THE SUPREME COURT
[Appeal No: 200/2008]
Denham C.J.
Clarke J.
Dunne J.In the Matter of the Planning & Development Act, 2000 (as amended)
Robert Lanigan, Deirdre Lanigan and Benghazi Limited t/a Tullamaine Castle Stud
Plaintiffs/Respondents
and
Michael Barry, Brenda Barry and Motor Speedway Limited t/a Tipperary Raceway
Defendants/Appellants
and
South Tipperary County Council
Notice Party
Judgment of Mr. Justice Clarke delivered the 27th July, 2016.
1. Introduction
1.1 The underlying dispute between the parties to this litigation stems from a complaint which principally focuses on noise. The defendants/appellants (“Tipperary Raceway”) run a motor racing circuit. The plaintiffs/respondents (“Tullamaine”) run a nearby equine stud farm. Tullamaine essentially alleges that an increase in the type of activity being carried out by Tipperary Raceway, particularly over relatively recent years, has had a significant effect on its stud business.
1.2 In general terms the claim brought by Tullamaine was based in part on a contention that Tipperary Raceway was acting in breach of the planning laws. In that context there was an allegation that there had been a material change of use of the motor racing circuit by reason of a significant intensification of use. In addition, Tullamaine contended that the manner in which the motor racing circuit was operated amounted to a private law nuisance.
1.3 The High Court (Charleton J.) gave judgment in favour of Tullamaine (Lanigan & ors v Barry & ors [2008] IEHC 29). As appears from that judgment the claim succeeded both in respect of the planning and nuisance aspects of the case. An injunction, which has the effect of significantly restricting the operation of the motor racing circuit, was imposed.
1.4 Tipperary Raceway has appealed against that judgment to this Court. While a number of specific issues require to be decided on this appeal it is, I think, fair to say that the central overall question is as to whether the scope of the injunction imposed by the High Court was, for a variety of reasons, excessive. It should be recorded in passing that the notice party did not participate in this appeal.
1.5 Before going on to consider the issues arising I think it is appropriate that I should record that the hearing of this appeal was facilitated by the first use in this Court of a new system known as eCourt. That system involves all of the documentation for the appeal being placed on tablets, one of which is made available to each of the members of the Court with additional tablets being provided to the legal teams representing the parties. The software facilitates ease of access to any particular document which may be under discussion at a specific point in the hearing. While, doubtless, as will always be the case with a new experiment, improvements can and will be made, I should record my own view that the experiment must be regarded as a success. In addition the co-operation of the legal teams and court staff with those providing the service is very much to be welcomed.
1.6 However, in order to understand the specific issues which arise on this appeal, it is necessary to say a little about the case which was ultimately made on behalf of Tipperary Raceway at the oral hearing.
2. The case made by Tipperary Raceway
2.1 There may have been some legitimate debate about the precise scope of the appeal at varying stages in the process (for example the notice of appeal underwent radical surgery) but it seems to me to be absolutely clear that any such doubt was removed by the positions adopted by both counsel at the oral hearing. It should first be noted that counsel for Tipperary Raceway fully accepted the limitations which the jurisprudence of this Court, in cases from Hay v O’Grady [1992] 1 I.R. 210 onwards, imposes on appeals which raise questions of fact. In that context counsel accepted that this Court was bound to accept the findings of fact of the trial judge in this case. There was no suggestion that any of those findings were capable of being questioned within the limited scope of appeal in relation to the facts which the jurisprudence in question permits.
2.2 The focus of the appeal was, therefore, on legal issues. It is necessary, at least to a significant extent, to consider the appeal separately in respect of the two limbs of the case made by Tullamaine.
