Nuisance claim dismissed as statutory noise limits supersede common law standards and plaintiffs failed to prove interference.

Neutral Citation Number: [2010] IEHC 290

THE HIGH COURT

2006 1375 P

BETWEEN

PAULA SMYTH AND VINCENT SMYTH

PLAINTIFFS

AND

RAILWAY PROCUREMENT AGENCY AND VEOLIA TRANSPORT DUBLIN LIGHT RAIL LIMITED

DEFENDANTS

AND

ATTORNEY GENERAL

NOTICE PARTY

Judgment of Miss Justice Laffoy delivered on the 5th day of March, 2010.

1. The factual background

1.2 The plaintiffs, a married couple, are the owners of a dwelling house situated at 3, Cambridge Terrace, Dublin 6 (No. 3) and they

have occupied it as their private residence since 1992. The plaintiffs’ house is a two storey over basement Victorian residence. It has

a long rear garden extending approximately 40 metres. At the end of the garden there is a lane which affords access to Northbrook

Road. On the opposite side of the lane there is a railway embankment which, until its closure on 31st December, 1958, accommodated

the Harcourt Street railway line. The plaintiffs’ house is located in a quiet residential area.

1.3 The first defendant was established as an independent statutory body by Ministerial Order pursuant to the Transport (Railway

Infrastructure) Act 2001 (the Act of 2001) and it has assumed the role formerly fulfilled by Córas Iompair Éireann (the Board) in

relation to the provision and operation of light rail services in the Dublin area. Prior to the establishment of the first defendant, the

Board had obtained a light railway order, which was dated 8th September, 1999, from the Minister for Public Enterprise (the Minister)

pursuant to the provisions of the Transport (Dublin Light Rail) Act 1996 (the Act of 1996). The Order was entitled Transport (Dublin

Light Rail) Act 1996 (Line B – St. Stephen’s Green to Sandyford Industrial Estate) Light Railway Order 1999 (S.I. No. 280 of 1999) (the

Line B Order). The Line B Order authorised the construction of what has come to be known as the Luas Green Line (the Green Line)

from St. Stephen’s Green to Sandyford. In 2003 the first defendant commenced the construction of the Green Line. When

construction was completed, in April 2004, the Green Line was commissioned on a trial basis. It commenced full operations towards

the end of June 2004.

1.4 The Green Line is operated by the second defendant, formerly known as Connex Transport Ireland Limited, and subsequently

known as Veolia Transport Ireland Limited, under contract with the first defendant. Both defendants were represented by one legal

team. As I understand the position, it is the first defendant, which is a State funded statutory corporation, which is the real

respondent to the plaintiffs’ claim.

1.5 The Green Line is constructed in part on the alignment of the old Harcourt Street railway line. That is the case in relation to the

section thereof at the rear of the plaintiffs’ house. During the trial period of the operation of the Green Line, the plaintiffs became

aware of the noise impact of the passage of trams on their house and garden. Their first complaint to the first defendant about noise

was logged as early as mid-May 2004. The complaint was investigated by the first defendant’s Environmental Manager. The position

adopted by the first defendant was that noise monitoring in the vicinity of the plaintiffs’ house indicated that the noise was within

accepted parameters.

1.6 In July 2004 the plaintiffs instructed Mr. Karl Searson, a consulting engineer specialising in acoustics, to conduct noise

measurements at their house. Between July 2004 and the hearing of this action, Mr. Searson conducted extensive tests at the

plaintiffs’ house.

1.7 The plaintiffs’ evidence was that they bided their time before taking action to see if they would become accustomed to the noise

from passing trams. However this did not happen. Eventually, their solicitors wrote to the first defendant on 9th November, 2005

seeking an undertaking to eliminate the noise impact of the Green Line at the plaintiffs’ house. The rejection by the first defendant,

through its solicitors, of the plaintiffs’ complaints and its refusal to give such undertaking ultimately led to these proceedings, which

were initiated by a plenary summons which issued on 27th March, 2006.

2. The case as pleaded in outline

2.1 The plaintiffs’ claim is founded in tort. They claim injunctive relief in the following terms:-

(1) restraining the defendants from operating the Green Line in such a manner as to cause a noise nuisance to the

plaintiffs’ lawful use and enjoyment of No. 3;

(2) directing the defendants to abate the noise nuisance caused by the Green Line to their lawful use and enjoyment of

No. 3; and

(3) directing the defendants to erect an appropriate noise barrier to abate the noise nuisance caused to their use and

enjoyment of No. 3 by the operation of the Green Line.

They also claim damages for nuisance, negligence and breach of duty, including breach of statutory duty.

2.2 The gravamen of the plaintiffs’ claim is that, in operating the Green Line services, the defendants have caused a substantial

interference with the enjoyment by the plaintiffs of their house and garden and have thereby committed a nuisance. In particular they

allege that, because of the defendants’ failure to install an appropriate noise barrier to mitigate noise exposure at No. 3, the plaintiffs

are exposed on a daily basis to very serious and aggravating noise nuisance, which totally disrupts their peaceable use and enjoyment

of their home. In consequence, their lawful use and enjoyment of their home has been severely undermined and compromised.

2.3 The defendants in their amended defence traverse all of the allegations made by the plaintiffs and specifically deny that they are

committing a nuisance, which denial is referred to as their “overriding plea”. Without any admission that the noise generated by the

operation of the Green Line at No. 3 would otherwise constitute an actionable nuisance at common law, they also raise (in para. 24) a

specific defence of statutory authority by way of additional or alternative defence in the following terms:-

“… the Defendants have at all material times hereto constructed and/or operated the Luas railway system in accordance

with the terms of the [Line B Order] made by the Minister … pursuant to s. 9 of the [Act of 1996] following

recommendations of an Inspector appointed to conduct a public inquiry in relation thereto and also in compliance with the

[Act of 2001]. In the premises it is specifically pleaded that the construction and/or operation of the Luas railway system

within the parameters permitted by the [Line B Order] (including the parameters in relation to noise) cannot as a matter

of law or alternatively does not as a matter of fact give rise to the nuisance complained of by the Plaintiffs in these

proceedings”.

2.4 In response to a request for particulars of the “permitted parameters” being relied on by the defendants in that plea, the

defendants stated:-

“The permitted parameters are those set out in the EIS which forms the basis of the public inquiry, the recommendations

of the Chairman of the public inquiry and ultimately the Ministerial Order. At all times the noise levels resulting from the

operation of the Luas railway system in the vicinity of the plaintiffs’ property have been within the range predicted by the

said EIS”.

The reference to “the EIS” in that reply is to an environmental impact statement (EIS), which had accompanied the application for

the Line B Order in accordance with s. 3 of the Act of 1996.

2.5 The defendants also make a special plea that the plaintiffs are not permitted to question the validity of the Order other than by

way of judicial review. That plea developed into an argument that these proceedings constitute an unlawful collateral challenge to the

Order, although that was not expressly pleaded. However, the defendants do refer to s. 12 of the Act of 1996 and s. 47 of the Act of

2001 in another context, as I will outline later.

2.6 The plaintiffs’ reply to the defendants’ plea of statutory authority raises issues of constitutional law, in that they plead as

follows:-

(1) by way of special plea, that “to the extent that the defendants are seeking … to establish or rely on an alleged

immunity at common law … so as to deny any liability to the plaintiffs for noise nuisance … such an immunity at common

law did not survive the enactment of and/or is inconsistent with the Constitution … having regard to the plaintiffs’

constitutional rights under Articles 40.3 and 43” thereof; and

(2) expressly, that “to the extent that the common law immunity being relied upon by the defendants … has survived and

is not inconsistent with the provisions of the Constitution … the defendants are not entitled to rely on the common law

immunity in these proceedings in circumstances where no compensation has been paid to the Plaintiffs and/or where no

statutory provision has been made for payment of compensation to the Plaintiffs in respect of the noise nuisance being

caused to the Plaintiffs in the enjoyment of their family dwelling and in respect of the permanent diminution in the capital

value of their property”.

2.7 In their reply the plaintiffs have sought, to the extent necessary, additional reliefs in the form of declaratory relief and damages

for breach of the plaintiffs’ constitutional rights. The declarations they seek are as follows:

(a) that the immunity pleaded in paragraph 24, being an immunity derived from the common law, is inconsistent with and

did not survive the enactment of the Constitution;

(b) that the common law immunity being relied on in paragraph 24 is in breach of the plaintiffs’ constitutional rights under

Articles 40.3 and 43 of the Constitution; and

(c) if necessary, that the immunity relied upon in paragraph 24 is, in the absence of compensation being payable to the

plaintiffs as of right in respect of the noise nuisance to which they are being subjected by the operation of the Green

Line, inconsistent with and did not survive the enactment of the Constitution.

2.8 Apart from raising a question as to the constitutionality of the defendants’ reliance on the defence of statutory authority, in their

reply the plaintiffs deny that the defendants are operating the Green Line without negligence, their assertion being that it is being

operated without reasonable regard to, and care for, the interests of the plaintiffs or in a manner so as to avoid causing a noise

nuisance to them. Further they contend that the noise nuisance being caused to the plaintiffs is not the inevitable result or

consequence of the defendants operating the Green Line according to statutory authority. The focus of both of those pleas is the

absence of suitable noise barriers which would abate the alleged noise nuisance.

2.9 In their rejoinder, the defendants join issue on those pleas. They deny negligence. Specifically, they assert that the level of noise

generated by the passing of trams at the rear of No. 3 is “the inevitable consequence” of the operation of the Green Line within the

permitted parameters and, thus, in accordance with the statutory authority conferred by the Acts of 1996 and 2001. On the

constitutional issues raised by the plaintiffs, the defendants deny that the immunity from suit on which they rely is inconsistent with

the Constitution and assert that the plaintiffs are not entitled to the additional relief sought in their reply.

2.10 To complete this very broad outline of the issues raised on the pleadings, in response to the plaintiffs’ notice of particulars, the

defendants state that they do not plead reliance upon express statutory immunity but on an immunity necessarily implied from the

provisions of the Act of 1996 and the Act of 2001 and the Ministerial Orders made thereunder. It is in this context that they refer

specifically to s. 12 of the Act of 1996 and s. 47 of the Act of 200l, the provisions which regulate the jurisdiction to challenge the

validity of a light railway order.

2.11 The plaintiffs, on the direction of the Court, by their solicitor’s letter of 3rd April, 2008, gave notice to the Attorney General

under Order 60, rule 2 of the Rules of the Superior Courts 1986 of the constitutional question which arises on the defendants’ plea of

the defence of statutory authority and the plaintiffs’ reply to it. By letter dated 10th July, 2008, the plaintiffs’ solicitors informed the

Chief State Solicitor that the constitutional question would only be required to be determined if the Court were to find that –

(a) the defendants have committed and are continuing to commit a nuisance to the plaintiffs in operating the Green Line;

and

(b) the defendants have made out a defence of statutory authority on the facts.

It was suggested that the constitutional question should be left over until after the determination of the issues underlying the

propositions at (a) and (b) above.

2.12 The Attorney General, by solicitor and counsel, participated in these proceedings. The submissions made on behalf of the

Attorney General on the constitutional issues raised by the plaintiffs will be outlined in detail later.

3. The issues as identified by the parties

3.1 This action was at hearing for 16 days. The shape and course of the action was determined by the case as pleaded and the

identification by the parties of the issues in their closing submissions.

3.2 Counsel for the plaintiffs identified three issues to be determined by the Court, namely:-

(1) whether the defendants, in the course of operating the Green Line, have committed a nuisance to the plaintiffs and, if

so, whether the nuisance is continuing;

(2) if the answer to the first issue is positive, whether the defendants can rely on the defence of statutory authority to

avoid liability for nuisance, which involves the constitutional question raised by the plaintiffs as to the existence in Irish

law of such defence and whether it can be deployed in the circumstances which prevail here; and

(3) whether, if they are entitled to invoke the defence of statutory authority, the defendants have made out the defence

on the facts of this case.

3.3 As counsel for the defendants pointed out, the issues and the order in which they should be determined suggested on behalf of

the plaintiffs would involve the Court in determining the constitutional validity of the defence of statutory authority before

determining whether the defence was made out on the facts. The defendants did not take a stance on the appropriate sequence,

save to indicate that they would not object to all of the non-constitutional issues being determined prior to the constitutional issues.

3.4 The third issue identified by the plaintiffs, on the basis of the traditional common law approach to the defence of statutory

authority as set out in the parties’ submissions, apart from necessitating the identification of the extent of the defendants’ authority

as a matter of interpretation of the Act of 1996 and 2001, involves two additional issues raised on the pleadings, namely:

(a) whether what the plaintiffs complain of as constituting a nuisance is an “inevitable consequence” of the operation of

the Green Line in accordance with the authority conferred by statute; and

(b) whether the Green Line is being operated by the defendants without negligence, that is to say, with reasonable

regard to the interests of others.

3.5 On the basis of the traditional common law approach to the defence of statutory authority, a subsidiary issue flows from the

second issue: on whom the burden of proof of negligence or no negligence lies, and, in particular, whether the traditional common law

approach, that it is for the defendants to prove that they are not operating the Green Line without regard to the interests of others,

is the approach which the Court should adopt. Counsel for the defendants cautiously adduced evidence with a view to showing that

the Green Line has been constructed and is being operated with due regard to the interests of persons living in the localities through

which it passes.

3.6 An overarching point was made on behalf of the defendants. It was submitted that the plaintiffs cannot ignore, as it was

suggested they had done, the fundamental statutory basis on which the defendants are operating the Green Line. That statutory

basis is the Line B Order, which was made on the authority conferred by the Act of 1996 and in accordance with its requirements. It

was submitted that, in the making of the Line B Order, there had been a predetermination of the level of environmental disturbance

resulting from the proposed operation of the Green Line which would not amount to a nuisance, either as a matter of fact or in law.

The Line B Order, it was submitted, pervades every aspect of the plaintiffs’ case and, in particular, whether the noise levels created

by the Luas at the plaintiffs’ house constitute a nuisance.

3.7 As will be clear from the conclusions I have reached, which I will outline later, the structure of the plaintiffs’ claim and the

defence thereto and the plaintiffs’ reply to the defence, and the necessity of giving notice to the Attorney General because of the

constitutional issue raised by the plaintiffs, has given rise to complexity, both evidentially and as to legal submissions, which I believe

have clouded the real issue. The real issue, the liability of the defendants for noise generated by the operation of the Green Line, is

primarily determined by what the Acts of the Oireachtas and the secondary legislation under which the defendants operate the Green

Line authorise them to do. Therefore, the statutory framework within which the defendants now operate the Green Line and the

process by virtue of which they were authorised to construct and operate the Green Line, culminating in the Line B Order, are crucial

to the resolution of the issues raised in these proceedings. Accordingly, I propose considering those matters next.

4. Statutory Framework

4.1 Even though it has been superseded by the Act of 2001, the parties made their arguments by reference to the Act of 1996. I

propose adopting the same approach.

4.2 In its long title, the Act of 1996 was described as an Act to make further provision in relation to transport and for that purpose to

enable the relevant Minister to authorise by order the construction, operation and maintenance by the Board of a light railway serving

the City of Dublin and certain surrounding areas and to provide for connected matters. Section 3 provided that the Board might apply

to the Minister for a light railway order and that the construction of light rail works should not be undertaken unless the Minister

granted such an order under section 9. Section 4 designated the development and operation of a light railway and its maintenance,

improvement or repair by the Board an exempt development for the purposes of the Local Government (Planning and Development)

Act 1963. In essence, the process for obtaining an order from the Minister under s. 9 was analogous to the function of a planning

authority or An Bord Pleanála on a planning application in relation to other types of development.

4.3 What that process entailed was provided for in section 3 and sections 5 to 8 of the Act of 1996.

4.4 Section 3(2) required the application for an order to be accompanied by, inter alia, an EIS. Section 5 stipulated what the EIS

should and could contain. Sub-section (1) mandated that the EIS should contain certain specified information including:

(1) the data necessary to identify and assess the main effects which the proposed light railway works were likely to have

on the environment (para. (b));

(2) a description of the likely significant effects, direct and indirect, on the environment of the proposed light railway

works, explained by reference to their possible impact on various elements, which, insofar as are relevant for present

purposes, included human beings, and air and the interaction between the elements referred to (para (c));

(3) where significant adverse effects were identified with respect to any of the matters referred to in para. (c), a

description of the measures envisaged in order to avoid, reduce and, if possible, remedy those effects (para. (d)).

It also mandated that the EIS include a summary in non-technical language (para. (f)).

4.5 Sub-section (2) of s. 3 provided that the EIS might include, by way of explanation or amplification of any of the mandatory

information required under subs. (1), further information on any of the following matters:

“(a) the estimated type and quantity of expected emissions resulting from the proposed light railway works when in

operation,

(b) the likely significant direct and indirect effects … on the environment of the proposed light railway works which may

result from -

(i) …

(ii) the emission of pollutants, the creation of nuisances and the elimination of waste,

(c) the forecasting methods used to assess any effects on the environment about which information is given under para.

(b) …”

4.6 Section 6 required publication of notice of the making of the application for an order in one or more newspapers circulating in the

relevant area and the times and places at which the draft order and other documentation, including the EIS, might be inspected. It

stipulated that the places should be easily accessible to the public and the documentation should be available there for inspection.

The same section provided that a person might make submissions in writing to the Minister in relation to the proposed light railway

order or the likely effects on the environment of the proposed light railway works. Section 7 enabled the Minister to seek further

information where it was considered that the EIS did not comply with the provisions of s. 5, or that it was otherwise necessary so to

do. If the information furnished contained significant data in relation to the likely effects on the environment of the proposed works,

the Minister was required to publish a notice in respect of it and to make it available for inspection in the same manner as the EIS.

4.7 Section 8 mandated the Minister to hold a public inquiry into the application in the relevant area and, after consultation with An

Bord Pleanála, to appoint a person to be an inspector to hold the inquiry. The duties and powers of the inspector were set out in s. 8.

