Butler v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Keane, J.,O' Flaherty J.
• Judgment Date: 22 January 1999
• Neutral Citation: [1999] IESC 19
• Court: Supreme Court
• Docket Number: (61/98),[1997 No.
• Date: 22 January 1999

BUTLER & ORS v. DUBLIN CORPORATION

AN CH ÚIRT UACHTARACH

(F)

BETWEEN:

RONALD RICHARD BUTLER SIR EWART BELL ARTHUR ROBERT DAWSONTHOMAS JOSEPH KIERNAN AS TRUSTEES OF THE IRISH RUGBY FOOTBALLUNION

Plaintiffs/Appellants

.V.

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMAN, ANDBURGESSES OF DUBLIN

Defendants/Respondents

[1999] IESC 19

Hamilton C.J.,

O'Flaherty J.,

Keane J.,

Murphy J.,

Lynch J.,

(61/98)

THE SUPREME COURT

Synopsis

Planning

Judicial review; planning permission; unauthorised use; transient events; occasional use; material change of use; planning permission required for the staging of a pop concert at a sports stadium; whether there was a change of use which was material in planning terms; whether pop concert is a transient event for which planning permission is inappropriate; whether musical events were an occasional use before 1963 and therefore did not require planning permission; ss.3 and 40, Local Government (Planning and Development) Act, 1963; s.26(3A), Local Government (Planning and Development) Act, 1972; s. 27, Local Government (Planning and Development) Act, 1976; s. 91, Road Traffic Act, 1961; s. 107, Environmental Protection Agency Act, 1992; Litter Pollution Act, 1997

Held: Appeal allowed; no planning permission required

Butler v. Dublin Corporation - Supreme Court: Hamilton C.J., O'Flaherty J., Keane J., Murphy J., Lynch J. - 22/01/1999 — [1999] 1 IR 576 - [1999] 1 ILRM 481

The requirement to obtain planning permission involves considerable controls on the rights of property which has constitutional implications. The planning code was therefore not designed to restrict the use of land used for ancillary fleeting or temporary purposes.

However if there was a continued use of lands for temporary purposes, which had not occurred in this instance, then it would be arguable that intensification of use had occurred. This would in turn constitute development as set out in s 3 of the Local Government (Planning and Development) Act, 1963 and would require planning permission.

Citations:

MOUNTCHARLES V MEATH CO COUNCIL 1997 1 ILRM 446

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S33

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S40

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

MAHON V BUTLER 1997 3 IR 369

MONAGHAN CO COUNCIL V BROGAN 1987 IR 333

SLAUGHTER OF ANIMALS ACT 1935

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S107

ROAD TRAFFIC ACT 1961 S91

LITTER POLLUTION ACT 1997

READYMIX (EIRE) LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974

PATTERSON V MURPHY 1978 ILRM 85

DUBLIN CO COUNCIL V TALLAGHT BLOCK CO LTD 1982 ILRM 534

CARRICKHALL HOLDINGS LTD V DUBLIN CORP 1983 ILRM 268

DUBLIN CO COUNCIL V CARTY BUILDERS & CO LTD 1987 IR 355

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S40(b)

WEBBER V MIN OF HOUSONG & LOCAL GOVT 1968 1 WLR 29

FRESCATI ESTATES V WALKER 1975 IR 177

LAWSON V FOX 1974 AC 803

TOWN & REGIONAL PLANNING ACT 1934

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

1 22nd day of January,1999,by O' Flaherty J.

O' Flaherty J.

Introduction

2 The Irish Rugby Football Union (IRFU) was formed in 1879; Dublin University (Trinity College) rugby club had been founded in 1854 and it was on the initiative of the members of that club that the IRFU was formed. The first international rugby match played at Lansdowne Road was between Ireland and England in 1878; it is the oldest international test ground in the world.

3 Mr. Philip Browne, the secretary and treasurer of the IRFU, told of the purposes and objectives of the IRFU as well as the place that the Lansdowne Road ground occupies in its scheme of things, asfollows:-

"Our object in life is to control, foster and develop rugby football in the four provinces of Ireland. [The IRFU] is a federal body. Our development role is a social role as well and the prime fund raising or financial engine of the whole sport is in fact Lansdowne Road which is our prime asset... We have to use our venue, our asset, as a means of funding a whole range of activities which have to be funded and are non-profit making."