2.3 So far as the planning aspect of the case is concerned the principal focus of the argument put forward on behalf of Tipperary Raceway was to suggest that the trial judge was incorrect to disregard the seven year limitation period which is to be found in the Planning and Development Act, 2000 (as amended) (“the 2000 Act”). Rather, it was argued, the trial judge should have conducted an exercise similar to that which occurred in Cork County Council & ors v. Slattery Pre-Cast Concrete Limited & ors [2008] IEHC 291 (“Slattery”) and thus should have determined whether any breach of planning legislation could be said either to pre-date or post-date the limitation period. In substance it was argued that the type of breach of the 2000 Act contended for on behalf of Tullamaine was a material change of use by reason of intensification of use. It was said that, contrary to the view expressed by the trial judge, such a material change of use was subject to a limitation period in the same way as any other development. On that basis it was said that any material change of use which pre-dated a time seven years prior to the commencement of these proceedings was no longer capable of enforcement under the 2000 Act. It followed, it was argued, that the failure of the trial judge to attempt to segregate any material change of use into changes which occurred more than seven years prior to the commencement of the proceedings and changes which occurred thereafter led the trial judge wrongly to conclude that all material changes of use were not only in breach of the 2000 Act but also remained capable of enforcement. Therefore, the first issue which arose was as to the proper application of the planning limitation period in a case such as this involving, as it does, an allegation of material change of use by reason of intensification of use.
2.4 However, a second, and subsidiary, planning issue arose from the reliance placed by Tullamaine on the provisions of s.160(6)(b) of the 2000 Act which excludes from the relevant limitation period any claim which is brought seeking to enforce a condition in a planning permission. The backdrop to that issue in the context of these proceedings was that there were certain references in the documents filed in the context of the original application for planning permission which made reference to the scale and timing of the operation of the motor racing circuit then contemplated. Tullamaine argued that, on a proper construction of the planning permission as a whole, it should be held that there were conditions thereby imposed on Tipperary Raceway as to the maximum scale and timing of its operations. Tipperary Raceway argued, to the contrary, that no specific condition concerning the scale or timing of operations had been imposed. While it was accepted that the content of the documents in question, to which it will be necessary to refer in due course, might legitimately be taken into account in identifying the broad scope of the scale of use for which permission was granted (by reference to which the question of whether there had been a sufficient intensification to amount to a material change of use could be judged), it was argued that, on a proper construction, no relevant condition as such had been imposed. Thus there was a clear issue between the parties as to whether, on a proper construction of the planning permission concerned, it could be said that there was a condition relating to scale and timing of operation.
2.5 In fairness to counsel on both sides it should be acknowledged that there was a measure of agreement on what would flow from a decision by this Court on that contested question of whether there was or was not such a condition to be found in the planning permission. Counsel for Tipperary Raceway largely accepted that if, contrary to his submission, it was proper to regard the permission as containing a condition concerning scale and timing of operation, then s.160(6)(b) might allow such a condition to continue to be enforced notwithstanding that there may have been a breach of that ongoing condition for more than seven years.
2.6 Likewise, counsel for Tullamaine accepted that if, contrary to his submission, it were not appropriate to construe the planning permission as containing a condition of the type asserted, then any increase or intensification of the use of the motor racing circuit could well need to be assessed generally for the purposes of ascertaining whether any element of the planning claim was statute barred.
2.7 Thus, as the debate evolved, it was clear that the key issue between the parties on the planning aspect of the case was as to whether, on a proper construction, the planning permission did or did not contain a condition as to matters of scale and timing of operation. I propose shortly to turn to that question.
2.8 In respect of the claim in nuisance, counsel for Tipperary Raceway accepted that, having regard to the findings of fact of the trial judge, it was not open to him to seek to argue that no finding of nuisance was permissible. However, counsel noted that the injunction granted by the High Court was in terms which very much followed the description found in the original planning application which, by the time of these proceedings, was upwards of 30 years old.
2.9 The focus of counsel’s argument was that, in identifying the appropriate injunctive regime to put in place as a result of a finding of nuisance, it was inappropriate for the Court to have regard almost exclusively to an elderly planning application or permission but rather it was said that the Court should have considered what form of injunctive relief was appropriate today to deal with the nuisance established. Counsel noted that no distinction was made by the trial judge between the injunction which was required to be put in place to meet respectively the planning and nuisance sides of the claim. This was argued to be an error in that, it was said, so far as the nuisance side of the claim was concerned, the Court should have independently looked at what was required to deal with the nuisance rather than to adopt measures which might have been appropriate to deal with the planning aspect of the case.