His primary duty was to hold the inquiry and to prepare and submit to the Minister a report in writing of the findings of the inquiry and

to include, if he should think fit, any recommendations he considered appropriate. Section 8 stipulated the parties who were entitled

to appear and be heard at the inquiry, for example, the Board, land owners and occupiers on whose land it was proposed to construct

the works, persons who made submissions to the Minister and “every other interested person”.

4.8 Section 9 dealt with the making of the light railway order. It stipulated the material which the Minister should consider, including

the EIS, the report of the public inquiry and the recommendations, if any, contained in it, any submission made by the relevant

planning authority, and any additional information furnished under s. 7. The type of order which the Minister could make was set out

in s. 9(2). It was an order authorising-

“(a) the Board to construct, maintain and improve the light railway works specified in the order or any part thereof,

(b) the use of the light railway works or any part thereof for the purposes of the operation of a light railway, and

(c) the operation, maintenance and improvement of a light railway or any part thereof,

in such manner and subject to such conditions, restrictions and requirements (and on such other terms) as the Minister

thinks proper and specifies in the order …”

There was a requirement for the publication of notice of the making of the order in Iris Oifigiúil and in at least two newspapers

circulating in the relevant area.

4.9 Section 10 provided that a lightway rail order should contain such provisions as the Minister considered necessary or expedient

and went on to list certain matters which might be covered, such as the specification of land the acquisition of which, and rights in

and over land the acquisition of which, were necessary to give effect to the order. It was also provided that the order might contain

such provisions as the Minister thought proper for the protection of the public generally, of local communities and of any persons

affected by the order.

4.10 Section 12 provided that a person should not question the validity of a light railway order otherwise than by way of application

for judicial review under Order 84 of the Rules of the Superior Courts 1986. It imposed a limitation period of two months from the

making of the order for bringing such application, unless the Court extended the period for good and sufficient reason. Section 47 of

the Act of 2001 now has similar effect save that the period of eight weeks is substituted for two months. Apropos of the defendants’

reliance on these provisions as giving rise to implied immunity from common law suits, in my view, the provisions cannot be construed

as having been intended to have, or as having, any such substantive effect. Such provisions have procedural effect only.

4.11 Succeeding sections of the Act of 1996 gave the Board specific powers in relation to the implementation of a light railway order,

including the carrying out of the works, for example, power to compulsorily acquire land, to enter on land, to lop trees and such like

(ss. 13, 14 and 15). As regard compulsory acquisition, a light railway order was deemed to have the same effect as a compulsory

purchase order under the Local Government (No. 2) Act 1960 (s. 13). There was provision for compensation for an owner or occupier

who should suffer loss, injury or damage or incur expense in consequence of the exercise by the Board of the powers conferred, the

compensation to be determined in accordance with the Land Clauses Acts, in default of agreement (s. 14). Of course, none of the

statutory powers of acquisition or interference conferred by those provisions were invoked against the plaintiffs. However, they were

cited by counsel for the Attorney General as positing various forms of interference with rights of ownership and enjoyment of property

which may occur in the course of carrying out the functions of the first defendant, some of which are subject to payment of

compensation and others are not, according to their impact on incidents of ownership, while other curtailments of the right to

enjoyment of property not specified may be covered by the common law – the tort of nuisance.

4.12 The Act of 1996 was repealed by the Act of 2001 but it was provided that any order made under the Act of 1996 should remain

in force. Section 4(2) of the Act of 2001 provides, for the avoidance of doubt, that any order made under the Act of 1996 includes

power to operate the railway to which it relates. The authority of the first defendant to operate the Green Line is now derived from

the Act of 2001.

5. Application for light railway order in relation to Green Line/EIS

5.1 The application for an order under s. 9 of the Act of 1996 in relation to the proposed Green Line was made in December 1998 by

the Board. It was accompanied by an EIS.

5.2 Chapter 5 of Volume 1 of the EIS entitled “Air” dealt, inter alia, with the issue of noise both during the construction and the

operation of the Green Line. It contained an account of “the methodology adopted in considering the potential impact on the noise

environment and the criteria for rating of impacts”. The parameter used to describe the noise was LAeq, which was described as “the

equivalent continuous noise level measured in dBA”, i.e. decibels. The criterion for rating noise impact in the case of the operation, as

distinct from the construction, of the Green Line, which is in issue in these proceedings, related to the extent to which LAeq 18 hours

is exceeded due to the operation of the Green Line (i.e. passing of the trams) over the pre-existing ambient LAeq level. Exceedances

were rated as follows:

(1) 0 to + 5 dBA as “slight”;

(2) + 5 dBA to + 10 dBA as “moderate”; and

(3) greater than + 10 dBA as “significant”.

Some general observations in relation to those ratings were then set out as follows:

“There is some overlap in these ranges as the smallest change in noise that people can detect is 2 to 3 dBA. In addition,

cognisance has to be taken of the absolute noise level since human tolerance to a change in noise levels is greater from a

lower base. Thus an increase of 10 dBA from a receiving noise environment of 50 dBA would comprise less of an impact

than an increase of 10 dBA from a receiving noise environment of 70 dBA.”

5.3 Detailed analyses of the noise impacts were provided in Chapter 7 on an area by area basis. The plaintiffs’ house, No. 3, is located

in what was designated Area 8, which extends from the Grand Canal to Milltown Viaduct. Section 7.8.5, which dealt with the impact

of noise in this area, disclosed that the Green Line would run along the alignment of the former Harcourt Street railway line. Between

Grand Parade and Ranelagh Road the level of the existing embankment would be raised by about 1.5 metres. This, in fact, was done

and the first plaintiff’s evidence was that her first floor bedroom, which is at the rear of No. 3, is in line with the rail track.

5.4 Remedial or reductive measures which were intended to be implemented in advance of and during the operational phase were

outlined as follows:

“To reduce the risk of additional noise from trams going around sharp curves, anti-wear and anti-squeak measures will be

applied to the rails….

The suppliers of the LRT trams will be required to incorporate noise control measures in the design of the cars to comply

with noise performance specifications.

The provision of acoustic screens will be considered at locations where the LRT runs proximate to noise sensitive

receptors.”

5.5 Section 7.8.5 recorded a number of exercises which were carried out in the preparation of the EIS with the objective of

calculating projected noise levels from the operation of the Green Line and the exceedance of those noise levels over existing noise

levels. The results of the exercises were tabulated in s. 7.8.5.

5.6 In the first exercise the existing noise environment was measured at six representative locations in Area 8 along the proposed

route, five of which were outside residential properties. The measurements were carried out over two days in August 1996 between

8am and 10pm. At each location the LAeq (based on a mean value of four 15 minute samples) and also the LAmax, being the maximum

noise level, were measured and recorded.

5.7 In the second exercise in relation to the operational phase, the noise level expected from the operation of the Green Line at the

six representative locations was predicted. Two distinct methodologies were used in this exercise. Where the receptor point was less

than 10 metres from the track, the expected noise levels were based on direct measurements carried out on the LRT system in

Grenoble. In the case of receptors which were 10 metres or more from the track, the methodology used was that contained in

“Calculation of Railway Noise 1995” published by HMSO using the source data from Manchester Metro Link. In relation to each of the

representative locations, the relevant calculation had regard to the distance of the receptor from the track and “the mean by pass

speed” of the tram. For example, in the case of the nearest location to No. 3, 32, Dartmouth Road, the receptor was only three

metres from the track and the speed factor in the calculation was 30 kilometres per hour. At that location the LAeq was predicted at

61dBA and the LAmax at 84 dBA.

5.8 The third exercise was to project the noise levels due to the operation of the Green Line and illustrate the exceedance of the

projected noise levels in LAeq over the existing and expected ambient levels. In the case of Area 8, a residential area, the existing

and expected ambient levels were treated as being the same. In conducting this exercise, in the case of each of four of the

representative locations, one being Elmwood Avenue Lower, an assumption was factored in for a 10 dBA reduction because of the

installation of an acoustic screen at the location, so that the projected noise level was 10 dBA lower than the predicted level at each

of those locations. The outcome of the exercise, the resultant, was arrived at by adding the existing noise and the projected LRT

noise logarithmically. The exceedance of the resultant over the measured existing noise level was then arrived at.

5.9 The results of the exercises, as tabulated in table 7.8.5.2.3, having factored in the assumption of a 10 dBA acoustic screen

reduction at the relevant locations, rated the exceedances at the six representative locations. In the case of three of the

representative locations, the exceedance over existing noise levels was classified as slight, being less than + 5 dBA, and at the other

three as moderate, being between + 5 dBA and + 10 dBA. In the case of 32, Dartmouth Road, where no acoustic screen was

envisaged, the exceedance was 3 dBA over the existing level of 61 dBA and was classified as slight. It is clear that the figure of 74

dBA which appears in table 7.8.5.2.3 as the resultant in relation to 32, Dartmouth Road is an error and the figure should be 64 dBA.

5.10 It was stated in Section 7.8.5 that during the operational phase noise levels would be “monitored at selected locations to check

for compliance with predicted levels”.

5.11 As was required by s. 5(1)(f) of the Act of 1996, the EIS contained a summary in non-technical language in Volume 3, which

dealt with air impacts including noise. In relation to noise impact during the operational phase, the non-technical summary stated as

follows:-

“During the operational phase of LRT the predicted noise impact varies from none to slight and moderate. Special noise

reducing screens are proposed at certain sensitive locations such as at Peter Place, on elevated sections of the former

Harcourt Street railway line, where the Line B track would be in close proximity to existing houses. … During the

operational phase of LRT, to reduce the risk of additional noise from trams going around tight curves, an anti-squeak

treatment will be applied to the rails. The light rail vehicles will incorporate noise control measures to minimise noise

effects. With these measures the predicted impact of noise varies from slight to moderate.”

6. Public Inquiry/Report of Inspector

6.1 In January 1999 the Minister appointed Judge Sean O’Leary (the Inspector), then a Judge of the Circuit Court, as Inspector for

the purposes of conducting a public inquiry into the Board’s application for an order under s. 9 of the Act of 1996 in relation to the

Green Line. The Inspector furnished his report to the Minister in June 1999, having conducted the public inquiry over seventeen days,

concluding on 19th May, 1999. As his report discloses, the Inspector considered a broad spectrum of matters ranging from a first

stage, which was concerned with whether there was a prima facie need for the proposal and whether that need could be

economically met, to a second stage which considered, inter alia, whether the scheme was practicable, viable and safe, and then to

a third stage of, inter alia, assessing the impact of the Green Line on local communities.

6.2 The issue of noise and vibration, which was obviously a key issue raised before the Inspector, was dealt with in paragraph 2.1.4

of the report. The Inspector referred to the fact that evidence had been given to the Inquiry by Mr. Eanna O’Kelly, an acoustic

engineering consultant, who had contributed to the sections of the EIS on noise. Mr. O’Kelly testified for the defendants at the

hearing of these proceedings. The Inspector stated that “the standards proposed by Mr. O’Kelly” appeared to him “to be reasonable”

and that he had accepted “the area by area analysis of Mr. O’Kelly as reasonable and the properties identified by him as appropriate

for noise assessment”. The Inspector specifically expressed appreciation for the objectivity of the evidence of Mr. O’Kelly in the

context that the conditions imposed on, and the concessions made by, the Board “with regard to the provision of acoustic screening

of one type or another” were based on his evidence, citing that the offers of solid acoustic screens at Elmwood Avenue and another

location had their origin in his evidence.

6.3 The following findings in relation to noise were made by the Inspector and are set out in para. 2.1.4:-

“In general the Inquiry is satisfied that except for areas of particular sensitivity, such as properties which are very close

to or have long boundaries with the line, the noise and vibration impact of the proposals would be slight. Conditions have

been proposed where necessary and in particular where, in the opinion of the Inquiry, specific circumstances render

additional work necessary. … The Inquiry notes that the applicant will be bound by the terms of the projected noise levels

identified in the EIS for both construction and operational phases.

Subject to the foregoing, the noise and vibration aspects of the project appear to be satisfactory.”

6.4 The Inspector recommended conditions to the Minister, including specific conditions in relation to abatement of noise at particular

locations where representations had been made in the course of the public inquiry. For example, one condition required the agreement

of Dublin Corporation (or, in default, a determination by the Minister) on a scheme of noise reduction by means of a solid barrier

between the rail track and the houses in Elmwood Avenue Upper, the effect of which would be to reduce the noise level by 10 dBA,

as had already been agreed between the parties (i.e. the Board and the residents).

6.5 Of more significance for present purposes is the fact that the Inspector also recommended a general condition in relation to

monitoring noise emissions and fixing daytime and night-time limits, which was subsequently conditioned into the Line B Order and

replicated therein almost verbatim.

6.6 The plaintiffs neither appeared at, nor made any submission to, the public inquiry. Their evidence was that they were reassured

by the statements made at meetings they had attended in relation to the Green Line project, as well as the non-technical summary in

the EIS, and they did not feel it necessary to attend the inquiry.

7. The Line B Order

7.1 The Line B Order expressly authorised the construction and maintenance of the works involved in creating the Green Line. It did

not expressly authorise the Board to operate of the light rail on the Green Line, but that is now expressly authorised by s. 4(2) of the

Act of 2001, so that any lacuna in the Line B Order has been supplied. The works authorised were identified with precision by

reference to each area, including Area 8.

7.2 In making the Line B Order, it was expressly provided that the powers granted to the Board shall be exercised subject to the

conditions set out in the 11th schedule. The specific conditions in relation to abatement of noise at particular locations, for example,

at Elmwood Avenue Upper, were included. The general condition in relation to monitoring noise emissions and fixing daytime and night-

time limits recommended in the Inspector’s report was included as condition 28, which was in the following terms:-

“Prior to the commencement of the operation of the light rail system, the Board shall submit to Dublin Corporation and Dun

Laoghaire-Rathdown Co. Council for their agreement, a schedule of locations at which it is proposed to monitor the noise

emissions from the operation of the light rail system, together with daytime and night-time limits at each location. In the

absence of agreement between the Board and the local authorities, the matter shall be determined by the Minister. …

The Board, in drawing up the schedule of locations and limits thereat, shall be bound by the obligations undertaken during

the course of the Public Inquiry, into the application of the Board, and recorded in the report of that inquiry.” (Emphasis

added).

7.3 The crucial issue in determining whether the defendants are, as they contend, operating the Green Line within the parameters

permitted by the Line B Order in relation to noise is the determination of what the Line B Order stipulated in relation to the levels of

noise that are permissible. While acknowledging that it did so “somewhat obliquely”, the defendants submitted that the Line B Order

proceeded on the basis that the defendants are bound by the EIS projected noise levels, referring to condition 28. They also

submitted that, as no condition was imposed by the Minister relating to noise abatement in the vicinity of No. 3, it must be “inferred”

that the Minister accepted that the level of noise produced at that location was lawful and did not constitute an unreasonable

interference with property in the area. The evidence given on behalf of the first defendant was that its understanding is that the Line

B Order binds it to operate within the noise levels predicted in the EIS and to introduce specific attenuation measures where the noise

generated exceeds the existing level by greater than 10 dBA LAeq.

7.4 The first defendant’s understanding is correct, in my view. As the words in the second paragraph of condition 28 to which I have

added emphasis indicate, the defendants are bound, by reference to paragraph 2.14 of the Inspector’s report, which I have quoted,

by the terms of the projected noise levels identified in the EIS for the operational phase, with which this case is concerned. But

condition 28, as the words to which I have added emphasis in the first paragraph indicate, appears to go beyond the EIS projected

standard and to envisage the putting in place of a standard which fixed both daytime and night-time limits. What is clear is that

condition 28 mandated that, prior to the commencement of the operation of the Green Line, the first defendant should agree a

schedule of locations for noise emission monitoring and also for daytime and night-time limits at each location with the relevant local

authority for the area through which the Green Line would pass, which in the case of No. 3 is Dublin City Council. In default of

agreement, those matters were to be determined by the Minister.

7.5 I propose considering next whether condition 28 was complied with.

8. Condition 28 complied with?

8.1 There was considerable controversy during the course of the hearing as to whether the first defendant has complied with

condition 28. In February 2004, when the commissioning of the Green Line was imminent, the first defendant wrote to both Dublin City

Council and Dun Laoghaire-Rathdown Co. Council setting out the text of condition 28 and stating that, in fulfilment of that condition,

it was the first defendant’s intention that, during the testing and trial running of the commissioning phase of the Green Line, a limited

pilot noise survey would be undertaken, which would provide the basis for the selection of the noise monitoring locations. On 3rd

June, 2004, Mr. O’ Kelly furnished the first defendant with two sets of data. One was the results of monitoring he had carried out at

six representative locations along the Green Line, three of which, including 32, Dartmouth Road, were located within Area 8. The

second was a list of locations which had been selected for future noise monitoring during the operational stage, the selection being

based on the close proximity of the locations to the tram line and because they were residential or hotel properties. Three of the

locations selected were within Area 8, but 32 Dartmouth Road was excluded.

8.2 On 8th June, 2004, the first defendant wrote to each of the local authorities. On the basis of Mr. O’Kelly’s test results at the six

representative locations, it was stated that, overall, while noise from the passing of trams was audible, the test readings indicated

that noises associated with the passing of trams at the locations did not contribute to the overall ambient noise level of the area. No

further noise monitoring associated with the Luas was proposed at those locations. Each local authority was informed that locations

selected by Mr. O’Kelly for future monitoring had been “identified as representative of worst case scenarios”. It was proposed that

noise monitoring would be carried out at those locations during the operational stage by the operator, the second defendant. Each

letter then went on to outline “significant practical difficulties” associated with setting or determining noise limits for locations

associated with the operation of Luas. Two principal difficulties were identified. The first was that the majority of sources of ambient

noise, road traffic and suchlike, were outside the control of the Green Line operator. Therefore, it was suggested, it was not practical

to set noise limits. The second was that the differential of operational noise between daytime and night-time was inappropriate,

because the noise associated with the tram was relatively consistent, with the trams generating the same level of noise both day and

night. The only variable at a receptor point was the frequency of occurrence of the passage of the trams. Tram frequency would be

reduced after 7pm and reduced further after 11.30pm. The proposition put to each local authority, having regard to the foregoing,

was as follows:-

“Therefore, it is not our intention to set limits or to differentiate day time and night time operational noise as detailed in

the LRO condition, as the ambient noise of any particular location is largely outside the control of the Luas operator.

