Dublin City Council v Liffey Beat Ltd

JurisdictionIreland
CourtHigh Court
JudgeQuirke J
Judgment Date10 March 2005
Neutral Citation[2005] IEHC 82
Date10 March 2005
Docket Number[2003 No. 38 M.C.A.]

[2005] IEHC 82

THE HIGH COURT

Record No. 38 MCA/2003
DUBLIN CITY COUNCIL v LIFFEY BEAT LTD
IN THE MATTER OF AN APPLICATION PURSUANT TO THE PLANNING AND DEVELOPMENT
ACT 2000 AND
AND IN THE MATTER OF AN APPLICATION THE REGULATIONS MADE THEREUNDER
PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000
AND IN THE MATTER OF AN APPLICATION BY DUBLIN CITY COUNCIL

BETWEEN

DUBLIN CITY COUNCIL
APPLICANT

AND

LIFFEY BEAT LIMITED
RESPONDENT

EXCISE ACT 1835 S7

PLANNING & DEVELOPMENT ACT 2000 S160(1)

PLANNING & DEVELOPMENT ACT 2000 S2

GRIANAN AN AILEACH v DONEGAL COUNTY COUNCIL 2004 2 IR 625 2005 1 ILRM 106

PLANNING & DEVELOPMENT ACT 2000 S5

XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1986 IR 750 1987 ILRM 659

PLANNING AND ENVIRONMENTAL LAW:

Injunction

Planning permission - Change of use - Jurisdiction of court to consider planning permissions - Exclusive jurisdiction of planning authority and An Bord Pleanála - Non-compliance with conditions - Unauthorised use - Interpretation of conditions - Planning and Development Act 2000 (No 30), s160 - Application refused (2003/38MCA - Quirke J - 10/3/2005) [2005] IEHC 82 Dublin City Council v Liffey Beat Ltd.

The applicant applied pursuant to s. 160 of the Act of 2000 for an order restraining the respondent from the unauthorised use, as a nightclub, of premises known as "Spirit" and an order requiring the respondent to cease the allegedly unauthorised use of the basement level of Spirit as a bar and an order requiring that it be restored to the use permitted by the planning permission as a museum. The respondent was permitted to use both the ground floor and the first floors as a public entertainment area (music) with emphasis on seated entertainment where food was served without any restriction in time. The applicant submitted that at specific times the premises was used as a nightclub and that was in breach of condition no. 4 of the planning permission.

Held by Quirke J:

1. That the applicant established on the balance of probabilities that the use by the respondent of the basement area of the premises was an unauthorised use within the meaning of s.2 of the Act of 2000.

2. That the applicant failed to establish on the evidence that there was an unauthorised use of any part of the premises other than the basement. The applicant failed to define the word "nightclub" and did not adduce any evidence to enable the court decide what use "as a nightclub or similar function type of premises" comprised.

Reporter: L.O'S

1

JUDGMENT of Quirke J. delivered on the 10th day of March, 2005 .

2

This is an application pursuant to s. 160 of the Planning and Development Act, 2000 (and the regulations made thereunder) for various reliefs including:

3

(a) an order restraining the respondent from the unauthorised use, as a nightclub, of premises known as "Spirit". The premises are located at Middle Abbey Street and The Lotts in the City of Dublin.

4

(b) an order requiring the respondent to comply with: (i) condition No. 4 of a planning permission which is contained in planning register reference number 2298/95, (ii) condition No. 4 of a planning permission which is contained in planning register reference number 0354/97 and, (iii) condition No. 2 of a permission which is contained in planning register reference number 0629/98.

5

All of the permissions and conditions apply to the said premises known as "Spirit"

6

(c) (i), an order requiring the respondent to cease the allegedly unauthorised use of the basement level of the premises known as "Spirit" as a bar and (ii), an order requiring that it be restored to the use permitted by the planning permissions as a museum and

7

(d) orders requiring the respondent to ensure that any development of the premises is carried out in conformity with (i), conditions. 1 and 5 of the planning permission contained in planning register reference number 0354/97 and (ii), the entirety of the permissions granted and the conditions attached to the permissions.

FACTUAL BACKGROUND
8

1. The respondent is the owner of premises which are located at Middle Abbey Street, Dublin 1 and The Lotts, Dublin 1. The premises comprise a five storey over-basement building.

