Grianan Aileach Centre v Donegal County Council

 
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[2004] IESC 41

THE SUPREME COURT

Keane C.J.

Murray J.

McGuinness J.

391/03
GRIANAN AN AILEACH INTERPRETATIVE CENTRE CO LTD v. DONEGAL CO COUNCIL

BETWEEN

GRIANAN AN AILEACH INTERPRETATIVE CENTRE COMPANY LTD
PLAINTIFF/RESPONDENT

AND

THE COUNTY COUNCIL OF THE COUNTY OF DONEGAL
DEFENDANT/APPELLANT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1993

PLANNING & DEVELOPMENT ACT 2000 S5

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

MCMAHON V DUBLIN CORPORATION 1997 1 ILRM 227

PALMERLANE LTD V AN BORD PLEANALA & ANOR 1999 2 ILRM 514

PYX GRANITE CO LTD V MIN HOUSING & LOCAL GOVT & ORS 1960 AC 260

XJS INVESTMENTS LTD V DUN LAOGHAIRE CORPORATION 1987 ILRM 659

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

PLANNING & DEVELOPMENT ACT 2000 S3(1)

TORMEY V IRELAND 1985 IR 289

CRIMINAL ASSESTS BUREAU (CAB) V HUNT 2003 2 IR 168 2003/10/2095

O'CONNOR V KERRY CO COUNCIL 1988 ILRM 660

MALVERN HILLS ACT 1924

Synopsis:

- [2004] 2 IR 625 - [2005] 1 ILRM 106

Facts: On 17 December, 1998, the planning authority granted permission to the plaintiffs under the provisions of the Local Government (Planning and Development) Acts, 1963 to 1993, for a development described as the erection of a visitors' centre, in accordance with plans submitted with the application for permission at Speenogue, Burt, Co. Donegal. The permission was subject to ten conditions set out in the Schedule attached thereto and condition 9 provided that the use of the premises was to be restricted to the uses indicated on the submitted plans. The plaintiffs were also granted a restaurant license and a dancing license in respect of the premises. Subsequently, on 26 March, 2002, the plaintiffs sent to the planning authority a schedule of events which it intended to hold on the premises during the period March to August 2002. Those events included celebrations of various festivals such as Easter and themed banquets. The planning authority responded by letter of 11 April stating that they considered the centre to be primarily a visitors' centre for tourists to interpret the monument and the adjoining woodlands and they maintained that the premises was being used in a manner not envisaged by the planning permission. The defendants advised the plaintiffs that if they contemplated using the premises for uses associated with a concert/entertainment venue, nightclub, hotel etc., then a fresh application for planning permission should be lodged. The defendants also indicated that if the plaintiffs continued to use the premises for purposes not envisaged by the planning permission then enforcement proceedings would be issued. The plaintiffs contended that the dispute regarding the use of the premises was creating considerable financial difficulties for it and subsequently, on 6 March, 2003 the plaintiff commenced proceedings by way of plenary summons, claiming certain declaratory relief, damages and interim and/or interlocutory relief. The plaintiffs then served a notice of motion, claiming orders of prohibition against the defendant and that motion was treated as the trial of the action by Kelly J in the High Court. The defendants resisted the granting of the relief sought on the grounds that the uses in question were not authorised by the planning permission and also because the High Court did not have jurisdiction to grant the relief sought. The trial judge invited counsel at the conclusion of the hearing to formulate a declaration which, would be of genuine benefit to both parties concerning the future use of the premises. The defendants submitted that the court was being invited to resolve issues that were properly matters for the planning authority and An Bord Pleanala. The trial judge granted a declaration that the plaintiffs were permitted to use the centre for the types of uses set out in the schedule of activities of the 26 March, 2002 and 18 November, 2002 and activities of a like kind including the service of food and drink ancillary to such cultural activities. However, the plaintiffs were not entitled to use the centre for non-cultural activities and in particular were not permitted to use it for the holding of weddings or use as a nightclub. Nor were the premises to be used solely or primarily as a restaurant save with the permission of the defendant.

The defendant appealed that order of the High Court, contending that the High Court had no jurisdiction to grant relief of the nature sought, alternatively they submitted that the trial judge was, in any event, in error in construing the planning permission as authorising the activities in question.

Held by the Supreme Court (Keane C.J., Murray, McGuiness JJ) in allowing the appeal and substituting for the order of the High Court an order dismissing the plaintiff's claim:

1. That the issue for consideration, namely whether the proposed uses were authorised by the planning permission required a determination of whether what was being proposed would constitute a material change in the use of the premises. It followed that the question as to whether planning permission was required in this case necessarily involved the determination of the question as to whether the proposed uses would constitute a "development", that is a question which the planning authority and An Bord Pleanala were empowered to determine pursuant to section 5 of the 2000 Act.

2. That if enforcement proceedings were brought in the High Court, the court may have been required to determine whether there was a material change of use or whether the development was sanctioned by an existing planning permission. However in the present proceedings the court was not entitled to determine such an issue and if the court exercised such a jurisdiction then there would be an overlapping and unworkable jurisdiction between the courts and the planning authority and An Bord Pleanala.

Pyx Granite Company Ltd v Minister of Housing and Local Government & Ors [1960] AC 260 distinguished.

3. That the trial judge granted a declaration in a form which was not sought by either party and which created further difficulties. The High Court was not permitted to resolve the issue concerning what uses the plaintiffs were entitled to make of the premises by acting, in effect, as a from of planning tribunal.

Reporter: L.O'S.

1

JUDGMENT delivered the 15th day of July 2004, by Keane C.J.

Introduction
2

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.

3

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.

4

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."

5

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."

6

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".

7

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.

8

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...

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