Agreement in relation to the above is sought to close out LRO condition no. 28.”

8.3 Following a meeting between officials of Dublin City Council and the Environmental Manager of the first defendant, by letter dated

26th July, 2004, the first defendant wrote to Dublin City Council clarifying the position as follows:

“RPA operational noise proposal and proposed noise monitoring locations as per RPA letter dated June 8, 2004 are

acceptable to DCC in compliance with Line B LRO condition No. 28. DCC accept the content of the letter was not intended

as a detailed report but a proposal for agreement in compliance with the LRO condition No. 28.”

The letter then went on to state that the ongoing management of noise during the operational stage of the Luas Green Line was the

responsibility of the operator, the second defendant.

8.4 The local authorities accepted the proposition put forward in the letter of 8th June, 2004, Dublin City Council in writing and Dun

Laoghaire Rathdown County Council orally. There was no further consideration of implementation of condition 28.

8.5 On those facts, in my view, condition 28 has not been complied with, because the first defendant has not agreed daytime and

night-time limits at the locations agreed to by the local authorities nor, in default of agreement, sought a determination of the

Minister. That separate issues in relation to noise monitoring may have arisen as to the contractual liability of the contractors

involved in the construction phase to the first defendant is irrelevant. That Mr. O’Kelly subsequently, in September 2004, furnished a

report to AMB Joint Venture, the consortium which designed and constructed the Green Line, dealing with the monitoring of noise

levels since the coming into operation of the Green Line does not alter that finding. Nor does the fact that later in October 2006 and

in March 2007 Mr. O’Kelly furnished reports on the monitoring of noise levels on the Green Line to the second defendant, the operator,

alter that finding. In short, the first defendant deliberately decided not to comply with its obligations under condition 28. Despite the

concurrence of the two local authorities, in my view, condition 28 has not been “closed out” and the first defendant is still bound by

it.

8.6 Counsel for the defendants submitted that, even if condition 28 was not complied with, that would make no material difference to

the situation at the plaintiffs’ house. It was submitted that it is not the case that there are no limits on noise emissions as a result of

the operation of the Green Line. The limits by reference to the EIS, which I have already outlined, apply. In particular, it was

submitted that the Order permits the operation of the Green Line through residential areas without acoustic screens provided the

noise levels do not exceed the pre-existing ambient noise levels by ten decibels or more. Conversely, where there is such an

exceedance, the Line B Order requires that abatement measures be taken, including the provision of acoustic screens because of the

undertaking given by reference to the EIS in the course of the public inquiry. Counsel for the defendants contended that the results

of the tests carried out by Mr. Searson fall within the parameters of the EIS projections. The evidence supports that contention, as

was accepted by counsel for the plaintiffs. I will consider the legal implications of that fact later.

9. Structure of judgment

9.1 On the basis of the foregoing analysis of the statutory framework within which the Green Line is operated, I consider that the

resolution of the issue as to whether the defendants are operating the Green Line at the rear line of No. 3 in accordance with law

turns on the extent of the authority conferred and the obligations imposed on the first defendants under the Acts of the Oireachtas

and the secondary legislation which I have examined. That is a matter of construction of the Acts and the Line B Order and their

application to the facts.

9.2 Nonetheless, I consider it prudent to outline and comment on the legal submissions made by the parties on the issues as they

perceived them, having summarised the evidence.

10. The evidence – an overview

10.1 A very considerable body of evidence was adduced in this case which took up about 13 days of the hearing. The evidence

ranged far and wide. However, in my view, in considering the issues which arise for determination, the evidential focus can be

relatively narrow. The factual basis of the plaintiffs’ complaint is that, since the commencement of the operational phase of the Green

Line, their normal use and enjoyment of their home has been totally disrupted and undermined by reason of the noise levels created

by the trams as they pass at the rear of their home, particularly at night, when they experience serious sleep disturbance. They

contend that the noise levels created as the trams pass breach acceptable noise standards as prescribed by national and

international standards agencies. Further, they contend that the defendants have not exercised reasonable care towards them, in

that they have failed to mitigate that consequence by erecting noise reducing screens along the rail line at the rear of their home.

Leaving aside the legal and evidential issues, such as on whom the onus of proof of a particular factual matter lies, that is the

evidential basis of their claim in nuisance and their answer to the without negligence defence.

10.2 It was made clear by their counsel that the defendants accept the bona fides of the plaintiffs, although they are perceived as

asserting individual (i.e. private) concerns against the defendants, who are charged with carrying out bona fide public purposes.

10.3 There were matters raised in evidence which were not really in controversy. There is no controversy about the social utility of

the Luas system. There is no controversy that light rail transport is quiet relative to other forms of transport, such as DART, mainline

rail and road traffic.

10.4 There was, however, controversy as to what was represented by officials of the Board prior to the making of the Line B Order in

relation to the noise factor in the course of their engagement with members of the public in the Ranelagh area and elsewhere, through

information leaflets which were circulated to the public and at public meetings. It was certainly represented on behalf of the Board

that Luas would be “surprisingly quiet” or “surprisingly silent”. It was accepted by Mr. Michael Sheedy, the Director of Light Rail with

the first defendant, who had been involved in the project since its inception, that it was represented at the time that there would be

no significant problems with noise. The position of the first defendant was that what has happened in reality is that the number of

people, whether in relation to the Green Line or the other Luas Line, the Red Line, who have found noise to be a particular problem is

absolutely minimal.

10.5 The perception of the plaintiffs and their neighbours of the representations made on behalf of the Board was different. The

evidence of the first plaintiff was that she accepted that there would be virtually no noise impact from Luas on her home and, if there

was going to be an impact, the first defendant would take remedial steps by erecting acoustic screens along the Green Line. It was

pleaded in the plaintiffs’ statement of claim, and it was argued on their behalf, that assurances given by the representatives of the

Board in its information literature, at meetings and in the EIS gave rise to a legitimate expectation that the first defendant would put

in place noise reduction measures so as to ensure that no unacceptable noise nuisance would be caused to the plaintiffs in the lawful

use and enjoyment of their home.

10.6 On the evidence, I find that the Board did not make any representation or give any assurance or undertaking prior to the making

of the Line B Order on the basis of which the plaintiffs could have had a legitimate expectation that the first defendant would provide,

and that there is not otherwise an obligation on the defendants to provide, acoustic screens on the Green Line at the rear of No. 3

having regard to the noise impact which the operation of the Green Line has had on No. 3 as disclosed in the evidence.

10.7 Essentially, two types of evidence were given as to the nature of that impact. One was evidence given by the plaintiffs and

their near neighbours of their personal experiences since the Green Line came into operation. The other was expert evidence. It was

based broadly on the tests carried out by Mr. Searson and Mr. O’Kelly, which established the actual noise levels created by the tram

passes at the rear of No. 3 and, in the case of Mr. O’Kelly, at a proxy location at Northbrook Road, and how the results related to the

EIS predictions and to the national and international standards invoked by Mr. Searson.

11. Evidence of the experiences of the plaintiffs and their neighbours

11.1 The plaintiffs and their neighbours who gave evidence testified as to the peaceful and tranquil nature of the immediate

environment of Cambridge Terrace, a terrace of eleven residential properties. Even though located in a suburban area close to the

city centre, I am satisfied that prior to the coming into operation of the Green Line, Cambridge Terrace was, as the first plaintiff

described it, “a very quiet enclave”.

11.2 The plaintiffs and their neighbours complained about the adverse impact of the tram passes on the amenity of their long south

west facing back gardens. The second defendant testified that, since the Luas Green Line operation commenced, it is difficult to hold

normal conversation in the garden and, as a result, over time the plaintiffs have stopped using the garden for entertainment and have

used it a lot less to relax in. There was similar testimony from their next door neighbour in 4, Cambridge Terrace, Mr. Joe Geoghegan.

11.3 In relation to the interior of No. 3, the plaintiffs complained that the noise of the trams is very intrusive in the kitchen and dining

area on the first floor. Mr. Geoghegan also testified as to the disruptive effect of the tram noise on the living areas of his house.

11.4 The plaintiffs and their neighbours also complained of the noise impact in the bedrooms at the rear of their houses. In fact, sleep

disturbance was described by counsel for the plaintiffs as the single greatest complaint they have. The main problem for the plaintiffs

is trying to get to sleep at night. The first plaintiff described what happened when Luas went into full operation and the problem she

encountered with noise in the bedroom. She likes to sleep with the window open. She likes to go to bed about 11pm or 11.30pm. The

last tram passes the house at about 1am. She found that, as she started to fall asleep, a tram would pass and the noise would

prevent her sleeping. Until the last tram had passed there was not a long enough interlude between the trams to enable her to fall

asleep. She has tried to get used to the noise but she has not been successful. Her solution is to go to bed later and to close the

windows occasionally. Sometimes she sleeps at the front of the house, but the master bedroom is at the back of the house. As I

have stated, since the elevation of the railway embankment that room is in line with the tram track.

11.5 Mr. Geoghegan testified that it was a major disappointment and a major shock to him when the Green Line came into operation.

He finds the noise in the bedroom with the windows open terribly disruptive at night and described its effect as being “almost like an

alarm clock” in wakening him up. The first tram goes by shortly after 5am. Frequently he gets up at that time because he is awake

and cannot get back to sleep.

11.6 There were also complaints from witnesses about flashing lights and noise when maintenance works are being carried out on the

track occasionally at 2am to 3am. Mr. Sheedy’s evidence was that it is necessary to carry out maintenance work at night because

otherwise disruption to the Luas service would be too significant.

11.7 All of the residents of the Ranelagh area, including the plaintiffs, who gave evidence were of the view that the level of noise

from the Green Line has increased since it went into operation in 2004. The plaintiffs pointed out that the situation is exacerbated

around Christmas when extra late night trams are in service. The last tram can pass as late as 3.30am, if not later.

11.8 One could be in no doubt about the bona fides of the plaintiffs and their neighbours on the basis of their evidence. One matter

which I do not consider to be of any particular significance to the resolution of the issues which fall for determination in this case,

although it does point to the bona fides of the plaintiffs and their neighbours, was the evidence of Mr. Fergus Mulligan, the owner and

occupier of 44, Oakley Road, Ranelagh. Mr. Mulligan, apart from testifying as to his own personal experience, which was that the

noise from the tram passes at his home is very intrusive, gave evidence in relation to dealings by residents in the Oakley Road area

directly, and through local representatives, with the first defendant in relation to the provision of an acoustic screen at that location.

On the evidence, it is clear that there was interaction and, at least, agreement in principle in relation to the installation of a Plexi

glass screen at Oakley Road, if the residents were prepared to pay for its installation. The possibility of a similar solution at Cambridge

Terrace was mooted. However, nothing came of the proposal in relation to Oakley Road.

12. Expert analysis of the plaintiffs’ experiences

12.1 A strong theme in the defence, which strays into the realm of expert evidence, was that the plaintiffs are particularly sensitive

to noise. Even though two of their neighbours, Mr. Geoghegan and Mr. Mulligan, testified as to similar effects of the noise on them as

were experienced by the plaintiffs, the defendants urged that the plaintiffs, as regards sensitivity to noise, should be regarded as

being within a very small percentage of the population who respond similarly to such noise. That theme was based on the evidence of

Mr. Rupert Taylor, an expert in the field of acoustics, noise and vibration control with international experience, who testified on behalf

of the defendants.

12.2 Mr. Taylor explained that, while noise can be measured physically in terms of engineering units, the results of those

measurements have no direct meaning unless they are related to the effect of noise on people through research, by studying the

effect on a population of people. The research gives a means of relating a measured noise level to the probability that a person within

a population will respond in a particular way, whether by annoyance, sleep disturbance or hearing damage. Taking the noise levels due

to tram passes at No. 3 recorded by Mr. Searson, which, for comparison purposes, Mr. Taylor translated to Lden level “in the low

50s”, Mr. Taylor’s evidence was that research indicates that such level of noise disturbance results in 2.5% of the population being

highly annoyed, 10% of the population being annoyed and 25% of the population being a little annoyed. On the basis of that research

(carried out by Miederma and Oudshoorn and published in Environmental Health Perspectives, Volume 109, No. 4, April 2001), Mr.

Taylor deduced that the plaintiffs are not among the group classified as ordinary; rather they are highly sensitive and are

representative of a very small proportion of the population who would be expected to have the high annoyance which they have

demonstrated – 2.5% of the population.

12.3 Mr. Taylor also referred to the phenomenon well known in the study of human reaction to noise called habituation. When there is

a change in the noise environment, residents react in the short term to a greater extent than they do over a longer period. Mr. Taylor

deduced that there may have been no habituation on the part of the plaintiffs. One of the plaintiffs’ neighbours who testified, Mr.

Patrick Linders, of 5, Cambridge Terrace, in his evidence, seemed to describe the habituation effect, in that he acknowledged that

one grows used to the change in noise levels with the passage of time.

12.4 Mr. Taylor’s evidence based on his interpretation and application of the research results to the plaintiffs was not contradicted by

contrary expert evidence. Its implications will be considered later.

12.5 Another theme which ran through the defendants’ case was to a large extent based on what I consider may properly be

described as Mr. Taylor’s assessment of the plaintiffs’ evidence of their experiences as related by them in Court. That theme was that

the plaintiffs would not notice and, consequently, would not benefit from, any noise mitigation measures adopted by the defendants

at the rear of No. 3. It is difficult to understand how, even if that were the case, it could debar the plaintiffs from a remedy to which

they would be otherwise entitled. Aside from that, so far as the thrust of Mr. Taylor’s evidence was that the Court should infer that

the plaintiffs would not benefit from any reduction in noise levels effected by the installation of acoustic screens, I do not think it

appropriate to draw such an inference on the basis of their reaction to events late in 2007. The evidence shows that due to rail

grinding in the vicinity of Cambridge Terrace in November 2007 noise levels were reduced – “very dramatically reduced” – according to

Mr. Taylor. When asked to comment on the plaintiffs’ evidence to the effect that they had not noticed the reduction, Mr. Taylor’s

evidence was that he was at a loss to understand how a very substantial reduction in loudness could not have been noticed.

However, the evidence shows that by July 2008, when Mr. O’Kelly took measurements, the noise levels had reverted to the pre-

grinding level. As I understand the evidence of both Mr. Sheedy and Mr. O’Kelly, they acknowledge that the noise reduction due to

the rail grinding was not lasting in its effect. That being the case, in my view, the plaintiffs’ evidence of their personal experience is

understandable.

13. Expert evidence

13.1 In outline, the plaintiffs’ case based on the scientific evidence, which is primarily the results of the tests carried out by Mr.

Searson and his conclusions on the basis of those test results, is that the noise levels created by the operation of the Luas in No. 3

breached acceptable noise standards. As a consequence, it was argued on their behalf, that, with a view to reducing the noise levels

to an acceptable level, acoustic barriers should be installed to protect No. 3. The evidence of the plaintiffs’ expert, Mr. Searson, was

that such screens should be capable of being installed at a moderate cost to the defendants.

13.2 At the outset, it is important to record that, in relation to all of the tests carried out by Mr. Searson, no question arose as to

the manner in which the tests were conducted or the accuracy of the results. What was seriously in controversy, however, was the

propriety of the application of guidelines and standards relied on by Mr. Searson to the results, having regard to the alleged difference

between the methodology underlying the guidelines and standards and the methodology employed by Mr. Searson. The relevance of

those guidelines and standards was also seriously in issue.

13.3 The results of all of the tests carried out by Mr. Searson were put in evidence, together with his reports in which he analysed

the test results. As I have stated at the outset, Mr. Searson was first retained by the plaintiffs in July 2004. On four different

occasions between 27th July, 2004 and 5th April, 2006, he conducted in all 55 tests, some outdoor, on the patio at the rear of No. 3,

and some indoors, in the master bedroom of No. 3. The results of the tests were annexed to and analysed in his first report, which

was dated 12th April, 2006. Some of the tests were conducted in daytime and others at night. The test results include the indicators

recorded in the EIS in relation to the representative locations dealt with in the EIS – LAeq and LAmax – and also the LAe (otherwise

SEL), being the average decibel level reduced to one second. A number of controversies arose in relation to Mr. Searson’s test results

and his analysis and application of them.

13.4 One controversy related to the appropriateness of the time period to which the LAeq related, many of Mr. Searson’s tests

relating to periods as short as ten seconds or fifteen seconds, the duration of a tram pass. As a non-scientific person, I find it

difficult, but unnecessary, to express a preference on the appropriateness of periods of short duration as against periods of longer

duration, or on Mr. Searson’s argument that the latter have a dilutant effect. Having said that, I am acutely conscious that, in

comparing Mr. Searson’s test results with the predictions in the EIS and in the application of guidelines and standards which he called

in aid, it is necessary to ensure one is comparing like with like before drawing inferences. Similarly, I find it difficult, but unnecessary,

to come down on one side or the other on another controversy – as to whether LAmax (Mr. Searson’s contention) or SEL (Mr. Taylor’s

contention) is the more reliable indicator of sleep disturbance.

13.5 Other controversies in relation to the scientific evidence arose from Mr. Searson’s criticism of the methodology adopted in the

EIS. Leaving aside the question whether, as a matter of law, any criticism of such methodology can be brooked in a Court with a view

to overriding or side-stepping the implementation of the elements of the Line B Order derived from the EIS almost a decade after it

was made, to which I will return, those criticisms were answered by Mr. Taylor in his evidence. As to the adequacy of the EIS

methodology in general, Mr. Taylor’s evidence was that it followed conventional practice at the time of its preparation, but he did

recognise that the methodology for predicting and regulating noise impact has evolved over the past decade. For instance, another

indicator which is increasingly used in the measurement of environment noise, Lden, which takes account of the differences in noise

between day, evening and night time, was the subject of much discussion at the hearing. It is based on LAeq but adds a 5dB

weighting for evening and a 10dB weighting for night time. It is recommended in the Guidelines for the Treatment of Noise and

Vibration in National Road Schemes (Revision 1, 25th October, 2004) published by the National Road Authority (NRA guidelines),

because it is the preferred European Union indicator.

