A SOUTH Dublin couple who lost a High Court action over their alleged exposure to very serious and aggravating noise from the Luas, which runs close to their home, will have to pay some of the State’s costs in the case.
The couple, who have to pay their own costs of the 16-day action, were yesterday ordered to pay five days of the costs incurred by the Attorney General.
Ms Justice Mary Laffoy made the orders arising from her dismissal last March of the action by Paula and Vincent Smyth, of Cambridge Terrace, Leeson Park, Dublin.
By operating within noise levels predicted in an environmental impact statement that accompanied the application to construct the Green line, the Railway Procurement Agency (RPA) was not infringing the plaintiffs’ comfortable and healthy enjoyment of their home, she ruled.
The couple had sued the RPA and Veolia Transport Ireland Ltd, operator of the Luas for the RPA. The AG was a notice party in the case. Yesterday Ms Justice Laffoy ruled the Smyths must pay the AG’s legal costs for five of the 16 hearing days.
Previously the court was informed that, by agreement, the couple, Veolia and the RPA would each pay their own legal costs, but the AG sought his costs against the couple.
Séamus Woulfe for the couple, had argued no order should be made on the AG’s costs or alternatively the costs should be limited.
In her decision, the judge said, despite bringing some clarity to the law, there were no special circumstances where she could depart from the normal rule where the losing party in a civil action must pay the costs.
The Smyths had raised a constitutional issue relating to the effect on their home caused by the operation of the Luas, which required the presence of the AG, she noted. That issue, along with the rest of the Smyths’ claim, was dismissed.
As the AG had only made legal submissions, questioned just one witness during the action, and was not required for the entire hearing, the judge ruled the AG was entitled to legal costs for five of the 16 days.
The couple had sought injunctions restraining the defendants operating the Luas in a manner that caused a noise nuisance and requiring them to erect an appropriate barrier to reduce the noise. They also sought damages.
The Smyths had claimed their enjoyment of their home was “severely undermined and compromised” due to noise from the Luas since it began operating in July 2004. They claimed they were unable to enjoy their garden or hold a conversation when a tram passed and were unable to sleep properly. Their bedroom faced on to the Luas embankment and they regularly slept with the windows shut and with ear plugs.
In denying the claims, the defendants said the Luas was operated in accordance with the terms of the Transport Light Rail Acts of 1996 and 2001, which did not provide, as a matter of law, for the nuisance alleged.