Grimes v Punchestown Developments Company Ltd

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 20 December 2002
• Neutral Citation: [2002] IESC 79
• Court: Supreme Court
• Docket Number: [S.C. No. 221 of 2000]
• Date: 20 December 2002

GRIMES v. PUNCHESTOWN DEVELOPMENTS CO LTD & MCD PROMOTIONS LTD

IN THE MATTER OF THE PLANNING ACTS AND

IN THE MATTER OF S. 27 OF THE LOCAL GOVERNMENT(PLANNING AND DEVELOPMENT) ACT, 1976 AND

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1992

BETWEEN/

TOMMY GRIMES

Applicant/Appellant

and

PUNCHESTOWN DEVELOPMENTS COMPANY LIMITED AND MCD PROMOTIONS LIMITED

Respondents

[2002] IESC 79

Denham J.

Hardiman J.

McCracken J.

Record No. 221/00

THE SUPREME COURT

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Injunction

Time - Application for injunction refused by High Court - Costs awarded against applicant - Whether normal rule that costs follow event applies - Factors to consider when departing from normal rule - Delay by respondents in filing reply - Whether respondents culpable - Whether significance should be placed on public watchdog nature by which section 27 enabled member of public to take action in deciding issue of costs - Local Government (Planning and Development) Act 1963, section 40 - Local Government (Planning and Development) Act 1976, section 27 (221/2000 - Supreme Court - 20/12/02)

Grimes v Punchestown Developments Co. Ltd - [2002] 4 IR 515

Facts: the High Court refused to grant the applicant an injunction under section 27 of the Local Government (Planning and Development) Act 1976 preventing the respondents from holding a concert at Punchestown racecourse and ordered that he pay the respondents their costs of the proceedings. The applicant appealed the order as to costs on the grounds that significance should be placed on the public watchdog nature by which section 27 enabled a member of the public to take action and on the fact that the respondents had filed a replying affidavit a day before the hearing of the motion.

Held by Denham J in dismissing the appeal that the applicant had not discharged the burden of showing that the order for costs should not follow the general rule that costs follow the event as, inter alia, there was no basis for the applicant to succeed on any alleged delay by the respondents in filing an affidavit as the time frame had been one created by the applicant himself. The ground that section 27 of the Act of 1976 created a watchdog role for a member of the public such as the applicant had not been argued before the High Court and accordingly, could not be raised on an appeal.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1994

BUTLER V DUBLIN CORPORATION 1999 1 IR 565

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

WHITE V MCINRNEY CONSTRUCTION LTD 1995 1 ILRM 374

AVENUE PROPERTIES LTD & JOHN MCCABE V FARRELL HOMES LTD 1982 ILRM 21

DONEGAL CO COUNCIL V O'DONNELL UNREP O'HANLON 25.6.1982 1982/11/1958

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26

F V IRELAND & AG UNREP SUPREME 27.7.1995

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

1 20th day of December, 2002 by Denham J.

Denham J.

1. Appeal

2 Tommy Grimes, the applicant/appellant, hereinafter referred to as the applicant, brought proceedings under s. 27 of the Local Government (Planning and Development) Act, 1976as amended for an injunction restraining Punchestown Developments Company Limited and MCD Promotions Limited, the respondents, hereinafter referred to as the respondents, from holding a "rave" concert at Punchestown Race Course on the 24 ^th and 25 ^th day of June, 2000. The only matter in issue on this appeal is the order as to costs.

3 The relevant grounds of the appeal filed were as follows:

4 2 "1. That the Learned Trial Judge erred in law and/or in fact in the exercise of his discretion in making an order that the Applicant do pay to the Respondents their costs of the proceedings when taxed and ascertained.

5 2. That the Learned Trial Judge erred in law and and/or in fact:

6 a A In holding the Applicant liable for costs in circumstances whereby he had in correspondence asked the Respondents if permission had been granted to which the only information furnished related to an entirely different concert.

7 b B. In holding the Applicant liable for costs in circumstances whereby the only avenue open to the Applicant, in light of the planning permission restrictions was by way of Section 27 proceedings whereby in relation to an intended concert at Fairyhouse to be held by the second named Respondent judicial review proceedings seeking to restrain An Bord Pleanala from hearing the said declaratory application were brought by the said second named Respondent and thereby prevent any such determination by An Bord Pleanala.