13.6 The evidence was that the NRA guidelines objectives have been conditioned by An Bord Pleanála, which under the Act of 2001

now performs the function formerly performed by the Minister in making an order under s. 9 of the Act of 1996, into the order made in

2007 under the Act of 2001 in relation to Luas Line A1 (Belgard to Saggart extension). Further, Ms. Ann Lillis, the Environmental

Manager with the first defendant, testified as to the first defendant’s recent policy in relation to noise mitigation measures by

referring to the position adopted in relation to the line she referred to as “Metro North”. Her evidence was that the first defendant

decided to adopt the NRA design goal of 60 Lden as a matter of practice.

13.7 Mr. Taylor’s evidence was that, on the basis of Mr. Searson’s tests, the Lden night time measurement at No. 3 is comfortably

below the NRA guideline threshold. Though invited to do so in cross-examination, Mr. Searson declined to comment on whether, by

weighting his results by 10dBA for night-time, the results would be within the NRA guidelines threshold.

13.8 Turning to the specific criticisms of the methodology used in the EIS expressed by Mr. Searson or implicit in his evidence, on the

basis of Mr. Taylor’s evidence, I am satisfied that the criticisms do not stand up. First, I accept that it would be completely

impracticable, in the preparation of an EIS for a project of the magnitude of the Green Line, to take measurements at so many

potentially affected locations that would indicate that measurements should have been taken in the rear gardens of, or inside, the

houses at Cambridge Terrace. In making that observation I am not overlooking the fact that the railway embankment was raised at

the rear of the gardens in Cambridge Terrace or the significance attached by the plaintiffs’ witnesses to the alignment of the track,

and, in particular, the significance attached by Mr. Searson to the fact that the master bedroom in No. 3 has a direct line of sight to

the rail line. If the rear of No. 3 had been selected as a representative location, I think it probable that the prediction would have

been moderate impact, as Mr. Taylor opined. Secondly, Mr. Taylor’s evidence was that inside noise assessments are never done in the

preparation of an EIS and other evidence corroborates that. Mr. O’Kelly’s evidence was that there is a standard reduction of 15 dBA in

the LAeq 18 hour level, when one moves from outdoor to indoors and that the difference internally with a window shut rather than

open is in the region of 12/13 dBA to 15 dBA, suggesting a mechanism for estimating interior measurements from exterior

measurements. Thirdly, Mr. Taylor rejected criticism of the EIS on the ground that night time measurements had not been taken in its

preparation. His evidence was that the LAeq 18 hour index, which was used, is a long established procedure and gives a fair proxy for

an entire 24 hour exposure to transportation noise, although, as I have stated, he acknowledged that environmental assessment is

evolving and noted that the Lden index is now being used in environmental assessment. Mr. O’Kelly’s view was that, if Luas trams

operated at 3am or 4am, he would deem it appropriate to take night time measurements, but not otherwise.

13.9 In addition to the tests conducted between 2004 and 2006, Mr. Searson conducted a further 53 tests at No. 3 on various dates

between the end of July 2007 and the end of June 2008 and he analysed and commented on the results of those tests in his reports

of 8th November, 2007, 16th November, 2007, 30th April, 2008 and 25th June, 2008. Mr. Searson and Mr. O’Kelly jointly conducted

noise measurements within the master bedroom of No. 3 on the 11th July, 2008 with the window open. Mr. O’Kelly put the results of

those tests in evidence. Mr. O’Kelly had also included No. 3 in monitoring tests for the second defendant which he conducted in June

2007. At the end of 2007 and in July 2008, Mr. O’Kelly conducted tests for the first defendant at a location on Northbrook Road which

was chosen as a proxy for No. 3.

13.10 For a variety of reasons, direct comparability between the test results put before the Court by Mr. Searson and the EIS

prediction in relation to the nearest representative location to No. 3, 32, Dartmouth Road, is difficult, an important factor being the

different time period of measurement for the purposes of the LAeq level. However, Mr. Searson accepted in cross-examination that

the noise produced by the passage of trams as reflected in the results of his tests was generally within the parameters predicted in

the EIS. In relation to the LAmax, to which Mr. Searson attached much importance, there was no exceedance of the prediction in the

EIS for 32, Dartmouth Road in any of the outdoor tests conducted by him at No. 3, nor was there an exceedance in the tests carried

out by Mr. O’Kelly at the proxy location at Northbrook Road on 6th July, 2008. It was accepted by the witnesses on behalf of the

defendants that the average speed of the Luas at the rear of Cambridge Terrace is 60 kilometres per hour, twice the speed factor on

which the prediction in relation to 32, Dartmouth Road was based. It was also accepted that noise level increases as speed increases.

Nonetheless, the evidence is that the noise levels emanating from passing trams at No. 3 are within the parameters predicted in the

EIS. I so find.

13.11 The significance of that finding, that the noise levels generated by the trams at the rear of No. 3 are within the parameters

envisaged in the EIS, will be considered later. The plaintiffs’ contention that the noise levels created by the operation of the Green

Line are in breach of acceptable noise standards to which, it was contended, the defendants must have regard, is not, and could not

be, based on any infringement of the noise levels envisaged in the EIS on the basis of which the Line B Order was made. That

contention is based on Mr. Searson’s opinion that the noise levels generated by Luas at No. 3 should conform with the criteria

outlined in two publications, namely:

(1) Guidelines for Community Noise, published on behalf of the World Health Organisation in 2000 (the WHO guidelines);

and

(2) Sound insulation and noise reduction for buildings – Code of Practice (BS 8233:1999) (the BS Code).

13.12 The WHO guidelines were adopted by an expert taskforce which met in April 1999. The guidelines have not been adopted as a

binding standard in this jurisdiction. The aspect of the guidelines relied on by Mr. Searson is to be found in table 4.1, which is headed

“Guideline values for community noise in specific environments”. The element of that table on which Mr. Searson primarily focused was

the guideline in relation to the interior of bedrooms. The table puts the level beyond which noise may give rise to sleep disturbance at

night at 30 dB based on LAeq 8h measurement and at 45 dB on LAmax measurement.

13.13 Mr. Taylor criticised Mr. Searson’s promotion of the WHO guidelines as an appropriate standard on a number of grounds. First he

emphasised that the WHO guidelines are not a formal publication of the WHO. He was not aware of any country which had adopted

the guidelines as a standard. In general, he stated that, while they are good standards to strive for, they are actually in practice

unachievable in residential areas as a whole and it would never be possible to develop land and transportation systems while achieving

the levels specified. Secondly, Mr. Taylor made the point that it is not possible to make a comparison between Mr. Searson’s LAeq

results and the LAeq thresholds in the guidelines without recalculating Mr. Searson’s results to produce a value of LAeq 8h to compare

like with like in table 4.1. In other words, he contended that Mr. Searson had misapplied the guidelines. Thirdly, in reliance on the

commentary in the WHO guidelines which preceded table 4.1, Mr. Taylor opined that SEL, not LAmax, is the more consistent measure

of single noise events with an effective duration of ten to thirty seconds, such as a tram pass. He put the threshold in SEL values

corresponding to LAmax of 45 dBA at 55 to 60 dBA. Mr. Taylor’s conclusion, applying the guidance correctly, that is to say, treating

the SEL as the best indicator, to Mr. Searson’s results was that, there was a slight excess above what was suggested in the

guidelines as the level and number of events (not to exceed SEL values of 55 to 60 dBA more than ten to fifteen times per night) for

good sleep, but the excess was not material.

13.14 During cross-examination Mr. Taylor stated that the Court should have regard to the totality of the evidence, particularly the

relationship between noise levels and observed community response. He stated that he was not suggesting that the Court should

disregard the WHO guidelines, which he described as an important document widely referred to, but also widely misunderstood and

applied in a wrong manner. He continued:

“I have attempted to show that the position at 3, Cambridge Terrace is at about the borderline between the point at

which, if the noise were greater, you would start looking at noise barriers. But it is just at the top of the range. Looking

at yet another document, the Draft Dublin Action Plan says it’s a quiet area. Given all the consequences of a decision

requiring noise barriers which Mr. Sheedy explained, it does not appear necessary to require them here.”

13.15 The reference to the Draft Dublin Action Plan was a reference to the Dublin Agglomeration Draft Action Plan relating to the

assessment & management of environmental noise, a public consultation document which was published by the four local authorities

in the Dublin area in July 2008 pursuant to the Environmental Noise Regulations 2006 (S.I. 140/2006), implementing the Environmental

Noise Directive (2002/49/EC). While it was common case that No. 3, even with Luas passing at the end of its back garden, falls within

the 41.5% of residential addresses within the Dublin City Council area within the definition of a “quiet area” for the purposes of the

Draft Dublin Action Plan, I consider that Mr. Searson was correct in stating that it does not go to the issues in this case, which relate

to the noise effects of the passing of the trams on the occupiers of No. 3.

13.16 Turning to the BS Code, its scope is explained in para. 1 as follows:

“These criteria and limits are primarily intended to guide the design of new or refurbished buildings undergoing a change of

use rather than to assess the effect of changes in the external noise level.”

Mr. Searson relied on table 5, which sets out “indoor ambient noise levels in spaces when they are unoccupied”. For “reasonable

resting/sleeping conditions” in bedrooms, the maximum level for good conditions is a LAeq of 30 dB, whereas for reasonable conditions

it is 35 dB. Further, it is stated that for a reasonable standard in bedrooms at night, individual noise events should not normally

exceed 45 dB LAmax. In relation to the LAeq measurement, Mr. Taylor pointed out that para. 7.3 indicates that, in the case of

bedrooms, the time period to which the LAeq relates is eight hours, so that the difficulty in relation to applying the WHO guidelines to

Mr. Searson’s LAeq results applies equally to the application of the BS Code. Mr. Taylor explained that, while the BS Code pre-dated

the WHO guidelines, its draftsmen drew inspiration from an earlier version from the WHO guidelines. In any event, it was common case

that the BS Code is intended as setting a standard for sound insulation and noise reduction in building design rather than for defining

the impact of transport corridors on adjacent buildings.

13.17 For completeness, it should be pointed out that while, in addressing the evidence in relation to the WHO guidelines and the BS

Code, I have concentrated on the criteria stipulated therein in relation to inside bedrooms, Mr. Searson also relied on the

recommended “outdoor living area” level in the WHO guidelines in relation to the plaintiffs’ garden patio area and contended that it

was infringed.

14. The plaintiffs’ case for acoustic screens

14.1 On the basis that the levels recommended in the WHO guidelines and the BS Code have been exceeded, Mr. Searson’s evidence,

in harmony with his various reports, was that noise mitigation or attenuation barriers should be installed at the rear of No. 3 with a

view to significantly reducing what he described as the “wholly unacceptable noise intrusion” from the operation of the Green Line.

14.2 Mr. Taylor, in his direct evidence, acknowledged that, if an acoustic screen was installed as required by the plaintiffs, the noise

level at No. 3 would be less. However, as to whether there is an objective requirement for an acoustic screen at that location his

opinion was:

“In the context of generally applied criteria used internationally, we are at a point above which you would start to look at

the practicability of acoustic screens but only if the noise levels were materially greater than they are at present. We are

about at the boundary of the point where in other systems and other assessment approaches you start to look at the

practicability of acoustic screens.”

That is consistent with his response in relation to the WHO guidelines, which I have quoted earlier.

14.3 Ms. Lillis, in testifying in relation to the adoption by the first defendant of the NRA guidelines, having explained what that means

in practice as regards provision of noise barriers, expressed the belief that, in the case of No. 3, the trigger for such mitigating

measures under the NRA guidelines would not be reached on the basis of the level of noise being generated by trams at that location.

14.4 In his first report, Mr. Searson also recommended another measure to mitigate noise intrusion in No. 3 – the upgrading of the rear

windows at the rear of No. 3 – which, in Mr. O’Kelly’s opinion, should have been implemented by the plaintiffs. However, this has not

been done, although the evidence was that the plaintiffs’ neighbour in No. 5, Mr. Linders, had added the Ventrolla system to the

windows of his house to improve the performance of the windows in terms of draught and sound proofing. There was a minor

controversy as to whether adopting mitigation measures within No. 3 would be worthwhile. Mr. O’Kelly was of the view that the

installation of double glazed windows fitted with a sound attenuated ventilator would be both very effective and cost effective. On

the other hand, the first plaintiff envisaged difficulties in relation to making such changes, because No. 3 is a protected structure and

planning permission would be necessary for such works. In any event, as the first plaintiff pointed out, that solution would not remedy

the intrusion in the garden and patio areas. The plaintiffs’ position is that the installation of acoustic screens is the solution to which

they are entitled. A number of evidential issues arose in relation to screening.

15. Evidence in relation to acoustic screens

15.1 The evidence discloses that, after the Line B Order was made, consideration was given by consultants and advisers of the first

defendant, and its predecessor, the Board, to the construction of acoustic screens at certain locations which had not been

designated for acoustic screens in the EIS or the Line B Order.

15.2 For instance, in June 2000 Mr. O’Kelly had, in a letter to the Light Rail Project Office of the Board, suggested that acoustic

screens would be required at certain locations, including 32, Dartmouth Road, being properties which were “extremely close to the

line”. In fact, as the EIS discloses 32, Dartmouth Road is only 3 metres from the line. Mr. O’Kelly expressed the view that it would be

good practice to consider putting barriers at those locations. However, his suggestion was not taken up and it was decided to wait

and see whether the EIS predictions would be met. Mr. O’Kelly’s evidence was that the monitoring he carried out following the coming

into operation of the Green Line indicated that the predictions in the EIS were, in fact, not reached, let alone exceeded.

15.3 Later, in April 2003, in a report prepared by Sinclair Knight Mertz (SKM), who were advising the AMB Joint Venture, it was

recommended that mitigation measures which went beyond those required in the EIS be taken. The recommendations included a

proposal for reflective barriers at 32, Dartmouth Road. The SKM recommendation was made on the basis of a predicted increase in the

LAeq 18h at various sites, which it was anticipated would bring them above the +10 dBA over the pre-existing threshold. On the

evidence, I am satisfied that the recommendations made by SKM in relation to the installation of reflective barriers and low-height

noise barriers on Line B in the Ranelagh area did not relate to Cambridge Terrace.

15.4 Overall, I have come to the conclusion that the recommendations made by Mr. O’Kelly and SKM at the pre-commissioning stage

do not support the plaintiffs’ case for acoustic screens at No. 3 evidentially. Nor do the actions taken by the first defendant in

relation to noise issues at the Hilton Hotel and Peter’s Place, both locations outside Area 8 on the north side of the Grand Canal, in

early 2005 support the plaintiffs’ case. Particular factors arose at those locations, which required to be, and were, addressed, which

distinguished them from other locations, for example No. 3. The plaintiffs’ case stands or falls on whether, as they contend, the

defendants are creating a nuisance at No. 3 or, if it arises, are negligent in the operation of the Green Line.

15.5 In the reply given by Mr. Taylor during his cross-examination which I have quoted earlier, he hinted at the consequences which

would flow from the first defendant agreeing, or being ordered by the Court, to provide acoustic screening at the rear of No. 3. There

is no doubt that the evidence indicates that it could have serious financial consequences for the first defendant because it would set

a precedent which might give rise to demands from other occupiers of properties located along the Green Line and the other tram

lines operated by the first defendant for similar screens. There was evidence that there are over 600 buildings along the Green Line

from Charlemont to Churchtown in closer proximity to the track than No. 3. Some of those buildings are flat complexes which would

have more than one receptor. It is not possible to quantify the financial consequences.

15.6 However, I have to say that I found the evidence adduced on behalf of the defendants of the likely cost of installing acoustic

barriers at No. 3, the so-called “Rough Order of Magnitude” estimate, which ranged from €382,000 (a barrier 1.5 metre high, allowing

for a 5% risk) to €560,000 (a barrier 2 metres high with a 25% risk) utterly unconvincing as a genuine estimate of the probable cost

at that single location. It is to be noted that, in responding to a request for particulars of the cost incurred by the defendants in the

erection of noise barriers on the Luas system, the total cost was given as €138,007.35 by the defendants.

15.7 Other possible adverse consequences of erecting a barrier at the rear of No. 3 were adverted to in the evidence. The existence

of a barrier on the plaintiffs’ side of the track could give rise to potential problems for occupiers on the far side of the track. Not all

residents want barriers along the Green Line, it was suggested. Graffiti has been a problem on acoustic barriers. At some locations

anti-social behaviour has been associated with barriers. In this context Ballymount Castle on the Red Line was mentioned, where

youths have congregated inside barriers and stoned trams, resulting in trams having to be taken out of service because of broken

tram windows. Mr. Taylor in his evidence pointed to the potential for creating a different noise problem at the bridge over Northbrook

Road, if a barrier stretching from Cambridge Terrace were to be attached to that bridge. The context in which that evidence was

adduced on behalf of the defendants was in support of a submission made by counsel for the defendants, which is a cornerstone of

the defence of the plaintiffs’ claim, that a public inquiry of the type provided for in the Act of 1996 is a more appropriate forum for

dealing with the type of issues which arise from the construction and operation of a light rail system than a court adjudicating in

relation to a single location in an action in tort. The vehicle of the public inquiry enables a holistic view to be taken of all of the issues

which affect the statutory undertaking seeking the light railway order and the persons who are going to be affected by it, it was

submitted. In my view, that proposition cannot be gainsaid. Counsel for the defendants did, however, acknowledge that a case in

nuisance could arise against the statutory undertaker, and would arise in relation to the Green Line, if the operation of the Green Line

exceeded the noise parameters in the EIS, which the first defendant has undertaken to comply with.

16. Evidence to disprove negligence on the part of the defendants

16.1 The defendants adduced evidence to meet the evidential burden that they were operating the Green Line “without negligence”.

