Court upholds racetrack’s appeal against injunction

An appeal by a Co Tipperary-based motor racing track owner against a High Court injunction granted to a nearby stud farm restricting the times the track can operate has been upheld by the Supreme Court.

However, in allowing the appeal, the Supreme Court sent the case back to the High Court for reconsideration.

In 2008 Tullamaine Castle Stud secured a High Court injunction against Tipperary Raceway which owns and runs a motor racing circuit near Rosegreen, Co Tipperary.

The stud claimed noise generated by an increase in the type of activity being carried out at the track had a significant effect on its equine business.

The stud alleged there had been a breach of the 2000 Planning and Development Act due to a significant intensification of use and the amount of noise generated by the track amounted to a nuisance.

The track owner opposed the application.

The injunction was granted by Mr Justice Peter Charleton. He was satisfied the business of the plaintiffs had suffered as a result of the nuisance caused by the defendants.

He also found the defendants were bound by the 1981 planning permission to operate the racetrack only on either a Saturday or a Sunday for a maximum of three hours, plus a maximum of two hours practice during the week.

Those hours had increased over the years and the hours racing recorded in 2007 varied between 29 and 60 hours a month.

Any intensification in the use of premises may, of itself, constitute a development, which requires planning permission, the judge said, adding that in this case no such permission had been sought or granted.

The judge also rejected the defendants’ claim that they were entitled to carry on the activity because of long usage.

The decision was appealed by Tipperary Raceway on grounds including the High Court was wrong to conclude the breach of the planning laws, brought about by the intensification of use, was not subject to a seven-year limitation period in the same way as any other development.

The material change of use, which predated a time seven years before the commencement of the proceedings, was no longer capable of enforcement under the 2000 Act, it was submitted.

In a unanimous decision delivered yesterday, the three-judge Supreme Court, comprised of the Chief Justice Ms Justice Susan Denham, Mr Justice Frank Clarke and Ms Justice Elizabeth Dunne upheld and remitted the dispute for a fresh hearing before the High Court.

Giving the court’s judgment, Mr Justice Clarke said the court agreed with submissions by Tipperary Raceway, represented by Oisin Collins, that the High Court’s decision could not be sustained.

Mr Justice Clarke said while he was satisfied “some type of injunction was likely to be justified on planning grounds”, the High Court was incorrect to disregard the seven-year planning limitation period found in the 2000 Act.

In addition, the Supreme Court was also satisfied some injunction was justified on the basis of established nuisance.

While the appeal had to be allowed, it was not possible for the court to substitute its own injunction.

“Regrettably, the matter must be remitted back to the High Court to determine what form of injunction was appropriate,” said the judge.

In the interim, he said the practise of “drifting” at the track should be restrained until the High Court had determined the matter.

The matter will return before the Supreme Court in October.