8 c C. In that he failed to have any or any due regard to the fact that the information in relation to prior use in relation to concerts or similar events was advanced on the eve of the hearing in circumstances whereby the said information must have been available to them long prior to the initial requests of the Applicant.

9 ..."

2. Facts

10 The applicant commenced proceedings by way of notice of motion dated the 16 ^th day of June, 2000 grounded upon an affidavit of the same date. The solicitors of the applicant had written to the respondents on the 14 ^th June, 2000 stating, inter alia:

"We act for the above named client who instructs that he objects to the holding of a concert at Punchestown on the above date.

The reasons for our client's objections are that the holding of the concert is a clear abuse of the Planning Process. There is no Planning Permission for the holding of such an event and it is clear from the Planning Permission granted in 1998 that there is an express prohibition on such concerts as set out in Condition No. 8 Register Ref. No. 1258/98. There is no prior history of such events being held at this venue. The facilities and surrounding area do not have the capacity to deal with the substantial numbers of people involved, giving rise to serious concerns for public health and safety risks, additionally this event will cause substantial inconvenience and disruption which will be caused to those living in the locality. It is also clear from our instructions that there is substantial local disquiet in relation to the holding of this event.

Our client is, furthermore, concerned that this concert was advertised as a "Rave Concert".

As you are aware, this concert is advertised as running until 2.30 a.m. which exceeds the times already sought through Planning Permission.

While Planning Permission has been sought under Planning Ref. No. 99/1752, this Planning Permission has not, in fact, been granted and we note that Kildare County Council have requested additional information as per their letter of the 6 ^th April, 2000 addressed to Punchestown Developments Company Limited c/o James Toomey Architects, Powerscourt Townhouse Centre, 59 South William Street, Dublin 2.

In all the above circumstances, it is quite clear that the entire concert is unauthorised and unless you confirm within a period of twenty four hours that no such concert will proceed, an application will be made by our client pursuant to Section 27 of the Planning Act, 1976, as amended by Local Government (Planning & Development Act) 1994seeking an Order restraining you from holding this event.

This was the first notification to the respondents of the applicant's objections. Solicitors on behalf of the second named respondent replied by letter dated the 16 ^th June, 2000. That letter stated:

"We act on behalf of MCD Management Services Limited of 7 Park Road, Dun Laoghaire, Co. Dublin.

Your letter addressed to Mr. Denis Desmond of MCD Management Services Limited has been passed onto this office to deal with.

You have expressed concerns about the Creamfields concert which is scheduled to take place at Punchestown on the 24 ^th of June next. We have carefully considered the contents of your letter which displays a fundamental lack of understanding of the current legal position regarding the holding of transient events of this nature. The Supreme Court have indicated in Butler v. Dublin Corporation (1999) 1 I.R. 565 that planning legislation does not apply to transient events. Keane J. indicated that "the radical controls imposed by(planning) legislation were not intended to apply to changes in use which were so fleeting in their nature that they could properly be regarded as not material in planning terms." The Creamfields event does not involve any change in the use of the lands, any such change, which is denied, is not material in planning terms as the planning effects of this event are equivalent to those of sporting or racing events. Furthermore the staging of this event involves no change in the use of the lands and its authorised pre-1964 use is a place of public resort and/or public entertainment.

We fundamentally disagree with your suggestion that Condition no. 8 of Register ref. 1258/98 is of relevance here. Each of these applications, should it be necessary to make same, which is denied in this case, is to be taken on its merits. In any event we understand that a submission has been made to Kildare County Council in respect of a proposed concert by the artist Charlotte Church and at that time, it was confirmed by the County Council that planning permission was not required for such an event. On this basis, it was clearly not necessary for Punchestown to make an application for planning permission for this concert.

In your letter, you raise alleged concerns about inconvenience and disruption to those caused in the locality. The existence of this event has been in the public domain for some months, extensive consultation has taken place in the locality and this is the first letter or complaint that our client has received from Mr. Grimes who we understand is a resident of Kells which is many miles away from Punchestown. The time for your client to object to this concert has long since expired and an application for an...