4 So the IRFU needs to make the ground available to others so as to generate income that will be used to foster the game of rugby. Over the more than one hundred years of its existence, many different events have been held in the ground, social, religious, athletic, and including other football games such as soccer and American football, as well as musical events.

For Resolution

5 The single question for resolution in this litigation is whether the holding of pop concerts and other musical events and, indeed, non-sporting events in general requires planning permission from the relevant local authority which is Dublin Corporation, therespondent.

6 It should be emphasised that the requirements for the proper policing, stewarding as well as a proper regard for the safety of patrons and others who attend Lansdowne Road in large numbers is not in debate in this litigation. It is common ground that a strict regime in regard to the safety of persons and in regard to traffic control is in place for any event of a large dimension that is held in Lansdowne Road. Before any major event, the environmental health section of Dublin Corporation is consulted as well as the fire brigade section, the gardai, representatives of the civil defence, the Eastern Health Board, St. John's Ambulance as well as Iarnrod Eireann; in addition, there is a voluntary code of practice both in regard to the safety of sports grounds for sports events as well as in regard to the holding of pop concerts. Naturally, the IRFU would wish to give a lead in complying with all these requirements; indeed, there is a pragmatic reason why they should do so as well because their insurance brokers would be very unhappy if they did not comply with the requirements of these various, regulatory authorities.

Confined to Particular Stadium

7 It should be noted, too, that this case is concerned purely with Lansdowne Road and while the debate that took place in regard to it might have some relevance for two similar venues in Dublin, namely CrokePark,Jones Road, Drumcondra, which is the headquarters of CumannLúthchleas Gael (the Gaelic Athletic Association) and the Royal Dublin Society grounds at Ballsbridge, Dublin, it has nothing to say to smaller venues. There was mention made in the course of the evidence about certain greyhound tracks which would, in the normal way, hold about seven or eight thousand people but, at a stretch and if the track etc. was availed of, might accommodate twenty thousand people. I emphasise that this case has nothing to say to that situation. It is concerned with a ground with a spectator capacity of about forty thousand people and, to repeat myself, is concerned, with the single, solitary question of how the planning code impinges on the holding of such events as pop concerts in this particular ground.

Letter from Respondents

8 Prior to the decision of Peter Kelly J. in of Mountcharles .v. Meath County Council [1997] 1 ILRM 446, it does not appear to have occurred to anyone that the holding of a pop concert, or the like, at Lansdowne Road would require planning permission. But then the decision in the Mountcharles case was given on the 17th December, 1996, and this, no doubt, prompted a letter to be dispatched from a principal officer of the respondents to Mr. Browne of theIRFU dated 5th March, 1997, in regard to the holding of a Celine Dion concert on 12th June, 1997. The letter was as follows:-

"Re: Lansdowne Road Grounds - Concerts

Dear Sir,

I refer to the holding of concerts at the above location.

I wish to inform you that in light of the recent High Court judgment in the case of Earl of Mountcharles .v. Meath County Council, planning permission is required for the forthcoming concert of Celene Dion. No further concert events should be promoted without first obtaining planning permission.

Yours faithfully"

9 But no further notice was served and the concert went ahead.

The U2 Concerts

10 At this stage, too, Mr. Oliver Barry, the well-known promoter, had reached an agreement with the IRFU to stage two pop concerts at Lansdowne Road. These were to involve the world famous Irish group, U2, and were scheduled to take place on 30th and 31st August, 1997.

Warning Notice

11 Dublin Corporation formed the view that the holding of the proposed concerts by U2 constituted an unauthorised use of the lands by the IRFU and by notice dated the 30th June, 1997, 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 s. 26 of the Local Government (Planning and Development) Act, 1976, as amended by s. 33 of the Local Government (Planning and Development) Act, 1992.

Liberty to Seek Judicial Review

12 The trustees moved in the High Court for leave to seek judicial review so as to quash this warning notice which application, on being refused, the matter was appealed to this Court and by its order of 11th July, 1997, the Court gave the trustees liberty to apply to seek judicial review and directed that the application should proceed by way of plenary summons.

13 The parties then reached an accommodation that since the performers, with their large entourage of support staff and other backup services, had been booked for the concerts in question, great expense had been incurred, the tickets had been sold etc. that the concerts should go ahead but withoutprejudice to the entitlement of the Corporation to assert that their stance was a correct...