2.10 As counsel pointed out, that distinction may not have appeared to have been particularly important in the light of the view which the trial judge had taken to the effect that he was entitled to enforce the planning permission in a manner that did not require any adjustment or alteration by virtue of the planning limitations period. In one sense, provided that a particular form of injunction was justified under either the planning or nuisance heading it did not make any great practical difference as to which heading justified any particular aspect of the injunction concerned. However, counsel for Tipperary Raceway argued that, in the event that he succeeded on the planning aspect of his appeal and thus established that some (or perhaps all) of the injunction granted under that heading could no longer be justified on planning grounds then, it was said, the type of injunction which was appropriate to deal with nuisance came into much greater focus in circumstances where the nuisance claim remained the only or principal legitimate basis for some or all of the injunction.
2.11 Put simply, an excessive injunction granted to deal with nuisance might not make any practical difference if the injunction as actually granted was, in any event, justified on planning grounds. But the same excessive injunction granted on nuisance grounds might make a significant difference if it were no longer considered permissible to grant an injunction of the type in question for planning reasons.
2.12 Against that background it is clear that the first issue which logically calls for determination relates to the proper interpretation of the original planning permission with particular reference to whether it can be said that, on its proper construction, it contains a condition relating to matters such as scale and timing of use. I, therefore, turn to that question.
3. The Interpretation of the Planning Permission
3.1 The starting point has to be a consideration of the grant of planning permission itself which occurred in the earlier part of 1981. The permission was subject to a number of conditions but none of them expressly relate either to the frequency with which racing or practise was to take place on the motor racing circuit or issues directly connected with noise. There are conditions concerning access roads, toilets, parking and an absolute restriction on shops, stalls or vending operations. However, the only conditions which could have any potential relevance to the issues which arise in this case are condition 1, which is in the usual form requiring that the development be carried out in accordance “with the applicant’s submitted drawings and outline specifications”, unless modified by other conditions, and condition 7, which required the applicant “to take whatever steps are deemed necessary by the Planning Authority” to remedy any situation which gave rise to “justifiable complaints by local residents”.
3.2 For understandable reasons there was little emphasis on the latter condition. It is, at a minimum, open to the comment that it may be far too vague to be capable of realistic enforcement. In any event no such requirements were made by the Planning Authority so that, on any view, it could not be said that there has been a failure to comply with the condition concerned.
3.3 The principal focus of the argument put forward on behalf of Tullamaine centred on the standard condition concerning drawings and specifications.
3.4 That in turn requires one to look back to the application for outline planning permission approval which was submitted by a John McHugh on the 13th November, 1980. The details set out are relatively brief. The track is described as being one on which it was proposed to race “Hot-Rod” cars with the relevant dimensions of the proposed track being set out. So far as the scale and timing of operation is concerned it is necessary to quote points 3 and 4 in full. They provide as follows:
3.5 As appears from those provisions what seems to have been contemplated at the time was a seasonal operation, April to October, with weekend races and the possibility of weekday practise sessions. The race meetings were estimated to be likely to last about three hours.
3.6 The real question is as to whether it is appropriate to interpret those provisions as amounting to part of the “outline specifications” so that they might be said to have been the subject of the condition to comply with such specifications already referred to. The details cited are clearly not “drawings” as such.
3.7 In the context of that issue it is important, in my view, to distinguish between a general description of the scale of operation of a facility which might be anticipated, on the one hand, and a specific condition limiting the maximum scale of the operation concerned, on the other. The distinction may be easy to define in some cases but there may well be grey areas in other cases. For example, a retail unit might be described as being likely to attract a certain level of footfall. That description might, indeed, be relevant for planning purposes for it would undoubtedly affect traffic and potentially the amenity of other property occupiers in the vicinity. But such a description would be unlikely to be taken as imposing an absolute limit on the amount of customers which the retail unit would be permitted to entertain on any given day. Likewise, the documents filed in respect of a planning application might suggest that a retail unit was designed for daytime use. That might indicate the sort of use which might implicitly be approved by the granting of planning permission for the unit concerned. It is well settled that, in considering the use which may be regarded as being permitted, it is possible to look at the development for which permission has been granted together with any documents submitted in the context of the relevant planning application.