16.2 The witnesses called on behalf of the defendants, principally Mr. Sheedy, testified in relation to the general implementation of

the Line B Order in the construction and operation of the Green Line and, in particular, the measures which have been adapted to

minimise the level of noise generated. As a general proposition, I am satisfied that the defendants have fulfilled the promises in the

EIS in relation to anti-wear and anti-squeak measures and requiring that the trams incorporate noise control measures.

16.3 Insofar as negligence on the part of the defendants is an issue, I consider that on the plaintiffs’ case it must be limited to

whether the failure to provide acoustic screens to mitigate the level of noise from passing trams to which the plaintiffs are subjected

at No. 3 is a failure to act with reasonable regard for the plaintiffs’ interests.

17. Collateral challenge to Line B Order

17.1 At this juncture, it is convenient to dispose of one of the arguments advanced on behalf of the defendants – that, in substance,

in prosecuting these proceedings, the plaintiffs are advancing a collateral challenge to the validity of the Line B Order, which is

unlawful, because it has not been brought by way of judicial review in accordance with s. 12 of the Act of 1996. The argument is

that, in contending that the level of noise permitted by the Line B Order may be restrained by injunction or, alternatively, that the

installation of noise abatement measures additional to those prescribed in the Line B Order may be directed by injunction, the plaintiffs

are indirectly challenging the Minister’s determination as to the permitted level of noise in operating the Green Line without provision

of noise abatement measures as embodied in the Line B Order.

17.2 The sense in which the epithet “collateral” is customarily used in this context is that the challenge is made in proceedings which

are not themselves designed to impeach the validity of a decision or instrument. Whether these proceedings are properly regarded as

a collateral challenge to the Line B Order depends on an analysis of the case as pleaded and argued.

17.3 On one analysis, the defendants’ argument is based on a misconception of the plaintiffs’ case. The plaintiffs’ claim is a claim in

tort, which has been met by a defence of statutory authority. The reply of the plaintiffs, which expressly denies that they are

seeking to question the validity of the Line B Order, is to challenge the constitutionality of the defendants’ reliance on the defence of

statutory authority. The plaintiffs dispute that the Line B Order has the effect contended for by the defendants, namely, that it

predetermines, as a matter of law, the permitted noise levels and the requirements for noise abatement measures on the Green Line.

Whether the plaintiffs or the defendants are correct on that point, turns on the proper construction of the Line B Order. It is not a

question of the validity or otherwise of the Line B Order.

17.4 An alternative analysis is that, insofar as Mr. Searson’s evidence criticised the methodology used in the EIS, it could be regarded

as an attack on the Inspector’s report and on his recommendations and, ultimately, on the Line B Order, and, as such, a collateral

challenge to its validity. However, those criticisms have been already discounted on the basis of Mr. Taylor’s evidence.

17.5 As a general proposition, in my view, the defendants’ invocation of s. 12 does not, to use a colloquialism, cut the plaintiffs off at

the pass.

18. Legal principles relied on by the parties in their submissions

18.1 The linear structure of these proceedings – a claim at common law in nuisance seeking equitable and common law remedies in

the context of the operation of a public transport system, a denial of liability and of nuisance, inter alia, on the basis of statutory

authority, a challenge to the constitutionality of the defence of statutory authority raised, and the involvement of the Attorney

General under Order 60 because of the constitutional issue raised by the plaintiffs – should render it possible for the Court to

determine only the issues which require to be determined and, in particular, to exercise restraint in relation to the constitutional issue.

However, having regard to the manner in which the plaintiffs have identified the issues, as outlined earlier, and the manner in which

counsel for the plaintiffs and the defendants have structured their submissions, I reiterate that I consider it prudent to outline and

comment on the legal principles relied on in the submissions, before setting out the issues which I consider the Court must determine

and my conclusions on those issues.

18.2 In doing so, I propose to subsume the submissions under the following broad headings for the following reasons:

(a) the general characteristics of the common law tort of nuisance, because the plaintiffs’ claim is founded on that tort;

(b) how the common law principles applicable to the tort of nuisance are applied having regard to the impact of planning

decisions, whether zoning decisions or particular planning permissions, on the locality of, and on the activities which are

alleged to create, the nuisance, because, while acknowledging that a planning permission as opposed to statutory

authority cannot override private law rights, counsel for the defendants laid particular emphasis on the interplay between

the tort of nuisance and planning decisions and its importance in determining what level of noise can legally be regarded

as a nuisance;

(c) the defence of statutory authority in English law, because both the plaintiffs and the defendants viewed English law

as the fons et origo of the defence and relied on English authority;

(d) the defence of statutory authority in Irish law, because, apart from the contention that nuisance at common law has

not been established by the plaintiffs, the defendants’ answer to the plaintiffs’ claim is reliance on the authority conferred

on the defendants by the Line B Order which was made pursuant to the Act of 1996;

(e) the constitutional dimension to the application of the defence of statutory authority in Irish law, as posited on by the

plaintiffs; and

(f) the submissions of the Attorney General, in which I have found guidance as to the approach the Court should adopt in

identifying the fundamental considerations and what requires to be determined.

19. The characteristics of the tort of nuisance

19.1 The definitive statement of what is required to establish the tort of private nuisance is to be found in the judgment of the

Supreme Court in Hanrahan v. Merck Sharpe & Dohme (Ireland) Limited [1988] I.L.R.M. 629. In that case, in which the plaintiffs

claimed damages for injury to their personal health and injury to the health of, abnormalities in, and the death of, their cattle, which it

was alleged were caused by the escape of toxic gases and acid vapours from the defendant’s pharmaceutical factory, and personal

inconvenience and discomfort suffered by them, mainly by reference to smells, Henchy J. identified the legal basis of the claim in

nuisance being advanced by the plaintiffs as follows (at p.633):-

“To provide a basis for the award of damages for the private nuisance relied on, the plaintiffs have to show that they

have been interfered with, over a substantial period of time, in the use and enjoyment of their farm, as a result of the

way the defendants conducted their operations in the factory. The plaintiffs do not have to prove want of reasonable

care on the part of the defendants. It is sufficient if it is shown as a matter of probability that what they complain of was

suffered by them as occupiers of their farm in consequence of the way the defendants ran the factory.”

19.2 On the question of the onus of proof, Henchy J. stated (at p. 634):-

“It is common case that the probative aspect of a claim in nuisance has been correctly expressed by Gannon J. in the

following passage from his judgment in Halpin & Ors. v. Tara Mines Ltd. (High Court, 1973, No. 1516P, 16 Feb. 1976):-

‘A party asserting that he has sustained material damage to his property by reason of an alleged nuisance must

establish the fact of such damage and that it was caused by the nuisance as alleged. It is no defence to such a

claim, if established, that the activities complained of were carried out with the highest standards of care, skill and

supervision and equipment or that such activities are of great public importance and cannot conveniently be carried

out in any other way. In so far as the nuisance alleged consists of interference with the ordinary comfort and

enjoyment of the property of the plaintiff, his evidence must show sensible personal discomfort, including injurious

affection of the nerves or senses of such a nature as would materially diminish the comfort and enjoyment of, or

cause annoyance to, a reasonable man accustomed to living in the same locality. To my mind the reasonable man

connotes a person whose notions and standards of behaviour and responsibility correspond with those generally

pertaining among ordinary people in our society at the present time, who seldom allows his emotions to overbear his

reason, whose habits are moderate and whose disposition is equable’.

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.”

19.3 Later in his judgment, having recorded that the trial Judge had found that there was undoubtedly evidence that on a number of

occasions the processes carried on in the defendants’ factory were responsible for offensive odours, which were legitimately and

reasonably objected to by the plaintiffs and many others living in the area of the factory, but had gone on to find that the odours

were not on such a scale or intensity as to justify an award of damages, Henchy J. stated that that conclusion was incorrect and

was a misinterpretation of the relevant law, continuing (at p. 640) as follows:-

“As I have pointed out earlier in this judgment, by reference to the cited passage from the judgment of Gannon J. in

Halpin & Ors. v. Tara Mines, where the conduct relied on as constituting a nuisance is said to be an interference with the

plaintiffs’ comfort in the enjoyment of his property, the test is whether the interference is beyond what an objectively

reasonable person should have to put up with in the circumstances of the case. The plaintiff is not entitled to insist that

his personal nicety of taste or fastidiousness of requirements should be treated as inviolable. The case for damages in

nuisance …. is made out if the interference is so pronounced and prolonged or repeated that a person of normal or

average sensibilities should not be expected to put up with it. It is not necessary that the interference by objectionable

smell should be so odious or damaging that it affects the plaintiffs’ health. It is enough if it can be said that a reasonable

person in the plaintiffs’ circumstances should not be expected to tolerate the smell without requiring the defendants to

make financial amends. I consider the plaintiffs have made out such a case.”

19.4 In the Hanrahan case scientific evidence had been adduced that the results of monitoring of ambient air concentrations in the

vicinity of the factory and on the plaintiffs’ farm were well within the guidelines used by many authorities. Henchy J. treated the

scientific evidence as only showing what “could or should have happened in the way of damage by toxic emissions”. In the light of the

evidence of what did happen in the way of toxic damage, he considered that the defendant’s evidence could not be held to rebut the

plaintiffs’ case, stating that theoretical or inductive evidence cannot be allowed to displace proven fact.

19.5 The principles set out in Hanrahan were applied by the High Court (O’Sullivan J.) in Molumby & Ors. v. Kearns & Ors.

(Unreported, 19th January, 1999). The plaintiffs in that case lived in a suburban residential area in south Dublin and one of their

complaints was that noise and fumes associated with traffic movement on an adjoining industrial estate constituted a nuisance. There

were also planning issues in the case. In his judgment, having referred to the judgment of Henchy J. in the Hanrahan case as

capturing the essence of the tort of nuisance in Irish law, and having stated that ultimately the question of nuisance was one of

impression, O’Sullivan J. went on to apply the Hanrahan principles to the evidence which had been adduced, stating as follows:-

“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 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.

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 regard to the evidence of [the planning officer]. 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 on to 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.

I treat the locality not as exclusively residential but as a residential area, so zoned, adjoining a busy road in front and

with an industrial estate authorised by appropriate planning permission, in its midst.”

19.6 On the basis of that finding, O’Sullivan J. granted an injunction restricting access to the industrial estate by commercial vehicles

to 8.15am to 6.15pm on Monday to Friday and 9am to 1pm on Saturday. He also imposed other restrictions, for example, limiting

speed and prohibiting the running of engines during loading and unloading.

20. Impact of planning decisions

20.1 While the last paragraph from the judgment of O’Sullivan J. in the Molumby case quoted above addresses the impact of planning

decisions, zoning and planning permissions, in the determination of whether a nuisance exists, the issue is considered more directly in

the most recent Irish authority on noise nuisance to which the Court has been referred: the decision of the High Court (Charleton J.)

in Lanigan & Ors. v. Barry & Ors. [2008] IEHC 29. In that case the defendants operated a motor racing track in South Tipperary in an

area which was predominantly agricultural. The plaintiffs’ stud farm was within one kilometre, as the crow flies, of the motor racing

track. The stud farm was about 15 metres higher than the racing track, which had no natural acoustic barrier. The plaintiffs’

complaint was that their lives had been made unbearable by the noise generated by car racing and motor use of various kinds at the

defendants’ premises. The action was brought in tort for nuisance, but there were also planning law issues in the case. Having

outlined the evidence of the plaintiffs and other lay witnesses and the evidence of the noise experts who had testified, Charleton J.

stated (at para. 17):-

“I am satisfied that the noise experienced by the plaintiffs involves a pervasive, persistent, frequent and intolerable

intrusion. In reaching this conclusion, I am more influenced by the human reactions of the plaintiffs and their witnesses

than by any scientific evidence. Without the scientific evidence, a compelling case has been made of a severe nuisance

by noise, and I accept it as such.”

20.2 Earlier, Charleton J. had noted the differences between the ambient noise and the race track noise levels that had been

recorded both outside (between 14 and 24 decibels unweighted) and inside (between 11 and 12 decibels unweighted) the stud farm

premises. He commented (at para. 15):-

“A difference of 10 decibels unweighted, however, gives rise to the likelihood of complaints while differences at the level

recorded, I am satisfied, are likely to be intolerable to anyone with normal sensitivities. Even within Tullamaine Castle

differences of 11 and 12 decibels have been recorded at the Castle before one adds the 5 decibels weighting”.

The references to “5 decibels weighting” in that passage is a reference to evidence, which Charleton J. accepted, that a 5 decibel

weighting should be added on to the scientific reading where the noise is tonal in character and especially offensive.

20.3 In dealing with the law on nuisance, Charleton J. focused on the nature of the area in which the premises the subject of the

complaint are located, commenting that what would be a nuisance in quiet areas of Dublin 4 would not necessarily constitute an

actionable tort in the industrial heartland of West Dublin. In a passage on which counsel for the defendants relied, he considered the

relevance of planning permission in considering whether an actionable nuisance had occurred. At para. 22 he stated:-

“In considering the issue as to the amenity of an area, regard should be had to its immediate history and its character

prior to the commencement of the activity complained of. The character of a neighbourhood may, however, change. This

may be due to economic depravation or to the development within the area of enterprises and structures which change

its character. In that regard, the wider question as to how an area is to develop is to be determined in accordance with

the Planning and Development Act, 2000. The legislation is an example of the application of democratic principle to the

important question as to how the area in which a citizen lives, or carries on his or her business, may change. … Were the

legal mechanism of the scrutiny of planning permission not to exist and were it not the case that notice must now be

given in a direct manner through what is in effect an advertisement as to what may happen at the site of a proposed

development, then persons might feel aggrieved at being taken by surprise when a factory, set of apartments or some

house extensions, suddenly spring up beside them. The legal mechanism is there, however, to allow participation in

decisions which may affect the environment, the value of property and the nature of such quiet and comfort as may be

the settled expectation of people in any particular area. Therefore, where planning consent is given after due process for

a development, including a change of use, the issue as to what is a nuisance will be determined according to the

character of that neighbourhood as authorised by relevant planning permissions and as declared by the development

plan.”

20.4 Charleton J. went on to quote a passage from the judgment of Buckley J. in Gillingham Borough Council v. Medway (Chatham)

Dock Co. Ltd. [1992] 3 All E.R. 923 at p. 934, as representing an apposite approach. To put the quotation in context, Buckley J., not

having been referred to any case which had directly considered “the interplay between planning permission and the law of nuisance”,

had quoted part of the first passage from the speech of Lord Wilberforce in Allen v. Gulf Oil Refining Limited [1981] 1 A.C. 1001 to

which I will refer later, in which the nature of the defence of statutory authority is summarised, and he continued:-

“Doubtless one of the reasons for this approach is that Parliament is presumed to have considered the interests of those

who will be affected by the undertakings or works and decided that benefits from them should outweigh any necessary

adverse side effects. I believe that principle should be utilised in respect of planning permission. Parliament has set up a

statutory framework and delegated the task of balancing the interests of the community against those of individuals and

of holding the scales between individuals to the local planning authority. There is the right to object to any proposed

grant, provision for appeals and inquiries, and ultimately the minister decides. There is the added safeguard of judicial

review. If a planning authority grants permission for a particular construction or use in its area it is almost certain that

some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by

bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a

licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, a planning

authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the

effect of rendering innocent activities which, prior to the change, would have been an actionable nuisance…”

20.5 By way of general observation, insofar as it is relevant, the Gillingham Borough Council case was unusual, in that the plaintiff

planning authority was trying to restrain what was alleged to be a public nuisance, in circumstances where the activity complained of

was permitted by a planning consent which had been granted by the plaintiff five years previously. The claim failed when judged “by

reference to the present characteristics of the neighbourhood pursuant to the planning permission”.

20.6 Counsel for the defendants also relied on the more recent English authority, Watson v. Croft [2008] 3 All E.R. 1171, as

demonstrating the extent to which something authorised by a planning decision, particularly, a “strategic” planning decision, can be

taken to have changed a neighbourhood to the extent that a complaint about the thing authorised cannot thereafter constitute a

nuisance. In that case the claimants were seeking to limit, by injunction, the defendant’s operation of a motor circuit on the basis

that the noise from the motor circuit constituted a nuisance. The circuit had a complicated use and planning history. Planning

permission had been granted in 1963 for use for motor and motorcycle events. Ultimately in 1998, following a public inquiry, planning

permission had been granted to the defendant for continued use for those purposes on the basis of a unilateral undertaking given by

the defendant under a statutory provision in the United Kingdom planning code, which has no analogue in this jurisdiction. The

undertaking regulated the noise levels which were permitted at the circuit. An issue in the case was identifying the nature and

character of the neighbourhood relevant for assessing the question of nuisance and, in particular, whether the effect of the planning

permissions and the undertaking were such that the character of the neighbourhood must be determined by reference to activities

undertaken at the circuit subsequent to the planning permissions and to the undertaking.

20.7 In dealing with that issue, at first instance, Simon J. outlined two principles, which are “reasonably well settled”. The first was

that a planning authority has no jurisdiction to authorise a nuisance, although it may have power to permit a change in the character

of the neighbourhood (para. 41). The Gillingham Borough Council case was cited and the passage quoted earlier from the judgment of

Buckley J. was quoted. The second principle was that the issue of whether a permissive planning permission has changed the

character of the neighbourhood, so as to defeat what would otherwise constitute a claim in nuisance, is a question of fact and of

degree (para. 47).

20.8 Simon J. identified different approaches by the courts to the second issue. One was exemplified by the judgment of Peter Gibson

L.J. in Wheeler v. Saunders [1996] Ch 19 (where the Court of Appeal held that a planning permission to establish an intensive pig farm

did not involve considerations of community or public interest) from which he quoted the following passage (at p. 19):

“The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of

administrative decisions which cannot be appealed …”

20.9 The other approach was exemplified by the following passage from the opinion of Lord Hoffman in Hunter v. Canary Wharf Ltd.

