vehicles (large vans and rigid trucks) by a factor of five or perhaps six. Again these are not scientifically accurate figures but in my view the evidence referred to above is sufficiently reliable to lead to the foregoing conclusions.

83. I accept firstly that an intensification of use can itself amount to a material change. As Mr O'Donnell submitted there would be no point in the doctrine of intensification of use if it could never amount to a material change unless it was accompanied by a change of use category. Moreover, the many Irish authorities on this point support this point of view. Secondly I consider that one must have regard to the effects in planning or environmental terms of such intensification in order to assess whether there has been a material change for planning purposes. Thirdly, in the present case I would consider that the impact of an intensification of the heavier commercial vehicles is likely to be more significant in planning terms than the impact of an intensification of smaller or private vehicles.

84. It is perfectly clear from the evidence from the Plaintiffs that the impact of the heavier vehicles servicing the estate made an enormous impression on them after June 1996. The planning authority has zoned this area residential with an objective of protecting residential amenity and treats the industrial estate as a "non conforming use" within that zoning. The development plan policy in relation to the non conforming use is that such can be facilitated only insofar as this would not interfere with the residential amenities. On the other hand one has to accept that the houses of the Plaintiffs front onto a major national route carrying traffic from Dun Laoghaire to the west. The impact of this traffic, particularly in noise terms, is apparent in the front gardens of their houses; significantly less so in the rear gardens, where the noise and other impacts from the estate are therefore more obtrusive. In this context the evidence of the acoustics experts is relevant; I conclude that the noise from the estate is significant, particularly as it occurs on a regular basis.

86. That being the case, I must now move to consider whether the Defendants are entitled to the benefit of the "five year rule" which holds that an unauthorised development which has occurred more than five years prior to the initiation of proceedings is protected from an Order under Section 27 of the Local Government (Planning and Development) Act, 1976.

87. I have come to the conclusion that there has been an intensification of use by comparing the situation as described by Mr Tony Tynan who occupied the Molumby's house up to July 1994 and also by Mr Cox who left some years earlier in 1991. Did the intensification which I have held occurred, happen more than five years prior to February 1997 when these proceedings were issued? I do not think it did. First of all Mr Tynan gave his evidence in relation to the pattern of vehicle movements as it applied until he left in July of 1994, some 2½ years prior to the initiation of the proceedings. Secondly, whilst I accept that the Plaintiff's evidence of a sudden increase in traffic intensity in the months following June 1996 is based, in part, on a subjective impression rather than on exclusively objective fact, I think that the probabilities are that the business expanded in such a way that the pattern of vehicles servicing the estate intensified materially within the 5 years prior to the initiation of proceedings and probably well within that period. This view is consistent with the analysis of the company accounts prepared by Mr Sheehan and in particular with the 300% growth of the Shreddit-generated profits between 1994 and 1997. The Defendants have accordingly satisfied me that, as a matter of probability, the intensification to which I have referred occurred subsequent to February 1992, and is accordingly not protected by the 'five year rule'.

88. The point made here by the Plaintiffs is to the effect that the use of the "Dell" units (that is 2 units occupied by Mr Farrell for Dell Computers) is itself a separate planning unit with a different use to that attaching to the estate as a whole namely use as a distribution centre, that no planning permission exists for this use and that therefore this is an unauthorised use.

89. The evidence is that three times a week a load of computers is delivered to the "Dell" units, each comprising on average three pallets of computers. They are off-loaded to the front of the bay in Unit 1 and sometimes further up the estate if there is no room at unit 1. A certain amount of movement of Dell computers occurs up and down the lane of the estate. These "Dell" computers are stored in two sub-units in unit 1.

