Ampitheatre Ireland Ltd v HSS Developments & HSS (t/a The Mansfield Group)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 22 October 2009 |
| Neutral Citation | [2009] IEHC 464 |
| Court | High Court |
| Date | 22 October 2009 |
[2009] IEHC 464
THE HIGH COURT
Between:
PLANNING & DEVELOPMENT ACT 2000 S160
PLANNING & DEVELOPMENT ACT 2000 S47
CMSN v IRELAND 2009 ENV LR D3
READYMIX (EIRE) LTD v DUBLIN CO COUNCIL & MIN FOR LOCAL GOVT UNREP SUPREME 30.7.1974 2007/53/11334
XJS INVESTMENTS LTD, IN RE 1986 IR 750 1987 ILRM 659 1986/8/1935
MORRIS v GARVEY 1983 IR 319
PLANNING & DEVELOPMENT ACT 2000 S50
KENNY v DUBLIN CITY COUNCIL UNREP SUPREME 5.3.2009 2009 IESC 19
GRIMES v PUNCHESTOWN DEVELOPMENTS CO LTD & MCD PROMOTIONS LTD 2002 1 ILRM 409
SWEETMAN v SHELL E & P IRL LTD & ORS 2007 3 IR 13 2006/55/11657 2006 IEHC 85
LEEN v AER RIANTA CPT 2003 4 IR 394 2003/30/7167
COMHALTAS CEOLTEOIRI EIREANN, IN RE UNREP FINLAY 14.12.1977 1977/2/306
PLANNING & DEVELOPMENT ACT 2000 S160(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
STAFFORD & BATES v ROADSTONE LTD 1980 ILRM 1
SHORTER OXFORD ENGLISH DICTIONARY 6ED 2007
PLANNING AND ENVIRONMENTAL LAW
Enforcement
Planning permission - Conditions - Whether respondent failed to comply with conditions of planning permission - Whether hosting public performance in breach of conditions of planning permission - Discretion to grant relief - Factors to be considered - Motivation of applicant in bringing proceedings - Interpretation of planning documents - No enforcement action by planning authority - Locus standi - Unauthorised development - Whether event constituted concert - Meaning of word function - Whether anything in planning conditions which precluded respondent from hosting show - Public interest - Re XJS Investments Ltd [1986] IR 750; Sweetman v Shell E&P Ireland Ltd [2006] IEHC 85, [2007] 3 IR 13; Leen v Aer Rianta cpt [2003] 4 IR 394; Kenny v Dublin City Council [2009] IESC 19, (Unrep, SC, 5/3/2009) and Stafford v Roadstone Ltd [1980] ILRM 1 applied; Commission v Ireland Case C-215/06 [2009] Env LR 3; Readymix (Eire) Ltd v Dublin County Council (Unrep, SC, 30/7/1974); Morris v Garvey [1983] IR 319; In re Comhaltas Ceoltóirí Eireann (Unrep, HC, Finlay P, 14/12/1977) and Grimes v Punchestown Developments Company Ltd [2002] 1 ILRM 409 considered - Local Government (Planning and Development) Act 1976 (No 20), 27 - Planning and Development Act 2000 (No 30), ss 47, 50 and 160 - Application refused (2009/226MCA - Hedigan J - 22/10/2009) [2009] IEHC 464
Amphitheatre Ireland Ltd v HSS Developments
Facts the applicant sought an order of prohibition restraining the respondent from holding an ice skating show pursuant to section 160 of the Planning and Development Act 2000 at its convention centre. The grounds upon which the applicant sought the order were , inter alia, that it was an unauthorized development in that the respondent had failed to comply with conditions imposed by the planning authority in relation to the use of the convention centre, which required, inter alia, that the "convention centre shall be used solely as a convention centre/function room and shall not be used for public concerts" and that "prior to the re-commencement of development, the developer shall enter into a legally binding agreement with the planning authorityto ensure that the associated traffic movements associated with events in the complex do not unduly impact on the carrying capacity of the road network in the area" . The applicant had previously unsuccessfully applied to hold the same event at its facilities.