[1997] A.C. 655 (which, insofar as it was material to the Watson case, concerned interference of television reception by a building

development), on which counsel for the defendants laid particular emphasis (at p. 710):

“The power of the planning authority to grant or refuse permission, subject to such conditions as it thinks fit, provides a

mechanism for control of the unrestricted right to build which can be used for the protection of people living in the vicinity

of a development. In a case such as this, where the development is likely to have an impact upon many people over a

large area, the planning system is, I think, a far more appropriate form of control from the point of view of both the

developer and the public, than enlarging the right to bring actions for nuisance at common law. It enables the issues to

be debated before an expert forum at a planning inquiry and gives the developer the advantage of certainty as to what

he is entitled to build.”

20.10 Counsel for the defendants underlined the last two sentences in that quotation as being of particular significance. However,

Simon J. did not apply the approach adumbrated by Lord Hoffman, by showing deference to the 1998 decision of the planning

authority with which he was concerned, because he considered that it was the defendant who dictated what would and would not

take place, including the noise level, in the process leading to the decision (para. 56). It was observed by Simon J., immediately after

the quotation from the opinion of Lord Hoffman, that it is more likely that a change of the character of a neighbourhood can be

identified where there has been a “strategic” planning decision affected by considerations of public interest (para. 50). On the facts,

Simon J. concluded that the decision to grant planning permission in 1998 could not be properly regarded as a strategic decision

affected by considerations of public interest. Even though noise from racing had occurred for 40 years, Simon J. did not accept that

the character of the neighbourhood had been changed, despite the gradual development of the circuit with an intensification of the

level of noise. He held that nuisance had been established and awarded damages rather than granting an injunction.

20.11 In a passage to which counsel for the plaintiffs pointed (at para. 57), Simon J. stated:-

“I do not accept the defendants’ contention that it is ‘wrong and contrary to public policy for a common law court to

travel over the same ground and to come up with an inconsistent conclusion’. It seems to me that this submission comes

close to a contention that the planning permission is determinative of the issue of private nuisance in a case such as this.

There may be sound arguments in favour of such a contention; but it does not represent the present state of the law.

What is essentially an administrative decision does not extinguish private rights without compensation”.

20.12 On a recent appeal in the Watson case, in its decision of 5th January, 2009, the Court of Appeal ([2009] 3 All E.R. 249) upheld

the finding of Simon J. of nuisance, but granted an injunction to the claimants. The Chancellor re-stated the basic principles (at para.

32) as follows:

“First, it is well established that the grant of planning permission as such does not affect the private law rights of third

parties. … Second, the implementation of that planning permission may so alter the nature and character of the locality as

to shift the standard of reasonable user which governs the question of nuisance or not.”

20.13 The emphasis in the Chancellor’s judgment, in outlining the second principle, was on the implementation of the planning

permission. The Chancellor rejected the proposition that planning permission, without implementation, is capable of affecting private

rights “unless such effect is specifically authorised by Parliament”.

20.14 The statutory process (now governed by the Act of 2001), which formerly culminated in the making by the Minister of a light

railway order under the Act of 1996, as regards what might be loosely called its planning and development aspects, may properly be

regarded as a process resulting in a strategic planning decision, as counsel for the defendants submitted. But there is more to the

statutory process on foot of which the defendants are operating the Green Line than that. It is a statutory process which authorises

a public project for the creation of transport infrastructure and for the operation of a public transport system. For that reason, I

consider the authorities on the impact of planning decisions in the context of the law of nuisance to be of little relevance in

determining whether the operation of the Green Line at the rear of No. 3 gives rise to an actionable nuisance at common law,

notwithstanding that the principle to be derived from the Gillingham Borough Council case was seen by Buckley J. as an offshoot of

the doctrine of statutory authority.

21. The defence of statutory authority in English law.

21.1 The authority in the United Kingdom on the defence of statutory authority most frequently cited in the courts in this jurisdiction,

and relied on by the defendants in this case, is the decision of the House of Lords in Allen v. Gulf Oil Refining Limited. It concerned

one of a number of actions taken by local residents against the defendant which, on the authority of an Act of Parliament, had

constructed an oil refinery and subsidiary works and was operating the refinery in their locality. The actions were based on allegations

of nuisance from noxious odours, vibrations and offensive noise levels. The defence on which the defendant was relying was statutory

authority. For the reasons set out later, I consider this decision of little, if any, persuasive value in identifying the relevant principles

applicable in this jurisdiction. Indeed it is to be noted that in Wade on Administrative Law (9th Ed., 2004) at p. 753, there is implicit

criticism of the decision. It is pointed out that the House of Lords made no mention of “the principle of the railway cases”. The editor

comments that the decision “seems to have weakened, if not removed, the protection which it gave to persons injured by the

operations of public authorities and bodies with statutory powers”, which the author characterised as “an injustice which Parliament

has felt bound to remedy” (by the Land Compensation Act 1973).

21.2 The statement of principle from the speech of Lord Wilberforce, which was, in part, quoted by Buckley J. in the Gillingham

Borough Council case, is to be found at p. 1011 and is in the following terms:-

“We are here in the well charted field of statutory authority. It is now well settled that where Parliament by express

direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries

with it an authority to do what is authorised with immunity from any action based on nuisance. The right of action is

taken away: …. To this end there is made the qualification, or condition, that the statutory powers are exercised without

‘negligence’ – that word here being used in the special sense so as to require the undertaker, as a condition of obtaining

immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the

interests of other persons: … It is within the same principle that immunity from action is withheld where the terms of the

statute are permissive only, in which case the powers conferred must be exercised in strict conformity with private rights

…”

21.3 Aside from the constitutional considerations which are of paramount importance in this jurisdiction, the application of the

foregoing principle by the House of Lords in the Allen case, in my view, is of little relevance or practical assistance in resolving the

issues in this case for a number of reasons. First, the matter came before the House of Lords as a preliminary issue on a point of law,

in a manner which the House of Lords itself considered to be unsatisfactory, in that no findings of fact had been made. Secondly, the

Act in issue was a private Act of Parliament. Thirdly, there was no public inquiry process. Fourthly, there was an issue of construction

of the Act and, in particular, whether, in the absence of an express authorisation in the Act, it authorised by implication the

defendant to use or operate an oil refinery. Lord Wilberforce found that it did. On that basis, he considered how the action should

proceed in the following passage (at p. 1013), which I quote because of the significance attached to it at the hearing by counsel for

the plaintiffs:

“The respondent alleges a nuisance, by smell, noise, vibration etc. The facts regarding these matters are for her to prove.

It is then for the appellants to show, if they can, that it was impossible to construct and operate a refinery upon the site,

conforming with Parliament’s intention, without creating the nuisance alleged, or at least a nuisance. Involved in this issue

would be the point discussed by Cumming-Bruce L.J. in the Court of Appeal, that the establishment of an oil refinery, etc.,

was bound to involve some alteration of the environment and so of the standard of amenity and comfort which

neighbouring occupiers might expect. To the extent that the environment has been changed from that of a peaceful

unpolluted countryside to an industrial complex (as to which different standards apply …) Parliament must be taken to

have authorised it. So far, I venture to think, the matter is not open to doubt. But in my opinion the statutory authority

extends beyond merely authorising a change in the environment and an alteration of standard. It confers immunity against

proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the

inevitable result of erecting a refinery upon the site … however carefully and with however great a regard for the interest

of adjoining occupiers it is sited, constructed and operated. To the extent and only to the extent that the actual

nuisance (if any) caused by the actual refinery and its operation exceeds that for which immunity is conferred, the

plaintiff has a remedy”.

21.4 Counsel for the plaintiffs emphasised the references in that quotation to the impossibility of constructing and operating a refinery

on the site conforming with Parliament’s intention without creating a nuisance, and to immunity against action in nuisance only arising

where the nuisance alleged is the inevitable result of erecting the refinery on the site. It was submitted that the creation of the noise

nuisance contended for at No. 3 is not the inevitable result of the operation of the Green Line, because it is open to the defendants

to reduce the level of noise which the plaintiffs have to endure from passing trams by the simple expedient of the erection of an

acoustic barrier. Even assuming that the plaintiffs, on the basis of the application of common law principles, are exposed to an

actionable noise nuisance, in my view, that submission is not a correct application of the principle stated by Lord Wilberforce to the

plaintiffs’ circumstances. It does not address the real question which would have to be addressed if one was to apply the Allen

principles – whether the operation of the Green Line in accordance with the Line B Order, which was made in pursuance of the Act of

1996, and is being operated pursuant to the Act of 2001, inevitably results in the plaintiffs being subjected to the level of noise

created by the passing trams. The answer turns on the proper construction of the Line B Order. In broad terms, the answer is that it

does, unless the level of the noise which is being generated by the passage of trams at the rear of No. 3 is such that it exceeds the

threshold above which the defendants are obliged by the terms of the Line B Order to provide acoustic screens or otherwise mitigate

the noise.

21.5 Counsel for the plaintiffs also focused on the following passage from the speech of Lord Edmund-Davies (at p. 1015), in which,

having highlighted the difficulty of having to deal with the matter at an interlocutory stage, he stated:-

“As yet there has been no trial to determine whether the working of the refinery, which began operation in 1967, does

constitute any nuisance (inevitable or avoidable), or whether Gulf has been guilty of negligence. Those issues are in

themselves capable of having considerable legal and factual complexity. The burden will be on the plaintiff to prove

nuisance or negligence, arising from the construction or operation of the refinery. On the other hand, it would be for the

defendant to establish that any proved nuisance was wholly unavoidable, and this quite regardless of the expense which

might necessarily be involved in its avoidance, whereas he will clear himself of negligence if at the end of the day it

emerges that any discomfort suffered by the plaintiff arose despite his exercise of reasonable care.”

21.6 What counsel for the plaintiffs invited the Court to extrapolate from that passage was that, where the defence of statutory

authority is invoked, the onus is on the plaintiffs to prove nuisance and then the onus shifts to the defendants to show that the

nuisance was wholly unavoidable irrespective of the expense involved in its avoidance. Counsel for the defendants submitted that

such approach does not represent the law in this jurisdiction or, indeed, in the United Kingdom, referring to an oft cited passage from

the speech of Viscount Dunedin in Manchester Corporation v. Farnworth [1930] A.C. 171. The defence of statutory authority was

explained by Viscount Dunedin (at p. 183) as follows:-

“When Parliament has authorised a certain thing to be made or done in a certain place, there can be no action for

nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so

authorised. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the

criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific

knowledge at the time, having also in view a certain common sense of appreciation, which cannot be rigidly defined, of

practical feasibility in view of the situation and of expense”.

21.7 I think it is instructive to put that passage in context. As the headnote discloses, that case concerned an action by a farmer

against the defendant, Manchester Corporation, for an injunction and damages on the ground of nuisance by the emission of

poisonous fumes from the chimneys of an electrical generating station erected by the defendant in the neighbourhood of his farm. The

defendant pleaded that the acts complained of were done in pursuance of the powers conferred by an Act of Parliament. The farmer

had been unsuccessful at first instance. However, the Court of Appeal, by a majority, had granted the farmer an injunction and

damages on the basis that the defendant had failed to prove that it had taken all reasonable precautions to prevent the nuisance.

The House of Lords affirmed the decision of the Court of Appeal, on the basis that the defendant had failed to prove that it had used

all reasonable diligence to prevent its operations from being a nuisance to its neighbours. So the quoted passage from the speech of

Viscount Dunedin does not tell the whole story, in that the House of Lords clearly recognised that the immunity from action in

nuisance conferred by statute is premised on the statutory undertaker proving that it has carried out the authorised works and

conducted the authorised operations with all reasonable regard and care of the interest of others.

21.8 The form of order made by the House of Lords, at the suggestion of Viscount Dunedin, throws light on what he meant by “ a

certain common sense appreciation … of practical feasibility in view of situation and of expense”. The unqualified injunction which had

been granted by the Court of Appeal was modified so that the defendant could apply to have it discharged on establishing that it had

exhausted all reasonable modes of preventing mischief to the plaintiff and submitting, presumably by way of undertaking, to adopting

in the future those modes and any reasonable but more effective modes discovered in the future. While the defendant was expected

to implement current best practice, it was implicit that expense was a factor to be taken into account in determining what was

reasonable.

21.9 It is interesting to note that in Wade (op. cit) at p. 755, the editor states in reference to the quoted passages from Viscount

Dunedin’s speech, that the “criterion of inevitability” will depend in each case on the true implications of the empowering statute,

which may pose difficult questions of construction.

21.10 Finally, in relation to the Allen case, both sides referred the Court to the following passages from the speech of Lord Roskill (at

p. 1023):-

“Where Parliament by express words or necessary implication authorises the construction or use of an undertaking, that

authorisation is necessarily accompanied by immunity from any action based on nuisance. The underlying philosophy

plainly is that the greater public interest arising from the construction and use of undertakings such as railways, must

take precedence over the private rights of owners and occupiers of neighbouring lands not to have their common law

rights infringed by what would otherwise be actionable nuisance. In short, the lesser private right must yield to the

greater public interest.

… But the immunity to which I have just referred is not unqualified or unlimited. The statutory undertaker must in return

for the rights and privileges which he has thus obtained exercise his powers without negligence, a word which has been

interpreted as meaning reasonable regard for the interests of others”.

21.11 Lord Roskill found those principles, which do not differ materially from the principles enunciated by Lord Wilberforce earlier, in

decisions of the House of Lords over the preceding 150 years dealing with the construction of Acts similar to the Act of 1965 under

consideration in the Allen case.

21.12 Although, as I have indicated, counsel for the plaintiffs resorted to aspects of the Allen case to distinguish or support the

plaintiffs’ position, the nub of the plaintiffs’ response to the defendants’ reliance on the defence of statutory authority was that an

analysis of the decisions from which the defence of statutory authority originated indicates an approach to construction which cannot

be adopted in this jurisdiction. Counsel for the plaintiffs submitted that in those cases, which were mainly concerned with the

operation of railways, the courts, in England, in interpreting the Acts conferring powers to operate the railways, had construed them

as giving an implied power to create a nuisance. That was certainly the case where the empowering Act expressly authorised the

running of trains on a railway authorised to be operated on a particular line, but it was not so if the empowering Act merely authorised

the construction of the railway, without expressly providing for the use of trains, hence the implicit criticism in Wade of the decision

of the House of Lords in the Allen case for failure to have regard to this aspect of the “railway cases” from the nineteenth century. As

the recent edition of the English text on the law of torts relied on by counsel for the plaintiffs – Clerk and Lindsell on Torts (19th Ed.,

2006) – indicates at paras. 20-68 to 20-77, the source of statutory authority as a defence to actions in tort as currently applied in

the United Kingdom is the decision of the House of Lords in the Allen case and the defence applies whether the statute in issue makes

provision for the injured party being compensated or not.

21.13 In any event, whatever approach is adopted by the Courts in the United Kingdom, as counsel for the plaintiffs submitted, the

traditional methodology of construction of Acts of Parliament is subordinated in this jurisdiction to the requirements of the

Constitution.

22. The defence of statutory authority in Irish law

22.1 Legislative authority as a defence to an action in nuisance is explained as follows in McMahon & Binchy on Law of Torts (3rd Ed.,

Butterworths) (at para. 24.93) as follows:

“Legislation may in express terms authorise the commission of what would be a nuisance at common law or it may by

necessary implication do so. Conversely, legislation may specifically preserve the right of action in nuisance, despite

legislative authority for the commission of certain undertakings. In other cases, where legislation authorises conduct

which may constitute a nuisance, the person or authority so acting must not behave in a negligent fashion.”

22.2 McMahon and Binchy refer to s. 55 of the Air Navigation and Transport Act 1936 (as now contained in s. 47 of the Air Navigation

and Transport Act 1988) as an example of express authority to commit a nuisance. That section provides that an action will not lie in

trespass or nuisance by reason only of the flight of aircraft over any property, subject to compliance with certain statutory

requirements. The Allen case is cited as authority for implied authorisation. Nineteenth century Acts authorising gasworks are given as

examples of cases where the action in nuisance is preserved. Indeed, an area of dissent in Manchester Corporation v. Farnworth

between Viscount Dunedin and the other Law Lords was whether the statute in issue there was a “special Act” within the meaning of

the Electric Lighting (Clauses) Act 1899, which expressly provided that nothing in a special Act should exonerate the undertakers from

any action or other proceedings for nuisance in the event of nuisance being caused or permitted by them.

22.3 The Court was referred to a number of decisions of the High Court in which the existence in this jurisdiction of the defence of

statutory authority was recognised: Kelly v. Dublin County Council (Unreported, O’Hanlon J., 21st February, 1986), in which the

speech of Lord Wilberforce in the Allen case was referred to; Clifford v. Drug Treatment Centre Board (Unreported, McCracken J., 7th

November, 1997), another authority in which the dictum of Lord Wilberforce was cited, as well as Viscount Dunedin’s “slightly

differently” put statement of the principle in Manchester Corporation v. Farnworth, which I have already quoted; and Superquinn v.

Bray UDC [1998] 3 I.R. 542. In all of those cases, the traditional common law formulation of the defence was applied without

reference to the Constitution. However, none of those authorities was concerned with the type of legislation at issue in this case,

which authorises a public authority to create the infrastructure for a major public transport facility in a particular location and to

operate the transport facility in that location.

22.4 In the Kelly case, which contains the most incisive analysis of the defence, the complaint of nuisance arose from the use by the

defendant local authority of land behind the plaintiffs’ dwelling house for the purpose of storing vehicles and materials in connection

with extensive road works being carried on in the vicinity. O’Hanlon J. found that the road works were being carried out by the

defendant in exercise of its statutory powers under the Local Government Act 1925 and amending Acts and that the authority

thereby conferred was imperative, not merely permissive, and therefore absolute. Having found that the plaintiffs had established an

actionable nuisance, O’Hanlon J. went on to consider whether it could be shown that there was a defence to the claim by reliance on

the defendant’s statutory powers stating:

“Work carried out in exercise of what has been referred to as an ‘absolute’ statutory power (such as I have held to exist

in the present case) does not give rise to a claim for damages for nuisance resulting therefrom in the absence of

negligence in the manner in which the statutory powers are exercised.”

O’Hanlon J. went on to quote the following passage from Keane on The Law of Local Government in the Republic of Ireland (the

Incorporated Law Society, 1982) (at p. 52):

“Where a statute authorises the doing of a particular act by a local authority, no action will lie at the suit of any person

in respect of that act even if it causes damage, provided it is done without negligence.”