91. Blayney J. had to consider whether a commercial use of a long standing advertising hoarding was a material change of use. Prior to the change to commercial repetitive advertising, the hoarding had been used to advertise on a long term basis the business taking place within the building to which the hoarding was attached. Blayney J. approached the question thus

"Is this change a material one? In my opinion it is, since it involves a portion of the premises being used for a new and separate business. In this connection it seems to me that the facade of the premises must be looked upon as a separate planning unit. In Burdle and anor -v- Secretary of State for the Environment , [1972] 1 WLR 1207) a decision of the Court of Appeal in England, Bridge J. said in the course of his judgment that:-

92. It is clear that the two Dell sub units are physically separate from the remainder of the units and in my view they are used for a different purpose, namely as a distribution depot which in themselves attract three deliveries weekly, each of three pallets of computers and, subsequently, the removal of those computers in different forms of transport (probably smaller vehicles) to the end users. In my view the use of the Dell sub units is not authorised because there is no planning permission authorising the use of these sub units as a distribution centre.

93. The Defendants have raised in this context the defence that this breach of planning permission is statute barred because it has existed for more than five years prior to the commencement of these proceedings. The Dell use commenced in 1994 and clearly therefore the five year limitation cannot apply to that use.

94. The Plaintiffs are seeking an Order directing the Defendants to restore the gate pier at the entrance to the estate. The relevant facts are that the local authority arranged to have the gate pier knocked having first consulted with representatives of the industrial estate. Following the interlocutory application, I made an Order directing the Respondents "as soon as practicable after the making of this Order (to) erect and at all times thereafter maintain until the hearing of this action a temporary non-movable structure at the entrance to the said industrial estate so as to restrict the point of access to the said industrial estate to 3.215 metres". This was done and that temporary structure remains in place today.

95. Subsequently an application was made by the Respondents to the planning authority and on appeal to An Bord Pleanála to reinstate the gate pier so as to widen the entrance to a point where it would be approximately one foot narrower than it had been left after the local authority's contractor had knocked the pier in the first place.

96. This application was unsuccessful. In the course of making the application the Respondents' representatives made the argument that due to the incline consequent upon the raising of Foster Avenue vehicles tilted thereby increasing their effective width. This justified the widening of the entrance. This argument did not impress the inspector assigned to hear the appeal and the application was refused by An Bord Pleanala on two grounds relating to zoning and traffic. The stated reason in relation to zoning included the following sentence:-

"It is considered that the proposed development which would facilitate an intensification of the use of the entrance by large commercial vehicles would, by reason of the size, noise and nuisance generated by such vehicles, seriously injure the amenities of adjacent residential property and would, therefore, be contrary to the proper planning and development of the area".

97. The second reason relating to traffic referred in particular to the inadequacy of the site to facilitate "the on-site turning of large commercial vehicles. In the absence of such turning facilities large commercial vehicles must execute reverse turning movements in order to gain entry or exit from the site". The proposed wider entrance was unacceptable because it would facilitate an intensification of such movements which would therefore endanger public safety by reason of traffic hazard and obstruction of other road users.

"If an occupier of land carries out development on it and, having subsequently accepted that the development was unauthorised and that permission in respect of it should have been obtained, applies under Section 28 of the 1963 Act for permission to retain the unauthorised structure and is refused, then he cannot be heard to argue in proceedings instituted against him under Section 27 of the 1976 Act that permission for the development was not required. He is estopped from doing so".

102. The effect of this statement of law appears to me to be that the Respondents cannot argue that the re-instatement of the gate pier so as to widen the entrance does not require planning permission. They do not seek to argue that in this case. Furthermore, the entrance as it now is (albeit on a temporary basis) is exactly what it was prior to the knocking of the pier. So long as that remains the position, the Plaintiffs cannot complain. They say, however, that the mere toleration by the Court of the gate width on a temporary basis may encourage future steps which would lead to a wider entrance, to which they object.

103. I do not think I should make the Order sought by the Plaintiffs under this head. I do not think the Respondents are doing anything in breach of the planning law by permitting traffic to come and go through the entrance as it now stands. They do not seek to argue that they are entitled without planning permission to widen the entrance or re-instate it otherwise than as it stood originally. They have indicated no plans so to do, but, equally, if the Respondents proceeded to dismantle the present temporary arrangement with the effect of widening the entrance (otherwise than in the context of lawfully reinstating the gate pier) they would, I think, be exposed to an immediate Court Order prohibiting the use of any widened entrance.