Held by Mr. Justice Hedigan in refusing the relief sought that the nature of the remedy under section 169 of the Act of 2000 was a discretionary one and that the onus of proof rested on the applicant in a section 160 application to satisfy the court that there had been unauthorized development and that the court should exercise its discretion to make an order. That the principles to be applied in interpreting planning documents were that they were to be construed in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers, unless such documents, read as a whole, necessarily indicated some other meaning. Where the words used were unclear or ambiguous, the interpretation of a condition of planning permission required reference to its context and each case had to be determined on the basis of the individual facts and circumstances surrounding it.
Leen v. Aer Rianta cpt [2003] 4 IR 394 applied; Stafford v. Roadstone Ltd. [1980] ILRM 1 considered.
That the event in question could not be construed as a "concert" as that term was understood and used by ordinary members of the public given that the ordinary use of that word would refer to an event which was primarily about the performance of songs or other music. Whilst music may have been an element of the performance in question, it was not an event where the primary motivation of the audience attending was to hear the music performed.
That the word "function" carried a degree of ambiguity but would be understood quite broadly by an ordinary member of the public to include the event in question.
Whilst there may have been a technical breach of the condition requiring the respondent to enter into an agreement with the planning authority before the convention centre could be used, the public interest in holding the event and the fact that the planning authority had not embarked upon enforcement proceedings were matters which weighed towards the exercise of judicial discretion to refuse relief on that ground.
Reporter: P.C.
The Applicant herein is the owner and operator of Ireland's largest entertainment venue, The 02.
The Respondents are the owners and operators of the Citywest Hotel and associated facilities, including a convention centre, near Saggart in Dublin.
The Applicant seeks injunctive relief against the Respondents pursuant to section 160 of the Planning and Development Act 2000 ("the 2000 Act").
The facility at Citywest which is owned and operated by the Respondents consists of a large hotel, apartments, a convention centre and function rooms, a leisure centre, two golf courses and other facilities including a retail outlet and sits on an overall area of 380 acres. On or about 10 November 2003, the Respondents were granted planning permission by South Dublin County Council (hereinafter "the Council" or "local authority" or "planning authority) for the development of a convention centre on the Citywest site. Some facilities already existed on this site.
On foot of this grant of permission, the Respondents commenced works on the convention centre. However, in or about 20 April 2004, An Bord Pleanála (hereinafter"the Board") refused permission for the convention centre on appeal, thus rendering the development by the Respondents unauthorised. The Respondents sought retention permission for the convention centre and permission to complete it in or about 8 February 2005 which application was again refused by the Board on or about 26 May 2006.
The Respondents made a further application for retention of a revised convention centre on or about 24 April 2007. An Environmental Impact Statement (EIS) accompanied this application. The public notice of the planning application, and the application itself, stated that the application was for full planning permission for the development of a convention centre/function room to be used in conjunction with the existing uses and facilities of the existing hotel.
Permission was granted by the Board on 18 July 2008 subject to twenty conditions. In the decision, the Board set out its reasons and considerations in deciding to grant permission. It referred, inter alia, to "the existing and permitted development and the established uses of the Citywest Complex". It further stated:- "It is considered that the retention and completion of the development, subject to compliance with the conditions set out below, would not seriously [affect] the amenities of the area or of property in the vicinity and would be acceptable in terms of traffic safety and convenience...In deciding not to accept the Inspector's recommendation to refuse permission, the Board had particular regard to the improved public transport facilities and the scale of the facility in relation to existing development permitted on the site."
For the purposes of this application, Conditions 3 and 4 of the Board's planning permission are most relevant. Condition 3 states:- "The proposed convention centre shall be used solely as a convention centre/function room and shall not be used for public concerts." The reason given for this condition is:- "Such use did not form part of the development as applied for and as described in the public notice and the Board is not satisfied that such a use would be acceptable in terms of traffic management and residential amenity."
Condition 4 states:- "The maximum number of patrons within the convention centre complex shall not exceed 4,161 persons at any one time (that is, the development the subject of this application and the existing conference facility taken together). Prior to recommencement of development, the developer shall enter into a legally binding agreement with the planning authority under Section 47 of the Planning and Development Act 2000 in this regard." The reason stated for this condition is:- "To ensure that the associated traffic movements associated with events in the complex do not unduly impact on the carrying capacity of the road network in the area (including national roads) and...
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