22.5 As a matter of construction, O’Hanlon J. held that, while the defendant had absolute powers in relation to the road maintenance

and construction works referred to in the Act of 1925 and amending Acts, the same statutory authorisation of an absolute character

did not extend to the provision and use of a depot for vehicles and materials. However, O’Hanlon J. acknowledged that there were

statements of law – a decision of the Court of Appeal in England and a statement in Clerk and Lindsell on Torts (15th Ed., 1982) –

which tended to support a contrary view. O’Hanlon J. went on to consider whether the plea of “no negligence” had been established.

He held that it had not been established and that the plaintiffs were entitled to succeed in their claim for damages.

22.6 Doubt has been cast on the applicability of the principle established by the decision of the House of Lords in the Allen case in

Irish law in Hogan and Morgan on Administrative Law in Ireland (3rd Ed., 1998). In particular, doubt has been cast on the application

of “general techniques” of statutory interpretation as established by the English Courts, in the light of the provisions of Articles 40.3

and 43. Following a summary of the effect of the decision of the House of Lords in the Allen case, it is stated (at p. 829):

“It is difficult to believe that an Irish Court would reach the same conclusion were it faced with a case with similar facts.

If the statute plainly extinguished neighbouring land owners’ rights to sue in respect of such nuisance, an Irish court

would probably rule that such provisions amounted to an unconstitutional attack on the plaintiffs’ rights to sue in tort

(which is a species of property right protected by Article 40.3) or to recover compensation in respect of this State

interference with their property rights.

Alternatively, if the statute was silent on the matter, an Irish court, applying the presumption of constitutionality, would

probably rule that as there was no overt legislative intention to act in an unconstitutional fashion, it must be presumed

that the legislator did not intend to deprive the plaintiffs of their right to sue in respect of the nuisance caused by the

operation of the refinery. In short, cases such as [Electricity Supply Board v. Gormley [1985] I.R. 129] show that there

may have to be a complete reappraisal of the principles of law governing the citizen’s right to recover damages or

compensation in respect of administrative decisions which injuriously affect his property rights. It is true that a great

many statutes already confer a right of compensation, but even where no such express right has been granted the effect

of Articles 40.3 and 43 of the Constitution is probably such as to oblige the Courts to imply such a right, or, at the very

least judicially create the right to sue the administrative body concerned in tort”.

22.7 The generality of the first paragraph in that quotation is qualified in the footnotes. The reference to a finding of an

unconstitutional attack is qualified by excluding a situation where it could be said that the interference was justified by considerations

pertaining to the common good. The reference to the plaintiff’s rights to sue in tort is explained on the ground that otherwise the

existing tort law would be “plainly inadequate”, citing Henchy J. in the Hanrahan case.

22.8 Referring to preceding commentary in that text, at pp. 809/810, on the issue of whether it is competent for the Oireachtas to

establish special rules of immunity from suit, it is suggested in McMahon and Binchy (op. cit) (fn. 251, p. 710) that it may be that the

constitutional protection of individual personal rights under Article 40.3 in Ireland would encourage a narrow interpretation of

legislative authorisation.

22.9 The plaintiffs’ reply to the plea of statutory authority raised by the defendants in their defence reflects the commentary in

Hogan and Morgan, both on the issue of statutory construction and entitlement to compensation. I will now consider how the

plaintiffs developed the argument at the hearing.

30. Constitutional dimension as relied on by the plaintiffs

30.1 It was submitted on behalf of the plaintiffs that, unlike the position in England, in this jurisdiction nuisance is not merely a tort at

common law. Protection of citizens from nuisance is part of the personal and property rights of the citizen protected by Article 40.3

and Article 43 of the Constitution. On this point, counsel for the plaintiffs relied on the following passage from the judgment of Henchy

J. in the Hanrahan case (at p. 635):

“The plaintiffs have also invoked the Constitution in support of their argument as to the onus of proof. They contend that

the tort relied on by them in support of their claim is but a reflection of the duty imposed by the State by Article 40.3 of

the Constitution in regard to their personal rights and property rights. The relevant constitutional provisions are:

‘1. The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the

personal rights of the citizen.

2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice

done, vindicate the life, person, good name, and property rights of every citizen.’

I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under

the provisions as to the personal rights and property rights of the plaintiffs as citizens. The particular duty pointed to by

the plaintiffs is the duty to vindicate the personal right to bodily integrity and the property right to their land and

livestock.”

30.2 That passage requires to be put in context. The plaintiffs in the Hanrahan case had argued that, rather than the onus of proof

of nuisance by the defendant being on them, the onus should shift to the defendant to disprove that it was responsible for the

nuisance. The observations of Henchy J. addressed the invocation by the plaintiffs of the Constitution in support of their argument.

Henchy J. went on to make the following general observations on the Court’s competence in providing remedies where constitutional

rights are invoked:

“So far as I am aware, the constitutional provisions relied on have never been used in the courts to shape the form of any

existing tort or to change the normal onus of proof. The implementation of those constitutional rights is primarily a matter

for the State and the courts are entitled to intervene only when there has been a failure to implement or, where the

implementation relied on is plainly inadequate, to effectuate the constitutional guarantee in question. … A person may of

course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see

Meskell v. C.I.E. [1973] I.R. 121); but when he founds his action on an existing tort he is normally confined to the

limitations of the tort. It might be different if it could be shown that the tort in question is basically ineffective to protect

his constitutional right. …

It is also to be noted that the guarantee to respect and defend personal rights given in Article 40.3.1 applies only ‘as far

as practicable’ and the guarantee to vindicate property rights given in Article 40.3.2 refers only to cases of ‘injustice

done’. The guarantees, therefore, are not unqualified or absolute.”

In the Hanrahan case, the plaintiffs’ argument in relation to the onus of proof was rejected by the Supreme Court.

30.3 It was the recognition by Henchy J. that the tort of nuisance is part of the implementation of the State’s duties under Article 40

which was the launching pad for the plaintiffs’ constitutional argument, which was two-pronged.

30.4 First, it was the plaintiffs’ contention that, on the assumption that their constitutionally protected rights are in issue, the Act of

1996 must be construed strictly and, in the absence of an express and unambiguously framed provision, it cannot be construed so as

to empower the defendants to create and to subject and expose the plaintiffs to a noise nuisance caused by the operation of the

Green Line, citing In Re Viscount Securities [1978] 112 ILTR 17 and State (F.P.H. Properties S.A.) v. An Bord Pleanála [1987] I.R. 698

and commentary from Dodd on Statutory Interpretation in Ireland at p. 304. Therefore, so the argument goes, the defendants cannot

rely on the defence of statutory authority or, alternatively, such defence should only be given effect to in a manner which does not

infringe the plaintiffs’ constitutional rights, which is practicable by the erection of an acoustic noise barrier between the rail line and

No. 3.

30.5 The second prong was that the consequence of giving effect to the defence of statutory authority would be that the plaintiffs

would suffer continuing interference with their property rights without payment of compensation, which, it was submitted, on the

authority of the decision of the Supreme Court in ESB v. Gormley [1985] I.R. 129, is not constitutionally permissible. What was in

issue in that case was a challenge to the constitutionality of s. 53(3) of the Electricity (Supply) Act 1927, as amended, which

empowered the ESB to place an electric line across land of a third party subject to giving the owner or occupier of the land, who has

failed to give consent, seven days notice of the intention so to do. The Supreme Court held that such power was a power to impose

a burdensome right over land, but it was a requirement of the common good. The provision was nonetheless invalid having regard to

the provisions of Article 40.3 of the Constitution because it was not necessitated by the principles of social justice nor the exigencies

of the common good. As Finlay C.J. pointed out (at p. 151), the existence of a right to compensation was clearly practicable,

because the ESB did in fact pay compensation in accordance with the guidelines it had agreed with the Irish Farmers’ Association and

another provision of the Act of 1927 dealing with the power of compulsory acquisition of land and of easements and rights over land

was accompanied by an express right to compensation on the part of the land-owner.

30.6 By analogy, counsel for the plaintiffs submitted, to apply the doctrine of statutory authority so as to impose a continuing burden

over the plaintiffs’ property without providing adequate compensation is not necessary by the principles of social justice nor the

exigencies of the common good and is not constitutionally permissible.

31. The submissions of the Attorney General

31.1 As I have stated, the plaintiffs gave notice to the Attorney General under Order 60 of the constitutional issues raised in the

plaintiffs’ reply to para. 24 of the amended defence and, in particular, of their claim for declaratory relief to the effect that, to the

extent that the defendants seek to rely on the defence of statutory authority to deny that they have liability to the plaintiffs in

respect of ongoing noise nuisance, such defence or immunity is inconsistent with and did not survive the enactment of the

Constitution. In summary, the constitutional issues only arise if –

(a) the plaintiffs have established facts which, aside from whatever defence or immunity is open to the defendants by

reason of the fact that the Green Line is being operated in pursuance of statutory authority, would justify a finding that

the operation of the Green Line at the rear of No. 3 constitutes a nuisance at common law vis-à-vis the plaintiffs, and

(b) the defendants have established that they are operating the Green Line within the parameters of the authority

conferred by the Line B Order and without negligence.

As I understand the submissions made on behalf of the Attorney General, it is acknowledged that the plaintiffs are not precluded from

claiming that the powers and obligations of the first defendant under the Acts of 1996 and 2001 and the Line B Order have been

carried out negligently and pursuing an action in tort for negligence. That proposition is also accepted by the defendants. It is

undoubtedly correct.

31.2 Throughout the submissions made on behalf of the Attorney General, there are to be found a number of themes of a very

fundamental nature, which are the foundation of the submissions made by his counsel.

31.3 First, by virtue of Article 15.2 of the Constitution the sole and exclusive power of making laws for the State is vested in the

Oireachtas and the subordinate legislatures which it may create or recognise.

31.4 Secondly, the Act of 1996 and the Act of 2001, being Acts of the Oireachtas, are presumed to be constitutional, unless and until

the contrary is established. Counsel for the Attorney General referred to the judgment of Walsh J. in East Donegal Co-Operative Ltd.

v. Attorney General [1970] I.R. 317.

31.5 Thirdly, the plaintiffs have not challenged the validity of any provision of the Act of 1996 or of the Act of 2001 having regard to

the provisions of the Constitution, nor have they raised any issues as to the constitutionality or fairness of the hearing conducted by

the Inspector prior to the making of the Line B Order, nor have they challenged the rationality or the constitutionality of the Line B

Order itself. The time limit within which such a challenge to the validity of the Line B Order should have been brought was pointed to

and the time limit was justified on the basis that it was necessary in the public interest in securing early delivery of public transport

projects which the Act of 1996 and the orders made thereunder authorise. It was emphasised that, absent any challenge to the

constitutionality of the Acts of 1996 and 2001, the plaintiffs’ claim is limited to one of interpretation. That is the first prong of the

plaintiffs’ argument.

31.6 Fourthly, although submitting that the principle of proportionality, in the sense explained by Costello J. in Heaney v. Ireland

[1994] 3 I.R. 593 (at p. 607), does not arise because there is no constitutional challenge to the Act of 1996, a proposition which I do

not accept as being correct, it was asserted that there is no question of any lack of proportionality attaching to that Act. The Act, it

was submitted, represents a balanced, rational and proportionate measure to secure in a timely and viable fashion the common good

of the citizens of Dublin by providing a fair and effective mechanism for securing, within reason, an appropriate balance between the

rights attaching to private property and the public good. In this context, reference was made to the fact that the Act provides for an

EIS, an extensive process of notice and information, and ultimately a public inquiry into the application for the light railway order. It

was submitted that the public inquiry represents a proportionate and appropriate mechanism for reconciling the potentially conflicting

desires and demands of those who may consider themselves affected by the proposal. Resonating the defendants’ submission, such

an inquiry, it was suggested, is in many respects a more appropriate approach to achieving fairness among all interested parties than

individual legal actions for nuisance. By way of illustration, the point was made that the erection of an acoustic screen in the interest

of one party may block out the view of a neighbour or reflect noise towards a neighbour.

31.7 Counsel for the Attorney General expressed a view on one aspect only of the evidence. That was that no evidence had been

adduced that the operation of the Green Line has effected a permanent diminution in the market value of No. 3, a point also made by

counsel for the defendants, which is the case.

31.8 The Attorney General’s analysis of the plaintiffs’ “constitutional arguments against immunity” are summarised as five propositions

and each is responded to.

31.9 First, the plaintiffs contended that they have suffered an invasion of their constitutional rights under Articles 40.3 and 43.

31.10 The response of counsel for the Attorney General was that the property rights enshrined in the Constitution are not absolute.

The State may, as occasion requires, limit by law the exercise of those rights with a view to reconciling their exercise with the

exigencies of the common good. If the enjoyment of the plaintiffs of their property has been affected by the operation of the Green

Line, applying the proportionality test as formulated in Heaney v. Ireland, such operation does not constitute an infringement of their

constitutional rights, as the infringement is proportionate to the exigencies of the common good in the operation of a light rail system

in the interests of the community at large, including the plaintiffs.

31.11 Secondly, the plaintiffs contended that the courts and the State have a primary obligation to prevent invasions of the citizens’

rights under the Constitution.

31.12 In response, counsel for the Attorney General accepted that it is the primary duty of the courts to prevent invasions of

constitutional rights. However, the means by which such rights are vindicated are not generally by action taken to enforce those

rights per se, but by recourse to established torts. Counsel referred to the following passage from the judgment of Barron J. in

Sweeney v. Duggan [1991] 2 I.R. 274 (at p. 285) in the context of an argument, in reliance on Article 40.3.2, that there was a direct

action for breach of the citizens’ right to bodily integrity:

‘In my view there is nothing in that provision to assist them. It gives them no more than a guarantee of a just law of

negligence, which in the circumstances exists’.”

31.13 Thirdly, it was the plaintiffs’ case that the tort of nuisance exists to protect and vindicate the plaintiffs’ personal right to

property and property rights under Articles 40.3 and 43.

31.14 Counsel for the Attorney General, while generally implicitly acknowledging that proposition, pointed to the non-absolute nature

of the protection afforded by the constitutional guarantees invoked by the plaintiffs. The position advanced by counsel for the

Attorney General was that of the tort of nuisance exists to protect personal and property rights of the citizen, and constitutes a

balance between the rights of property owners inter se and between the rights of property owners and the rights of the public. In

maintaining a just balance between the rights of the individual and those of the community, it had long been a feature of the common

law before 1937 that what was done as a statutory obligation or under statutory authority was not actionable as nuisance, because

it did not have attaching to it the necessary quality of illegality which must attend the commission of any tort. Since 1937 it is

axiomatic that what has been enjoined by presumptively constitutional legislation, enacted in what is presumptively in the common

good, could not, unless the legislation itself was unconstitutional, infringe the rights protected by the law of nuisance. In other words,

as I understand the argument, in the absence of a successful challenge to the constitutionality of the Act of 1996, the Court must

presume that actions authorised by the Acts of 1996 and 2001 and the Green Line Order, if performed without negligence, are lawful.

Indeed counsel for the Attorney General submitted that the Court would be purporting to legislate if it were to give a remedy for

nuisance in this case.

31.15 Fourthly, the plaintiffs asserted that it is not permissible to curtail constitutional rights by implication in a statute or statutory

instrument.

31.16 Counsel for the Attorney General rejected that proposition and submitted that, given the existence of the presumption of

constitutionality, legislation such as the Act of 1996 can curtail a citizen’s right of action by its very existence and requirements. The

decisions in the Viscount Securities case and the F.P.H. Properties S.A. case were distinguished as being concerned with the

construction of ambiguous statutes. Counsel for the Attorney General acknowledged that there may be situations in which it is

necessary to expressly provide for immunity from action in tort, but neither the Act of 1996 nor the Line B Order made thereunder is

such a case, because of the extent to which the powers, functions and obligations of the defendants, the things to be done by them

and the places in which they are to be done and the conditions to be observed in doing them are set out in detail.

31.17 Fifthly, the plaintiffs contended that the defendants are not entitled to rely on the common law immunity in these proceedings

because no statutory provision for payment of compensation to the plaintiffs in respect of noise nuisance exists, either expressly or

by implication, nor has compensation been paid to the plaintiffs.

31.18 Counsel for the Attorney General characterised this part of the plaintiffs’ claim as unstateable, given that there has been no

challenge to either the Act of 1996 or the Line B Order. If there had been such a challenge, it would have failed, it was submitted,

having regard to the decision of the Supreme Court in Dreher v. Irish Land Commissions [1984] ILRM 94 and a decision of the

Supreme Court in ESB v. Gormley, other than that relied on by the plaintiffs. Counsel for the Attorney General pointed to the fact

that, in the latter case, the Supreme Court distinguished between the consequences of two activities of the ESB. The first was the

aspect relied on by the plaintiffs – the effect of placing pylons on Mrs. Gormley’s land, which permanently interfered with her capacity

to use it, which was not permissible without provision for payment of compensation with a mechanism for independent statutory

assessment. The other was the cutting or lopping of trees, shrubs or hedges so as to make and keep the existence of a major

electricity line, the provision for which was held not to be invalid having regard to the Constitution.

31.19 It was in this context that counsel for the Attorney General pointed to the absence of evidence as to a permanent diminution in

the value of No. 3, concluding that what the plaintiffs are seeking, effectively, is compensation by way of general damages. The point

was made that it is difficult to see how a scheme could be put in place to deal with the type of situation which had arisen here,

where the plaintiffs had not anticipated that the operation of the Green Line would adversely affect them until it went into operation.

Aside from that, the position adopted on behalf of the Attorney General was that, in any event, the statutory provisions and the

Green Line Order are proportionate in their balance and are in accordance with the Constitution in representing a minor infringement of

the rights which attach to private property in the interests of the common good and, as such, they do not constitute an unjust

attack on those rights.