104. A further consideration which I must bear in mind is that the knocking of the gate pier was carried out by the local authority and would appear to be, prima facie , exempted development under Section 4 of the Local Government ( Planning and Development) Act, 1963. In the exercise of my discretion, I would refuse this particular relief sought by the Applicants.

106. The Defendants submit that this particular matter has not been pleaded. The Plaintiffs say that it has indeed been pleaded and rely on paragraph 28 of the Statement of Claim. I have carefully considered paragraph 28 and it seems to me that this paragraph refers exclusively to the planning covenant dated the 13th May, 1959 to which I have already referred and not to any other covenant.

107. Mr. Herbert S.C. on behalf of the Defendants indicated that if he were to deal with the covenant claim of the Plaintiffs as it related to the title, he would have to go into the title matter in a wider context than was relevant to the proceedings as pleaded. I am satisfied, firstly, that the title covenant point as distinct from the planning covenant point has not been pleaded. I am also satisfied that the Defendants' submission is not merely a technical pleading point but has real substance to it. Accordingly, I hold that the Plaintiffs have not pleaded any point in relation to the covenant on title and I therefore decline to consider it.

108. The Defendants submit that Mrs Kirrane has no locus standi to bring the nuisance claim nor have the Careys. They accept that Dr. Kirrane has locus standi but the title shows that he and he alone has a legal interest. In the case of the Careys it is submitted that there is not sufficient evidence to show that they have an interest in their property. The Defendants accept that the Molumbys have established such an interest. This latter is because Ronan Molumby's Affidavit, sworn on the 14th February, 1997, states that their dwelling house was "purchased in our joint names in or about the month of July 1994" .

109. With regard to the Careys, the position is that Dominique Carey in her Affidavit of the same date at paragraph 8 says that "the house is the only asset that we have and I say that it is likely that we will suffer a major financial loss" . This is stated in the context of her having sworn immediately beforehand that she would have no option "but to sell my house" if the nuisance continued. Her husband, Colm Carey, swore an Affidavit on the 19th March, 1997 and makes no reference to ownership or interest in the house. His wife swore a further supplemental Affidavit of the 19th March, 1997 where she alludes to "my house" . Mr. Herbert S.C. submits that this leaves the Court in a position of having to speculate as to whether Dominique Carey owns their house or whether they both own the house or whether either of them have any legal interest in it.

110. This submission relies on a distinction which appears to have developed on the law of nuisance in the United Kingdom and which is particularly articulated in Hunter and Others v. Canary Wharf Limited [1997] 2 All ER 426. A majority of the House of Lords held that in order to sue in nuisance a plaintiff had to have an interest in the land. For example, Lord Goff of Chievley (at page 436) said:-

"It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that".

115. I would also hold on the basis of the averments in the Affidavits to which I have referred above that even if it was necessary for the Careys to establish, as a matter of probability, that they had a legal interest in their home, that such an onus had been discharged. I take the observation of Lord Hoffmann, for example, to indicate that the Court will readily infer such an interest from relatively slight evidence. Accordingly, in my view, both the Careys and Maire Kirrane would have established that they had a legal interest in their respective homes if that were a necessary precondition to asserting a claim in nuisance.

117. I have been referred to a large number of cases, and I have considered these. However, I think that in the last analysis the statement of law which I have already cited from the judgment of Henchy J. in Hanrahan not only captures the essence of the tort in Irish law but indicates that it is difficult to state the law more precisely. This in turn shows, I think, as was submitted by Mr. Collins S.C. on behalf of the Plaintiffs, that ultimately the question of nuisance is one of impression.