3.8 In such a case the Planning Authority might choose to impose a specific condition concerning hours of opening. If it did so choose then the matter would be clear and it would be a breach of the relevant condition for the retail unit to open outside the hours as specified. However, even if no such specified opening hours were included as conditions attached to the planning permission, it would always be open to a court to consider whether opening significantly outside the parameters which were contemplated by the planning application itself might amount, in all the circumstances, to a sufficient intensification of use (over the use impliedly authorised by the permission) so as to justify a finding of a material change. However, in that latter case it would be necessary to take into account a range of factors, including the degree of difference from the use which it might be inferred had been permitted by the planning permission, so as to assess whether any variation from that contemplated use could be said to involve a material change of use.
3.9 Thus, at the other end of the spectrum, descriptions of the likely scale and timing of operations may simply be matters which go to the information on which a planning authority must make its decision and may inform the broad level of use for which it might be inferred that permission has been granted. In such a case a deviation would not, in and of itself, be a breach but rather the relevant information may provide the benchmark against which a decision as to the permitted type and scale of use might be made thus in turn informing any decision as to whether current use might be said to be materially different to a sufficient extent and thus involve an unauthorised development.
3.10 The distinction is between a specific requirement which must be obeyed more or less to the letter, on the one hand, and a general indication which may inform the baseline use by reference to which the materiality of an intensification of use may be judged. An assessment as to which of those two categories any particular description may fall into is one involving the proper construction of the planning permission as a whole including how that planning permission should be construed in the light of the documents filed by the applicant insofar as it can be said that those documents have been incorporated by reference into the permission itself.
3.11 The principles applicable to the construction of a planning permission are, of course, well settled and were described by McCarthy J. in the oft-quoted passage from In re. X.J.S. Investments Ltd [1986] IR 750 as requiring the Court to construe planning documents not as complex legal documents drafted by lawyers but rather in the way in which ordinary and reasonably informed persons might understand them. It might, in passing, be appropriate to note that this was, perhaps, an early example of the move towards what has been described as the “text in context” method of construction appropriate to the determination of the meaning of all documents potentially affecting legal rights and obligations. This approach has now become well established. The “text in context” approach requires the Court to consider the text used in the context of the circumstances in which the document concerned was produced including the nature of the document itself.
3.12 Against the background of that general approach it is necessary to consider the proper construction of the permission in this case.
4. Application to this Planning Permission
4.1 The starting point has to be to note that it would have been easy for the Planning Authority concerned, if it had wished so to do, to impose specific terms as to hours, scale and timing of use. This the Planning Authority did not do. While that is not, necessarily and in and of itself, and end to the matter, it nonetheless is, in my view, a significant factor to be taken into account. To interpret a general clause such as condition 1 (which imposes an obligation to carry out the development in accordance with the drawings and specifications submitted) in a way which imposes very specific obligations in the absence of a specific condition does, in my view, require that what might reasonably be considered to be the drawings and specifications be clearly of a nature designed to identify specific and precisely enforceable parameters for the development (including its use).
4.2 Obviously physical plans easily meet that test. A standard clause such as condition 1 in this case clearly requires that any physical building permitted is carried out in substantial conformity with the plans submitted.
4.3 But the information supplied by the applicant for the permission in this case was not at all specific so far as the scope of use was concerned. It is said that it “would be intended” to operate the track “on Saturday or Sunday evenings”. Should that be taken to mean on one or other of those days or possibly both. There is then a vague reference to the possibility of practise during weekday evenings. No limitation on how often that practise might take place is to be found. Does that mean that there could be practise on five weekday evenings if required. Likewise while there is a general indication that race meetings would take approximately three hours, there is no indication of how long practise might take. While April to October is mentioned that reference does not seem to me to amount to a clear representation that no use will be made outside that period.