9

A leasehold interest in the property was acquired in 1996 by predecessors in title to the respondent which is the owner of the business name "Spirit". The building is substantial in size. From the date of its acquisition in 1995 it was the intention of its respective owners and occupiers to use the building on a commercial basis as a place of public entertainment.

10

2. By a planning permission bearing the planning register reference number 2298/95 the then owners of the premises were granted permission, (a), to demolish an existing structure at 57 Middle Abbey Street, Dublin 1, (b), to replace that structure with a new five storey over-basement building, (c), to alter a structure at numbers 44, 45, 46 and 47 The Lotts, Dublin 1, and (d), to change the use of the combined premises to accommodate a theatre, a place of public entertainment and ancillary accommodation.

11

3. Condition number 1 of planning permission register reference number 2298/95 (hereafter referred to as PP 2298/95) provided as follows:

"... the development shall be carried out in accordance with the plans, particulars and specifications lodged with the application save as may be required by the conditions attached hereto .."

12

Condition No. 4 of PP 2298/95 provided inter alia that:

"The use of the premises shall be confined to:"

13

a (1)(a) the ground floor being used as a public entertainment area (music) with emphasis on seated entertainment where food is served

14

(b) no part of this permission entitles the use of any part of the premises as a nightclub or similar function type of premises other than those as stated in condition 4(a) and (b) unless prior planning permission has been obtained for this use from the Planning Authority or on Bord Pleanala on appeal.

15

(c) the bar shall be used only as an ancillary use to the principal uses.

16

REASON: In the interest of proper planning and development of the area, to protect the amenity of adjoining residential development and to comply with the terms of this permission".

17

4. On the 6th June, 1997, the then owners of the premises were granted permission to revise the approved plans. In the new permission bearing planning register number 0354/97 of 1997 (hereafter referred to as PP 0354/97) the owners were permitted a change of use.

18

The change was described under the heading "Description". It provided as follows:

19

1. revisions to approved plan consisting of changes to elevations to The Lotts and Abbey Street, roof structures and lift shaft, together with revised mezzanine arrangement

20

2. changes of use from approved plans as follows

21

(a) "basement from store to museum,

22

(b) ground floor from music venue to museum, retail and restaurant

23

(c) second and third floors from office space to bar and music library".

24

Condition number 1 of PP 0354/97 provided inter alia that:

" .. the development shall be carried out in accordance with the plans, particulars and specifications lodged with the application .."

25

Condition no. 4 of PP 0354/97 provided as follows:

"The use of the premises shall be confined to"

(a) the first floor being used a public entertainment area (music) with emphasis on seated entertainment where food is served

(b) no part of this permission entitles the use of any part of the premises as a nightclub or similar function type premises other than those stated in condition 4(a) and (b) unless prior planning permission has been obtained for this use.

(c) the bar shall be used only as an ancillary use to the principal uses.

26

REASON: In the interest of proper planning and development of the area, to protect the amenity of adjoining and residential development and to comply with the plans of this permission)."

27

5. On 25th June, 1998, the then owners of the premises were granted a further planning permission with the register reference number 0628/98 (hereafter referred to as PP 0628/98)

28

Under the heading "Description" it provided as follows:

"Signage and modifications, consisting of changes to elevations to approved plans".

29

Condition number 2 of PP 0628/98 provided as follows:

"The use of this premises shall be confined to"

(a) the ground floor being used as a public entertainment area (music) with emphasis on seated entertainment where food is served."

(b) no part of this permission entitles the use of any part of the premises as a nightclub or similar function type basis other than the use as stated in condition 4 (a) unless prior planning permission has been obtained for this use from the Planning Authority or An Bord Pleanála on appeal).

(c) The bar shall be used only as an ancillary use to the principal uses."

30

REASON: "In the interest of proper planning and development of the area, to protect the amenity of adjoining residential development and to comply with the terms of this permission".

31

6. Condition No. 4 of PP 0354/97 has been couched in terms virtually identical to the terms of condition No. 4 of PP 2298/95 with the important exception that the condition 4 of PP 0354/97 authorised the use of the first floor as "a public entertainment area (music) with emphasis on seated entertainment where food is served" whereas condition no. 4 of PP2298/95 authorised the use of the ground floor for that purpose.

32

Condition No. 2 of PP 0628/98 (which was the counterpart condition in respect of conditions 4 of the two earlier planning permissions) appeared to repeat the permission to use the ground floor as:

" a public entertainment (music) with...

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