Butler v Dublin Corporation

• Jurisdiction: Ireland
• Judge: The Hon. Mr. Justice Morris,
• Judgment Date: 19 February 1998
• Neutral Citation: [1998] IEHC 194
• Court: High Court
• Docket Number: No. 8086P/1997
• Date: 19 February 1998

[1998] IEHC 194

THE HIGH COURT

No. 8086P/1997

BUTLER v. DUBLIN CORPORATION

BETWEEN

RONALD RICHARD BUTLER, EWART BELL, ARTHUR RONALD DAWSON ANDTHOMAS JOSEPH KIRWAN

PLAINTIFFS

AND

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMAN AND BURGESSES OFTHE CITY OF DUBLIN

DEFENDANTS

Citations:

MOUNTCHARLES V MEATH CO COUNCIL 1997 1 ILRM 446

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S30(3)

MONAGHAN CO COUNCIL V BROGAN 1987 IR 333

GALWAY CO COUNCIL V LACKAGH ROAD LTD 1985 IR 120

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 9

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 10

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 11

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26(3a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(4)(e)

WEBBER V MIN FOR HOUSING & LOCAL GOVT 1968 1 WLR 29

Synopsis

Planning

Planning permission; unauthorised use of lands; material change of use; time-limits; staging of pop concerts in a national public stadium; whether staging of concerts involves a change of use from pre-1964 use of lands; whether use of lands for non-sporting events is a pre-1964 use; whether use of lands for sporting events and pop concerts closely related; whether change in use material; comparison of noise levels for both events; whether planning legislation applicable to transient events; whether outside time limit for enforcement action Held: Staging of pop concerts constitutes a material change of use (High Court: Morris P. 19/02/1998)

Butler v. Dubin Corporation - [1999] 1 IR 565 - [1998] 1 ILRM 533

1 Judgment of The Hon. Mr. Justice Morris,delivered the 19th day of February 1998.

Background.

2 The plaintiffs are the trustees of the Irish Rugby Football Union (IRFU) and in that capacity are the body responsible for the control and management of their headquarters situate at Lansdowne Road, Ballsbridge, Dublin 4. This is a stadium with a capacity of 47,000 at sporting fixtures and 42,500 for concert events. The stadium is situate in a built up residential area having Lansdowne Road on its southern end and Havelock Square and Vavissor Square on the northern end. The main entrances to the ground are form Lansdowne Road and Havelock Square. The ground has been in existence for upwards of 140 years but the facilities such as stands, changing rooms, pavilions etc. have been extended from time to time down the years. The most recent addition to the stadium has been the instillation of floodlighting in the grounds in or about the year 1992. The grounds at Lansdowne Road are one of three venues in Dublin considered by promoters of pop concerts to be suitable for the staging of open air pop concerts (the other two being Croke Park and the grounds of the Royal Dublin Society (the RDS)). The grounds at Lansdowne Road have been used for the staging of pop concerts from time to time. I will deal with these events in more detail later on in this judgment. So far as the promoters and the IRFU are concerned the grounds have been found to be suitable for the staging of these pop concerts. Mr. Oliver Barry who is a well known promoter of events such as pop concerts and who has given evidence in the case has told the courtthat he has entered into an arrangement with the IRFU whereby he would propose, if permitted, to stage up to three such concerts annually in the grounds and the plaintiffs have agreed to his doing so subject to arranging the details relevant to any such concert.

3 In the summer of 1997 Mr. Barry had proposed to stage two pop concerts at the grounds at Lansdowne Road. These were to be given by U2, an internationally famous pop group. These concerts were scheduled to take place on the 30th and 31st of August, 1997. The Dublin Corporation had under consideration for some time the decision give by Kelly, J. in Lord Henry Mountcharles -v- Meath County Council 1997ILRM 446. This judgment was delivered on the 17th December, 1996. The Corporation formed the view that the holding of the proposed concerts by U2 at the Lansdowne Road grounds constituted an unauthorised use of the lands by the IRFU and by notice dated the 30th of June, 1997 (the section 26 notice) they required that the "said unauthorised use of the lands shall not take place as proposed" and required that the IRFU "ensure compliance with this notice". This warning notice was served pursuant to section 26 of the Local Government (Planning and Development) Act, 1976as amended by section 30(3) of the Local Government (Planning and Development) Act, 1992.

4 By the time this notice came to be served plans for the staging of the concert had reached an advanced stage. Significant advertising costs hadbeenincurred, the artists had been booked, tickets had been sold and accordingly an agreement was reached between the parties whereby it was agreed that the concerts would be held in the grounds on the understanding that they would take place on a "without prejudice" basis. This, I take to mean, that the IRFU would not rely upon the fact that these concerns took place as evidence in support of a case that the lands had acquired an established user such as would render them immune from prosecution. In a letter of the 30th of July, 1997 the IRFU undertook to institute the present proceedings "to seek declaratory orders regarding the staging of concerts in ....... Lansdowne Road". It also undertook not to stage any further concerts pending the determination of the issues incourt.

5 It is in these circumstances that the matter comes before thecourt.

The Evidence.

6 The concerts went ahead on the 30th/31st of August, 1997 and the IRFU engaged the services of a number of experts to monitor the impact which the concerts made on the locality. The results of these surveys have been tendered to the court. These, I am taking, as a profile of a typical pop concert. I have been told that U2 would be considered to be among the groups most likely to generate the highest amount of noise during a concert. However I am taking these statistics as the norm for pop concerts for two reasons. In the first instance these are the only statistics which I have been offered. The secondand, from a practical point of view, the more important is that since I am required to provide the parties with findings of fact in relation to the impact which the holding of "pop concerts" are likely to have on the locality I believe that the higher scale should be used so that if there is a finding of the court in favour of the plaintiffs then they would know that they would be free to hold "pop concerts" up to and including the degree of impact generated by U2. Findings of fact based upon statistics generated from a tranquil concert would be valueless to the parties when precisely the same issues would arise on the next occasion upon which a group such as U2 were being brought to Lansdowne Road.

7 The data and statistics gathered during the U2 concert are crucial in the determination of the question of material change of user.

The comparisons made between the Lansdowne Road position and that of Croke Park and the Royal Dublin Society grounds.

8 A considerable time was devoted during the hearing of this action to a comparison of the treatment which was given to the GAA in their dealings with Dublin Corporation when the grounds at Croke Park were under review and also the treatment given to the Royal Dublin Society when their grounds in Ballsbridge were being considered by the Corporations. Counsel for the plaintiffs made submissions to the court that could be broadly interpreted as suggesting that the IRFU would be entitled to be treated in the same way as theowners of the other two grounds. I do not accept this as the correct basis upon which the issues in this case should be approached. I am of the view that in each case the Corporation must deal with the relevant problem in accordance with the Planning Acts. For instance in the case of the RDS it is clear that the decision reached by the Corporation was based upon the fact that the user of the lands by the RDS over a period of five years rendered it immune from proceedings by the Corporation. In my view it would be wrong to assume that all land acquired such a status or would be entitled to be dealt with on that basis.

9 Counsel for the plaintiffs Mr. Allen, S.C., has formulated four or perhaps five submissions and I propose to deal with the case upon the basis of those four submissions rather than on a comparison with any other lands.

The Issues.

10 While in the pleadings delivered in this case declaratory relief's are sought the issues which the court is required to determine can in my view be dealt with by a consideration of the submissions made by Mr. Allen, S.C., on behalf of the...