4.4 In those circumstances I am not satisfied that it is appropriate to construe the two paragraphs cited as containing the sort of defined commitment to specific limits which could be taken to have been incorporated into a planning permission by virtue of a general condition such as the one which was imposed in this case. That is not to say that there might not be occasions where the language contained in a document submitted might properly be construed as amounting to a clear commitment that particular limits of one sort or another would be complied with. In such a case it might be possible to construe a general condition such as condition 1 as importing that commitment into the permission itself by means of a condition. But for that to be the case it seems to me that it would be necessary that it would be appropriate to construe the documents submitted by the applicant for planning permission as giving a clear and specific commitment rather than a general indication concerning the scale and timing of operation. I am not satisfied that the documents in this case can be so construed.
4.5 In the light of that analysis and in the light of the absence of a specific condition in that regard, I am not satisfied that the planning permission in this case contains a specific condition concerning scale and timing of operation. It does, however, seem to me that the document which I have cited can be used for the purposes of assessing the broad level of operation for which permission was granted and thus for assessing the baseline by reference to which the materiality of any intensification of use can be judged. There can be little doubt but that the use now being made of the motor racing circuit goes, as the trial judge found, a very great deal beyond that contemplated at the time and referenced in the planning application. I have no doubt, therefore, that the trial judge was correct to conclude that the current use is so significantly intensified over the broad level of use contemplated at the time and in respect of which planning permission was granted (by reference to the planning documents to which reference has been made) that it can be said that there has been a highly material change in use and thus, in the absence of a planning permission in that regard, an unauthorised development. However, that use is not, for the reasons which I have also sought to analyse, a breach of a specific condition contained in the 1981 planning permission. It is next necessary to turn to the legal consequences of both of those findings.
5. The Legal Consequences
5.1 As noted earlier in this judgment the limitation period provided in the 2000 Act does not apply in the case of breach of a condition attached to a planning permission. However, for the reasons which I have sought to analyse, I am not satisfied that there was any condition in the planning permission in this case concerning the scale and timing of the operation of the motor racing circuit. It follows that the exclusion of the enforcement of planning conditions from the scope of the limitation period can have no relevance in this case.
5.2 In that context it is appropriate to refer to a letter, jointly written by the solicitors for both sides, which was received by the Court on the day before this judgment was listed for delivery. The letter recorded that counsel on both sides wished the Court “to note the fact that Section 106(6)(b) [sic] of the Planning and Development Act 2000 was enacted on 11 March 2002. There was no similar provision in the earlier Section 27 procedure under the Local Government (Planning and Development) Act 1963”. If I were of the view that the proper construction of the planning permission in this case contained a condition such that s.160(6)(b) might potentially be engaged then it would have been necessary to consider what effect the timing of the enactment of that section might have had. That question of timing might arguably be important in respect of a condition in a planning permission which was in place prior to the date of enactment and in respect of which it might be said that there was already an established use which was in breach of the relevant condition which was in place for longer than the limitation period. However, given my view that there was no relevant condition present in the planning permission in this case, as properly construed, that interesting question does not arise. I would thank the parties’ representatives for bringing this matter of the Court’s attention.
5.3 In any event, it is clear, again for the reasons which I have sought to analyse, that there has been a material change of use between the 1980s and the time when these proceedings came to be heard. The problem is that the trial judge did not consider that it was necessary to assess whether some or all of that material change of use had occurred outside the limitation period.