31.20 The position adopted on behalf of the Attorney General on the lack of provision for compensation, in my view, highlights the

largely theoretical basis on which the constitutional issues were raised and refuted. While, primarily with the objective of establishing

that the Green Line is not being operated in a negligent fashion, the defendants gave the Court a broad picture of the operation of

the Green Line, it is difficult to see on what basis the Court could, in the context of this case, reach a conclusion whether the

implementation of the Acts of 1996 and 2001 and the operation of the Green Line would only represent a “minor infringement” of the

plaintiffs’ property rights.

32. Conclusions on the legal principles applicable to the issues

32.1 Because of the complexity of this case as pleaded and argued, as the foregoing outline of the background, the statutory

framework, the evidence and the legal principles relied on by the parties in their submissions indicates, there is a real risk, as the

saying goes, that one would “lose sight of the wood for the trees”. Therefore, I think it is crucial to identify and correctly apply the

legal principles which determine whether the plaintiffs are entitled to any of the reliefs they claim.

32.2 The tort of private nuisance affords the type of remedy which the plaintiffs claim in this action to a person in the position of the

plaintiffs, the owner and occupier of property, who establishes that a neighbouring occupier is conducting operations on a

neighbouring property in a manner that constitutes nuisance in accordance with common law principles which are well settled. The

remedy may be an equitable remedy by way of injunction or a common law remedy in the form of an award of damages, or both. The

test as to whether nuisance has been established is the test set out by the Supreme Court in the Hanrahan case.

32.3 As Henchy J. stated in the passage from his judgment in the Hanrahan case quoted earlier, on which the plaintiffs relied in

advancing their argument based on the Constitution, the tort of nuisance may be said to be an implementation of the State’s duties

under the provisions as to personal rights and property rights of citizens guaranteed by the Constitution. It is one of the laws by

which the State defends and vindicates the plaintiffs’ personal rights to bodily integrity and their property rights in accordance with

Article 40.3.

32.4 The law is not immutable. However, as was submitted on behalf of the Attorney General, the sole and exclusive power of making

laws is vested in the Oireachtas under the Constitution. In making laws, the Oireachtas can change the law. What Lord Wilberforce

was saying in the Allen case when he stated that the “right of action is taken away” was that Parliament could change the law. In

this jurisdiction the Oireachtas in changing the law must do so in a manner which is consistent with the Constitution.

32.5 In the case of an Act of the Oireachtas passed after the coming into force of the Constitution, there is a presumption of

constitutionality. In the East Donegal Co-Operative case, Walsh J. referred back to the decision of the Supreme Court in McDonald v.

Bord na gCon [1965] I.R. 217 stating (at p. 340):

“It was pointed out in that case that there was a presumption of constitutionality operating in favour of all such statutes

and it was stated at p. 239 of the report that ‘one practical effect of this presumption is that if in respect of any

provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and other

or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and

a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional

construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the

provision should be held to be repugnant.”

Walsh J. continued at p. 341:

“Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to

construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to

one which would be unconstitutional where they both may appear to be open but it also means that an interpretation

favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or

construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where

the interpretation would result in the substitution of the legislative provision by another provision with a different context,

as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in

accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite

meaning. At the same time, however, the presumption of constitutionality carries with it not only the presumption that

the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas

intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by

an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice.”

32.6 In this case, there is no challenge to the validity of the Act of 1996 or of s. 4 of the Act of 2001 before the Court. Subject to

what was stated earlier in relation to Mr. Searson’s evidence in the context of dealing with the defendants’ collateral challenge

argument, there is no challenge to the public inquiry held prior to the making of the Line B Order or to the making of the Line B Order,

nor could there be at this remove. Accordingly, the Court must start from the position that the relevant provisions of the Act of 1996

and s. 4 of the Act of 2001 are valid having regard to the provisions of the Constitution and that the Line B Order was validly made.

The relevance of the passages from the judgment of Walsh J. quoted above for present purposes is because of the exposition therein

of what has become known as the “double construction” rule, which was relied on by counsel for the plaintiffs in replying to the

Attorney General’s submission. The “double construction” rule has to be borne in mind when it comes to considering what the

defendants are empowered to do by the Act of 1996 and by s. 4 of the Act of 2001 and by the Line B Order and applied if

appropriate.

32.7 In the context of the issues which arise between the plaintiffs and the defendants in this case, the effect of the presumption of

constitutionality is that what the defendants are authorised by the Line B Order to do, when done in compliance with that Order and

the statutory provisions under which it was made, is done lawfully and cannot constitute a civil wrong. When the defendants pleaded

in paragraph 24 of their amended defence that they had constructed and are operating the Green Line in accordance with the terms

of the Line B Order and that such operation cannot as a matter of law give rise to the nuisance complained of by the plaintiffs, what

they are saying is: the law allows us to operate the Green Line as we are operating it, and we are operating it lawfully. If, as a matter

of fact, the defendants are correct, in that they are operating the Green Line in accordance with the terms of the Line B Order, they

are not relying on a common law immunity from suit. They are saying that they are operating in accordance with a law which carries a

presumption of constitutionality.

32.8 It was the plaintiffs who characterised the plea in paragraph 24 of the amended defence as a plea of a “common law immunity”.

The defendants in their rejoinder addressed the “immunity” concept. While that may have been the traditional characterisation of the

stance adopted by a defendant, in my view, when, in this case, the defendants are relying on the authority of an Act of the

Oireachtas and an order made thereunder, that characterisation cannot be correct. It may be that, if the defendants , as a matter of

fact, are operating the Green Line in accordance with the terms of the Line B Order, they may be considered as enjoying something

akin to an immunity, in the sense that the law treats them differently in their operation of a public transport facility than it treats the

ordinary individual in the use of his property. For example, if the operation of the Green Line, in accordance with the Line B Order,

generates noise to a level which would be regarded as otherwise constituting a nuisance and they are authorised by law to do that, it

could be said that they are immune from suit in nuisance when compared to, say, a provider of entertainment who constructed a

Ferris wheel on the Harcourt Street line embankment, which generated noise to the same level, who would be liable in tort to the

property owners and occupiers in the locality.

32.9 Having said that, in my view, the core issue on the defence pleaded by the defendants in paragraph 24 is whether the

defendants are acting lawfully, as they contend. That is a matter of the construction of the Line B Order in the context of the

statutory provisions and the statutory process within which it was made. There is no doubt, as the passage from Dodd referred to by

the plaintiffs’ counsel and the authorities cited therein illustrate, that the courts have held that enactments which interfere with

constitutional rights are to be strictly construed. One example given by Dodd of what strict interpretation means – that, where there

is a genuine doubt or ambiguity as to interpretation, a permitted meaning that is less restrictive of the constitutional right should be

presumed to be the intended one – is an aspect of the “double construction” rule. As Dodd points out, a strict interpretation does not

exclude the possibility of necessary implications, quoting Hamilton P. (as he then was) in Byrne v. Grey [1988] I.R. 31 at p. 38 to the

following effect:

“These powers encroach on the liberty of the citizen and the inviolability of his dwelling as guaranteed by the Constitution

and the courts should construe a statute which authorises such encroachment so that it encroaches on such rights no

more than the statute allows, expressly or by necessary implication…”

32.10 While both the English and Irish authorities cited by the parties illustrate that there have been cases in the past in which the

application of the traditional formulation of the defence of statutory authority required the Court to determine a variety of matters

depending on the context – whether the powers conferred by the statute in issue were imperative rather than permissive; where the

onus of proof lay in relation to the various elements of the claim and the defence; the correct meaning and application of the concept

of “without negligence”; and what constituted “inevitable consequence” – in the context of this case, in my view, such approach is

unnecessary. The first defendant is a statutory body, which, by virtue of s. 4(2) of the Act of 2001 has power to operate the Green

Line in accordance with the terms of the Line B Order. If, as a matter of the proper construction of the Line B Order, the defendants

are entitled to operate the Green Line at the rear line of No. 3 in the manner in which they are operating it, they are operating it in

accordance with law, that is to say, in accordance with an Act of the Oireachtas and the secondary legislation made under it, both of

which enjoy the presumption of constitutionality and that is a complete answer to the plaintiffs’ claim. Alternatively, if the defendants

are not operating the Green Line at that location in accordance with the terms of the Line B Order, the ordinary principles of common

law apply in the defence to the plaintiffs’ claim for nuisance. In either event, in my view, no question arises of the existence of a

common law doctrine of immunity or of consistency or otherwise of such a doctrine with the Constitution.

32.11 Following on from that last observation, there are no circumstances in which the plaintiffs could be entitled to the declaratory

relief which they seek in their reply.

33. Conclusion as to the authority conferred by the Acts and the Line B Order

33.1 The issue as to the authority of the first defendant in this case relates to the operation of the Green Line. On the authority of s.

4(2) of the Act of 2001 the defendants have power to operate the Green Line by virtue of the Line B Order. It must be implicit in the

primary and secondary legislation that the Green Line will not be operated in a negligent manner.

33.2 I have already outlined the provisions of the Line B Order which I consider are material. First, the exercise by the defendants of

the powers conferred by the Line B Order is subject to compliance with the conditions set out in the 11th schedule thereto. The

provisions of the 11th schedule are mandatory. As regards the general condition imposed in the 11th schedule in relation to noise,

condition 28, the defendants are obligated to comply with the undertaking given during the course of the public hearing, by reference

to paragraph 2.1.4 of the Inspector’s Report, to operate the Green Line within the projected noise levels identified in the EIS. Further

by virtue of the first paragraph of condition 28, the first defendant was under a duty, prior to the commencement of the operation of

the Green Line, to agree a schedule of monitoring locations for noise emissions, together with daytime and night-time limits at each

location, with the relevant local authority or, in the default of agreement, to procure a determination from the Minister. The first

defendant decided not to comply with that obligation. In my view, the first defendant is in breach of condition 28.

33.3 Although it is not expressly stated in the first paragraph of condition 28, it must be implicit that, following agreement on, or

determination of, the relevant locations and the daytime and night-time limits at each location, the Green Line would be operated in

compliance with those limits in the future. Otherwise, the exercise envisaged in the first paragraph of condition 28 would be a

meaningless exercise.

33.4 As regards the interface between the second paragraph of condition 28 and the first paragraph, in my view, the clear intention

from the two paragraphs is that the thresholds created by the EIS predictions would not be exceeded in the formulation of the

daytime and night-time limits. Apart from that, the daytime and night-time limits would be a matter for agreement, or determination,

as the case may be, and, in my view, it is reasonable to assume that the intention of the Minister was that they could have been

fixed below the EIS thresholds.

33.5 The implications of the foregoing findings are that the first defendant has not established that it has been operating the Green

Line strictly in accordance with the terms of the Line B Order since it was commissioned in 2004. Therefore, it is not open to the first

defendant to say that it is operating the Green Line strictly in accordance with the statutory authority conferred by the Act of 2001

and that is a complete answer to the plaintiffs’ claim. Therefore, it is necessary to consider whether the defendants are correct in

their contention that the plaintiffs have not established a case in nuisance at common law.

34. Nuisance established?

34.1 The kernel of the plaintiffs’ case in nuisance is that the evidence as to the operation of the Green Line at the rear of No. 3

clearly demonstrates that the plaintiffs are being subjected by such operation to serious noise nuisance, including serious sleep

disturbance. There is no doubt on the evidence that the plaintiffs subjectively perceive that the operation of the Green Line is

interfering with the ordinary comfort and enjoyment of their home. However, as the authorities which have been considered earlier

indicate, the existence of nuisance is established by applying an objective standard. The nub of the matter is whether the evidence

establishes that the plaintiffs’ complaints about the level of noise being generated and their requirement that an acoustic barrier be

installed to mitigate noise is objectively justified. To adopt the words of Henchy J., do their complaints and requirements measure up

to what “would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances”?

34.2 Even though the Line B Order has not been strictly complied with in the operation of the Green Line by the defendants since

2004, because of non-compliance with condition 28, the process which led to the making of the Line B Order in accordance with the

Act of 1996, and its outcome, in my view, is a wholly reliable indicator as to what the ordinary person whose requirements are

objectively reasonable would expect in terms of noise control and noise mitigation in the operation of the Green Line. Every person

who was likely to be affected by the operation of the Green Line had a statutory entitlement to make submissions to the Minister and

to attend at the public inquiry conducted pursuant to the Act of 1996 and to make submissions, inter alia, on the proposals in the EIS

in relation to noise and to noise mitigation. The question of noise was addressed at the public hearings and in the Inspector’s report.

He took cognisance of the views of the members of the public who appeared and made representations. On the basis that the

projected noise levels identified in the EIS would be observed, and subject to compliance with conditions in relation to specific areas,

and the general condition in relation to monitoring and fixing daytime and night-time limits, the Inspector found that the noise aspects

of the project appeared to be satisfactory. There has been no challenge to that finding. Therefore, I consider that the Court is

entitled to treat the Inspector’s finding as the starting point of identifying the yardstick to be applied in determining the objective

test. But for the fact that it has not been fully implemented, as conditioned into the Line B Order by the first defendant, it would be

conclusive.

34.3 I do not consider it necessary to reiterate my observations and findings on the evidence, save to say that I have come to the

conclusion that the most significant finding of fact, on the basis of Mr. Taylor’s evidence and Mr. Searson’s acknowledgement, is that

the noise levels being generated by the operation of the Green Line at the rear of No. 3 are within the parameters of the EIS

predictions. However, in the light of what I consider to be the proper construction of the Line B Order and, in particular, condition 28,

it is necessary to consider what daytime and night-time limits would have been agreed to, or determined, if the first defendant had

complied with condition 28 prior to the commencement of the operation of the Green Line in 2004 and to consider whether the

operation of the Green Line are the rear of No. 3 would have come within those limits.

34.4 It is clear from the evidence that best practice in relation to the assessment of environmental noise has evolved since the EIS in

relation to the Green Line was prepared in accordance with the Act of 1996. It is also clear that the first defendant has had the NRA

guidelines standard imposed on it in the interim and more recently has adopted it, as the evidence of Ms. Lillis established.

34.5 That leads to consideration of what, as a matter of probability, daytime and night-time limits would have been agreed, or

determined, in accordance with condition 28, had it been complied with. Three and a half years elapsed between the making of the

Line B Order and the initial commissioning of the Green Line. While the point is academic having regard to the facts, and, for that

reason, I consider it inappropriate to express a definitive view on the point, it could be argued, by analogy to the dictum of Viscount

Dunedin in Manchester Corporation v. Farnworth, that, as a matter of law, in fixing the limits, then current best practice should, and

would, have been applied. On the basis of the evidence, I think it reasonable to assume that the standard set out in the NRA

guidelines, which were in gestation in the period in question, represented the then current best practice.

34.6 However, even if the daytime and night-time limits had been fixed as required by condition 28 and if the standard set in the NRA

guidelines had been applied in fixing them, I am satisfied on the basis of the evidence of Mr. Taylor and of Ms. Lillis that the noise

generated by the Green Line at the rear of No. 3 would not have exceeded those limits.

34.7 I have come to the conclusion on the evidence that, if daytime and night-time limits had been agreed or determined as required

by condition 28 in early 2004, it is highly improbable that the limits would have been fixed by reference to either the WHO guidelines

or the BS Code. On that factual basis, non-compliance with the elements of those guidelines on which Mr. Searson relied as

evidencing that the passage of the trams at the rear of No. 3 constituted a nuisance, cannot be regarded as a breach of condition

28, or, as is elaborated on below, as constituting an actionable nuisance.

34.8 In summary, I hold that by operating the Green Line at the rear of No. 3 within the noise levels predicted in the EIS, which are

conditioned into the Line B Order in the second paragraph of paragraph 28, and, as it happens, by operating within the more rigorous

daytime and night-time levels more recently imposed on, and adopted by, the first defendant, the Green Line is being operated

without infringing the comfortable and healthy enjoyment of No. 3 that would be expected by an ordinary person whose requirements

are objectively reasonable in the particular circumstances which prevail. Therefore, I am satisfied that the plaintiffs have not

established nuisance.

34.9 In this case, the first defendant did not comply with the first paragraph of condition 28, as it should have done. That became

obvious as a result of discovery in this case. If it had complied with condition 28 and if, which I have found is probable, the daytime

and night-time limits set would have accommodated the level of noise being generated at the rear of No. 3, as I have made clear,

that would have been the end of the matter. The defendants would be operating the Green Line in accordance with the law and there

could be no question of the perpetration of a civil wrong on the plaintiffs. Where, in pursuance of a statutory process of the type

formerly provided for in the Act of 1996, and now provided for in the Act of 2001, standards are established for permitted

environmental effects and impacts of the construction and operation of a major public infrastructure, such as a public transport

system, those are the standards by reference to which the statutory undertaker is authorised and required to act. In such

circumstances, it is not open to an occupier of property in the vicinity of the infrastructure to contend that some other standard

should be applied. In this case, in my view, as a matter of law, it was not open to the plaintiffs to contend that the Green Line must

be operated in accordance with the WHO guidelines or the BS Code requirements so as to avoid committing a nuisance.

34.10 Apart from that factor, which is the crucial factor, it is difficult to conclude that the WHO “inside bedrooms” guideline could be

regarded as an appropriate standard in the context of making provision for a system of public transport in an urban area. While an

issue arises as to whether one is comparing like with like in measuring Mr. Searson’s test results against the WHO guidelines, the

guideline in relation to the “inside bedrooms” threshold being based on an eight hour LAeq, some of the indoor measurements taken by

Mr. Searson in the master bedroom exceeded or were just below the guideline threshold of 30 dBa, where the measurement was taken

when there was no tram passing. For example, in the case of test 35 and test 38, LAeq of 31.8 dBa and 32.3 dBa respectively were

recorded by Mr. Searson, in the bedroom, in each case with the window ajar, in the absence of a tram pass. That gives credence to

Mr. Taylor’s opinion that compliance with the WHO guidelines would render the development of a public transport system in a

residential area impossible.

34.11 On the basis of the totality of the evidence, and as a matter of law, I am satisfied that the plaintiffs have not made out the

case in nuisance which they set out to establish.

35. Decision and order

35.1 As the plaintiffs have not established nuisance at common law their claim must be dismissed. There will be an order to that

effect.