118. In forming an impression on the evidence I have had regard, to all of the evidence, but in particular I note that the acoustic experts were in reasonably close agreement as between themselves, and concluded that the impact of the noise in the back garden of the Molumbys' house was such as would give rise to a serious consideration of prosecution. This does not mean, I think, as was submitted by Counsel for the Defendants, that it was a "marginal" case. The evidence shows that an increase over background of 6 decibels, and certainly 10 decibels, is such as to give rise to an expectation of community response. It was "marginal" only in the sense that the readings indicated that the measure of a 10 decibel excess over background had been just achieved. I do not think, however, that this is a "marginal" case in the context of the ordinary law of nuisance. On the contrary, I consider that the recurring movements of the larger vehicles which occur in the lane adjoining the Plaintiffs' residences and in particular immediately adjoining the Molumbys' residence, breaches what the Plaintiffs and in particular the Molumbys as occupiers of their land are entitled to as against the occupiers of the industrial estate, to use the phraseology employed by Henchy J. in Hanrahan.

119. I do not think the Plaintiffs and in particular the Molumbys have been afforded "the comfortable and healthy enjoyment" of their property on the basis set out by Henchy J. in Hanrahan. In reaching this conclusion, I have had regard to all the evidence and not just the evidence of the acoustic experts. I have had regard to the evidence of Mr. McGill. I think the locality in which these events have occurred is one which, on the one hand, is zoned residential in the most recent development plan so that the policy of the planning authority is to protect the amenities of residences. On the other hand, the Plaintiffs' houses front onto a busy national route taking traffic to the West from Dun Laoghaire Harbour. Furthermore, I accept that the probability is that the industrial estate is authorised by a permission granted under the previous planning code but this is also true of the houses occupied by the Plaintiffs.

121. I do not think that the fact that the residences immediately adjoin the industrial estate means that the estate must close down. I do not think this would be reasonable. Equally, I do not think that the noise, fumes and general activity and traffic movements on the estate should be such as to cause an undue impact on the amenities of the nearby residences.

125. I have had the benefit of a site visit and on that occasion an articulated truck and others accessed the lane and I had the opportunity of standing in the Molumbys' rear garden while the engine was left running. It is clear that, even with their wall restored to its original substantial condition, the noise carries to the rear garden and in the case of a number of trucks the exhaust fumes would emit from a high point behind the driver's cab. I do not think it is reasonable to require residents to have to accept such impact on the amenity of their gardens on any kind of regular basis. Of course domestic occupiers will, from time to time, permit exceptional vehicles to visit their premises. Again, occasionally, construction work will be carried out on houses in residential areas. The Glenville Industrial Estate has been in place for a great number of years and will continue there. In my view, it can only so continue in compliance with the Irish law of nuisance if the working hours are strictly regulated by the closing of the access gates, if relatively quiet and relatively small commercial vehicles service the estate, if there is no commercial overnight parking, if the distribution activity servicing Dell Computers is removed and if the use of noisy pallets or fork-lift vehicles is excluded (both on the ground and in vehicles themselves).

126. In order to give effect to these criteria, I consider that the gates should remain closed except between 8.15 a.m. and 6.15 p.m. Mondays to Fridays and 9 a.m. and 1 p.m. on Saturdays. No commercial vehicles should be permitted access to the estate when the gates are closed. I consider, however, that the Defendants should be entitled to park up to three private vehicles in the estate outside opening hours to facilitate senior employees working late.

127. There should be a large clear notice at the entrance of the estate limiting speed to 8 miles an hour and prohibiting the running of engines during loading and unloading. No fork-lift or pallet trucks should be used on the estate other than electric or battery operated units with rubber wheels. There should be no obstruction of the entrances to any one of the Plaintiffs' houses by vehicles servicing the estate or of the entrance and access to the garage usually used by Dr. Kirrane. A notice to this effect should be erected near the entrance to the laneway servicing the estate.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Molumby v. Kearns [1999] IEHC 86 (19th January, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/86.html Cite as: [1999] IEHC 86

High Court of Ireland Decisions

Molumby v. Kearns [1999] IEHC 86 (19th January, 1999)