5.4 The trial judge’s reasoning in taking that course of action stemmed from the fact that, as he stated, there is nothing in the 2000 Act which renders an unauthorised use lawful by reason of lapse of time. That proposition is correct so far as it goes. But it fails to have regard to the fact that there is a real distinction between the question of whether something may be lawful or not, on the one hand, and whether there remains the possibility of enforcing the breach of the law concerned, on the other. No statute of limitations absolves a wrongdoer from wrongdoing. But all statutes of limitations create the possibility that wrongdoing may no longer be capable of litigation. Similar comments could be made about any other form of legal doctrine which has the potential to prevent litigation of a particular type from being maintained. The doctrine of laches in the context of equitable remedies comes to mind. Furthermore circumstances such as estoppel or the rule in Henderson v. Henderson [1843] 3 Hare 100, which can potentially prevent particular types of litigation being progressed, do not, of themselves, absolve the wrongdoing which might be the subject of the litigation. They do, however, prevent an aggrieved party from being able to bring the proceedings at all in the sort of circumstances contemplated by the respective rules.
5.5 A material change of use is, under the 2000 Act, every bit as much a development as a physical construction. A material change of use which results from a sufficient intensification of a permitted or existing use is just the same as any other type of change of use. It can properly be regarded, in an appropriate case and if sufficiently significant, as development requiring permission. In the absence of permission it can amount to an unauthorised development. The limitation period applies to any unauthorised development and I can see no reason for altering the views which I expressed in Slattery concerning the application of the limitation period to a case involving a contention of material change of use by reason of intensification. Likewise I see no reason to depart from the views I expressed in that same case as to the proper approach to be adopted in cases where there is a gradual intensification of use over time. In substance what is required is that the Court assess, as of the relevant date for the purposes of the limitation period, what development (in the shape of a material change of use) has taken place as of that time. That development, being the intensification which had already occurred as of the relevant date for the purposes of the limitation period, can no longer be the subject of enforcement. But any further intensification which is sufficient to ground a proper finding of a further material change of use within the limitation period, clearly can.
5.6 Unfortunately no such exercise was carried out in this case because of the view which the trial judge took as to the inapplicability of the limitation period. It is not, in those circumstances, either possible or appropriate for this Court to attempt to conduct an exercise of seeking to identify just how much of the current unauthorised use was in fact in place prior to the limitation period and thus is no longer capable of enforcement. There certainly was evidence from which it might reasonably be held that at least some of the current use is a sufficient intensification not only over the use impliedly permitted by the planning permission but also over the use which was established as of the date when the limitation period commenced, so as to justify a finding that there has been a further intensification of use within the limitation period such as, in turn, to justify a finding of development in the shape of a material change of use again within that limitation period. I have little doubt, therefore, that a sustainable finding could be made on the evidence that there has been some post-limitation period material change of use. The problem for this Court is that, in the absence of clear findings of fact by the trial judge on the evidence, it is not possible to say with any sufficient level of precision just what level of use can be described as post-limitation period material change of use.
5.7 For those reasons it seems to me that the trial judge was incorrect to grant injunctions under the planning heading by reference to the original planning permission of 1981. Rather the trial judge should have assessed the extent to which the current use amounts to a material change of use above and beyond the use which had been established at the time when the limitation period commenced and should have crafted an injunction to restrain that additional, and thus enforceable, change of use. What the Court should do in the light of that finding is a matter to which it will be necessary to return after addressing the question of nuisance to which I now turn.
6 The Claim in Nuisance
6.1 It should be recalled that Slattery also involved, in addition to the planning claim, a claim in nuisance brought by local residents. In circumstances where nuisance is established I see no reason to depart from the views which are expressed in that case to the effect that the Court should adopt whatever remedy appears just in all the circumstances of the case having regard, in particular, to the need to protect those who suffer by virtue of nuisance to whatever extent might be considered just and reasonable.
6.2 I am also satisfied, and I did not really understand counsel for Tipperary Raceway to argue otherwise, that the decision of the trial judge to find that nuisance was established in this case was sustainable on the evidence and is not a finding with which this Court can or should interfere.
