Grianan Aileach Centre v Donegal County Council
 IESC 41
THE SUPREME COURT
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1993
PLANNING & DEVELOPMENT ACT 2000 S5
O'KEEFFE V AN BORD PLEANALA
MCMAHON V DUBLIN CORPORATION
PALMERLANE LTD V AN BORD PLEANALA & ANOR
PYX GRANITE CO LTD V MIN HOUSING & LOCAL GOVT & ORS
XJS INVESTMENTS LTD V DUN LAOGHAIRE CORPORATION
READYMIX (EIRE) LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974
PLANNING & DEVELOPMENT ACT 2000 S3(1)
TORMEY V IRELAND
CRIMINAL ASSESTS BUREAU (CAB) V HUNT 2003/10/2095
O'CONNOR V KERRY CO COUNCIL
MALVERN HILLS ACT 1924
JUDGMENT delivered the 15th day of July 2004, by Keane C.J.
These proceedings came before the High Court because of a dispute between the plaintiff/respondent (hereafter "the plaintiffs") and the defendant/appellant (hereafter "the planning authority"). They raise a question of some importance as to the jurisdiction of the court to construe planning permissions, but before turning to that issue, I should set out the factual background to the case.
On the 17 th December, 1998, the planning authority granted permission to the plaintiffs under the provisions of the Local Government (Planning and Development) Acts, 1963/ 1993, for a development described as the erection of a visitors' centre, in accordance with plans submitted with the application for permission at Speenoge, Burt, Co. Donegal. The site of the development was a disused church located near an ancient monument known as the Grianan An Aileach. A previous permission had, it would seem, been granted in respect of the building, but neither the High Court nor this court were furnished with any details of that permission and we are solely concerned with the permission granted on the 17 th December, 1998.
The terms of the permission of 17 th December, 1998 which have given rise to the present dispute must now be set out in more detail. It was a permission for
"Erection of a visitors' centre with history exhibition space, nature exhibition space, audio-visual theatre, craft shop, centre of intercultural activity, waiting area and associated facilities, plus outdoor pond and a sewage treatment system at Speenoge, Burt in accordance with the plans submitted with the application subject to the ten conditions set out in the Schedule attached."
Condition 9 provided that
"Use of premises shall be restricted to uses indicated on submitted plans and for no other use without prior written agreement of the Planning Authority."
The plans lodged with the application showed a building described as the "existing visitors' centre" and a number of other buildings described inter alia as a "centre of intercultural activities", a "nature exhibition", a "history exhibition" and an "audio-visual theatre".
It is also stated in the grant of permission that the permission would cease to have effect "in five years from the date of issue as regards any part of the development not completed by that date". It is not in dispute that the development has not been fully completed, part of the audio-visual theatre and the greater part of the history exhibition area not having been built. It would also appear that the plaintiffs were granted a restaurant license and a public dancing license in respect of the premises.
The differences between the plaintiffs and the planning authority as to how the permission was to be construed first emerged when the plaintiffs, on the 26 th March, 2002, sent the planning authority a schedule of events which it was intended to hold on the premises during the period March to August 2002. These included celebrations of various festivals, i.e. Easter, Bealtaine, the summer solstice and Lughnasada, themed banquets, an "open-house with session musicians from north and south", a celebration of Queen Elizabeth's golden jubilee, "themed banquets" celebrating Irish culture and a "themed American menu". The planning authority in their response on the 11 th April said that they considered the centre to be primarily a visitors' centre for tourists to interpret the monument and the adjoining woodlands. While they accepted that the permitted uses extended to banqueting nights on special occasions, they were of the view that the programme of activities appeared to relate to regular weekly functions which were not envisaged by the permission. The plaintiffs expressed their concern that the attitude of the planning authority was creating serious financial problems for them and that, in particular, they were being threatened with the withdrawal of funding by An Bord Fáilte. The planning authority, however, maintained that the premises were being used in a manner not envisaged by the planning permission in a letter of the 14 th May, 2002 where they said inter alia
"It has come to the attention of this Council that unauthorised development may have been, is being or may be carried out thereon, such unauthorised development being breaches of Condition 9 of the said permission (as to permitted uses of the premises), specifically uses as a concert venue, for weddings or other regular functions normally associated with a hotel or other entertainment venue and uses other than those which the Council has indicated would be acceptable ..."
There was further correspondence, including a letter of the 29 th July, 2002 from the solicitors for the plaintiffs enclosing an opinion of counsel to the effect that the uses in question were permitted by the planning permission. In further correspondence, the planning authority maintained their stance that uses generally associated with a concert/entertainment venue, nightclub, hotel, etc., were not, in their view, permitted. They advised the plaintiffs' solicitors that, if such uses were contemplated, there should be a fresh application for planning permission.
In a letter of 18 th November 2002, the plaintiffs informed the planning authority that they had obtained a dance licence and were now in a position, as they put it, "to develop our business". They gave details of a number of proposed events under the heading "Nights of Intercultural Activities", including music throughout the ages in New Orleans and the deep south of the US, an evening of Irish-Scots music, a Caribbean Christmas, a Victorian Christmas and a "themed Dickensian Christmas".
The planning authority had indicated in the course of its correspondence that, if the plaintiffs persisted in using the premises for purposes which, as the planning authority insisted, were not envisaged by the planning permission, enforcement proceedings would be issued. That did not happen, but on the 6 th March, 2003, these proceedings were commenced by plenary summons, claiming the following declarations:
2 "1. A declaration that the plaintiff is entitled to use the land the subject matter of the application and the premises thereon situate in accordance with planning permission register reference number 98/2124.
2. A declaration that the building erected pursuant to planning permission register reference number 98/2124 may be used for activities in the nature of cultural activities and / or as a centre for intercultural activity.
3. A declaration that the centre can be used for the purposes of music and/or dancing and/or poetry/storytelling and is not limited solely to Irish cultural activities dating from the medieval period and can be used for cultural events from cultures other than those associated with Irish culture and/or cultural activities where there is a mix of Irish and other cultures.
4. A declaration prohibiting the defendant from taking any steps to prevent the use of the lands and premises known as Grianan An Aileach Interpretative Centre for the purposes set out in the submission to the defendant dated the 26 th March, 2002.
5. A declaration prohibiting the defendant from taking any steps prohibiting the use of the lands and premises known as Grianan An Aileach Interpretative Centre, Speenoge, Burt, Co. Donegal for the purposes of nights of intercultural activities including the presentation of music throughout the ages in New Orleans and in the deep south of the United States, evenings of Scotch/Irish music celebrating in accordance with the University of Irish & Scots Music, music demonstrating the link between modern country music and Irish traditional music, celebration of intercultural preceltic feast of the winter solstice which would include a night of storytelling, song and dance, celebration of Spring including traditional dance from the Ulster Scots tradition Music poems, music from the Caribbean including folklore and food, music reflective of Victorian/Dickensian Christmas together with appropriate food from that era.
6. A declaration that the planning authority are not entitled...
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