6.3 The Court is, therefore, faced with the situation where there is an established nuisance and where the question which arises on this appeal is as to whether the form of injunctive relief ultimately granted by the trial judge is the appropriate remedy to put in place in the context of that established nuisance. As already noted the trial judge did not impose any different injunctive terms as and between the planning and nuisance aspects of the case. For the reasons already identified I am not satisfied that the injunction put in place to deal with the planning aspect of the case can be sustained. However, I am in agreement with the submission made by counsel for Tipperary Raceway that the injunction put in place on the nuisance side is simply a reproduction of the injunction put in place on the planning side and is principally focused on bringing the situation back to that which might be said to have been authorised by the original 1981 planning permission. It follows that it is clear that the trial judge gave no separate consideration to the extent of the injunctive relief which was required to do justice in all the circumstances arising from the undoubtedly established nuisance.
6.4 There was a great deal of evidence before the trial court as to what might be done to ameliorate any nuisance established. However, because the trial judge formulated the injunctive relief largely by reference to the 1981 planning application and permission, there are few findings in relation to the facts which might inform a view as to the appropriate injunction to grant solely in respect of nuisance.
6.5 While the findings of fact sufficient to establish that there is a nuisance cannot, therefore, be disturbed, there are, in my view, insufficient findings of fact to allow this Court to craft an appropriate form of injunction designed to do justice in all the circumstances pertaining to the nuisance claim. That is not to say that some form of injunction will not, almost inevitably, follow in order to deal with the established nuisance. However, this Court does not have sufficient definitive findings of fact to enable a decision to be made as to the precise form in which any such injunction should be imposed.
6.6 For those reasons I am satisfied that the trial judge was in error in granting an injunction, in respect of the undoubted nuisance which was established in this case, whose terms were defined largely by reference to a 1981 planning application and permission rather than by reference to what might now reasonably and justly be required to ameliorate the nuisance which is currently occurring.
6.7 In that context I agree with counsel for Tullamaine that the fact that there may be a planning permission for an activity does not permit the commission of a civil wrong. It follows, a fortiori, that the fact that it may no longer be possible to enforce a particular breach of the planning laws, on planning limitation grounds, does not, necessarily and in and of itself, mean that an injunction, which would have the same effect as that now impermissible enforcement, may not be justified as an appropriate measure designed to ameliorate a nuisance.
6.8 Just as the appropriate injunction for the amelioration of a nuisance may not be as extensive, either in general or in some particular respect, as an injunction designed to enforce a specific aspect of the planning code, equally the injunctive relief which may be justified for nuisance purposes may, again either generally or in a specific respect, go further than that which might be justified on planning grounds. The two jurisdictions are not coextensive. It follows that the relief which may be appropriate under both headings may not necessarily be the same.
6.9 But for like reasons to those which I have analysed in the context of the planning aspect of this case, I am not satisfied that this Court is in a position to craft an appropriate injunction to deal with the nuisance aspects of the case any more than it is in a like position in the context of the planning aspects of the case.
7 Consequences
7.1 For those reasons I am satisfied that, under both headings, there was more than ample evidence before the trial judge to justify a finding of a breach of the planning laws (including breaches which post-dated the limitation period) and also a finding of a continuing nuisance. It inevitably follows that some injunction ought to have been granted. However, for different reasons, I am satisfied that the injunction as actually granted cannot be stood over either in respect of the planning or the nuisance aspects of the case.
7.2 In the context of planning, the injunction imposed failed to have regard to the fact that some of the intensification of use which amounted to a material change of use was, in substance, statute barred. On the nuisance aspect the injunction was crafted largely by reference to a 1981 planning application and permission rather than, as it should have been, by reference to the measures which were reasonably required to do justice in all the circumstances of the case in the light of the established nuisance.
7.3 However, what is much less clear is as to the precise injunction which should have been put in place under either heading. Again, under both headings, I am not satisfied that it is open to, and, therefore, appropriate for, this Court to determine the precise form of injunction which should be granted. While it is regrettable, it seems to me to follow that the only proper course of action available to this Court is to remit the matter back to the High Court for the purposes of determining the appropriate injunction or injunctions which should be granted in the light of the analysis of the legal situation as determined by this Court. To that extent I would allow the appeal and remit the matter back to the High Court. However, there remains the question of what should be done in the meantime. That question comes into particular relief given the views which I have expressed as to the virtual inevitability that some form of injunction will ultimately be imposed.
7.4 In that context it is appropriate to address a key aspect of the evidence which is relevant both to the question of intensification of use in more recent, post-limitation period, times and also to the existing nuisance. That concerns the so-called practise of “drifting” which, as I understand it from the evidence, is a form of driving on a motor race track which involves attempting to “drift” the car around bends at least in part by the use of brakes. There was ample evidence to suggest that the noise associated with this activity was particularly acute. There was also evidence to suggest that there had been a significant growth in the activity concerned in recent times such that there is a realistic prospect that much, if not all, of the practise of drifting might be found to be a material change of use post-limitation period and also to be a significant contributor to the current nuisance.
7.5 It is also clear from the evidence that drifting constitutes a significant portion of the current use of the motor racing circuit. In the circumstances I would propose that Tipperary Raceway be restrained, until such time as the High Court has the opportunity to consider the appropriate forms of injunctive relief to be put in place on a permanent basis, from engaging in the practise of drifting. Given the uncertainty about all other aspects of the case I would not propose that any further restrictions be placed on the activities of Tipperary Raceway until such time as the High Court has had the opportunity to consider the matter fully.
7.6 It is important that I emphasise that both the measure prohibiting drifting and the absence of any measures restricting activities in any other way are designed to meet that short-term situation where this Court has held that some injunction is undoubtedly justified but does not feel that it is in a position either to sustain the injunction granted by the High Court or to determine itself what form of injunction should replace it. It should not be taken that the High Court judge to whom this matter is remitted should in any way be governed or influenced by that interim measure. If the High Court judge is persuaded that drifting should, either generally or to a specific extent, be permitted in the light of the principles set out in this judgment, then the High Court judge should make whatever order in respect of drifting is appropriate (including no order). Likewise, if the High Court judge is persuaded that any particular restriction on the general operation of the motor racing circuit is justified on either or both of planning and nuisance grounds, then such an order should be put in place even though this Court has not, on an interim basis, put in place any restrictions in that regard.
8. Conclusions
8.1 For the reasons set out in this judgment I have, therefore, come to the conclusion that the injunction granted by the High Court cannot be sustained either on the basis of the planning claim or on the basis of the claim in nuisance. While satisfied that some type of injunction was likely to have been justified on planning grounds I am satisfied that the trial judge was incorrect to disregard the planning limitation period and that the order actually granted was, therefore, incorrect. In that context I am also satisfied that, on a proper construction, there was no relevant condition attached to the planning permission in this case concerning scale and time of use. Thus s.160(6)(b) of the 2000 Act does not, in my view, have any application to this appeal. The timing of the enactment of that measure is not, therefore, relevant in this case.
8.2 Similarly I am satisfied that, while some injunction was justified on the basis of the established nuisance, it was incorrect to formulate the injunction concerned by reference to a 1980s planning application and permission rather than by reference to what was reasonably required to deal, in a just fashion, with the nuisance today.
8.3 Having concluded that the injunction granted could not, therefore, be sustained on either basis it seems to me that the appeal must be allowed. However, again for the reasons analysed in this judgment, I am not satisfied that it is either appropriate or possible for this Court to substitute its own injunction. It follows that, in my view, regrettably, the case must be remitted back to the High Court to determine what form of injunction is appropriate in the light of the analysis of the issues conducted by this Court.
8.4 However, for the reasons set out at paras. 7.4 and 7.5 above, I would propose as an interim measure that the practise of drifting be restrained until such time as the High Court has the opportunity to consider the appropriate form of injunctive relief to put in place on a permanent basis. I would, however, again emphasise that the choice of that interim measure is very much designed to deal with matters on a temporary basis and should not influence the ultimate determination, by the High Court judge to whom these matters are remitted, of the appropriate form of permanent injunction to be granted.
