MCD Management Services Ltd v Kildare County Council

• Jurisdiction: Ireland
• Judge: Laffoy J.
• Judgment Date: 16 June 1995
• Neutral Citation: 1995 WJSC-HC 4940
• Docket Number: Record No. 153JR/1995
• Court: High Court
• Date: 16 June 1995

MCD MANAGEMENT SERVICES LTD v. KILDARE CO COUNCIL

JUDICIAL REVIEW

BETWEEN

MCD MANAGEMENT SERVICES LIMITED

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF KILDARE

RESPONDENT

AND

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS, 1963 / 92

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF KILDARE

APPLICANT

AND

MCD MANAGEMENT SERVICES LIMITED

RESPONDENT

1995 WJSC-HC 4940

Record No. 153JR/1995

THE HIGH COURT

Synopsis:

PLANNING

Decision

Terms - Effect - Planning board - Direction - Interpretation - Documents relevant for purposes of such interpretation - Planning permission granted by planning authority subject to condition - Appeal restricted to condition - Direction of planning board that condition be excluded from permission - Local Government (Planning and Development) Act, 1963, s. 26 - Local Government (Planning and Development) Act, 1976, s. 27 - Local Government (Planning and Development) Act, 1992, s. 15 - (1995/153 JR - Laffoy J. - 16/6/95) - [1995] 2 ILRM 532

|MCD Management Services Ltd. v. Kildare County Council|

|Kildare County Council v. MCD Management Services Ltd.|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S15(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963–1993

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

READYMIX (EIRE) LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.7.74

EDMUNDS V SECRETARY OF STATE FOR WALES 81 JPL 52

WILSON V WEST SUSSEX CO COUNCIL 1963 2 QB 764

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)(b)

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S15(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)

CRODAUN HOMES LTD V KILDARE CO COUNCIL 1983 ILRM 1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S15

1 Judgment of Laffoy J. delivered on the 16th day of June, 1995.

2 On 12th October, 1967 the County Council of the County of Kildare (hereinafter referred to as "the Planning Authority") granted outline planning permission for a motor racing circuit at Donore, Naas in the County of Kildare subject to five conditions, one of which stipulated that, in the event of the track ceasing to operate for the purposes referred to in the outline permission, the developers should remove the structures and undertake the reinstatement of the land. It is common case that this outline planning permission, on foot of which an unconditional planning approval was granted on 15th December, 1967, remains the governing planning permission for the lands at Donore which are now commonly known as Mondello Park Racing Circuit.

3 On 19th February, 1992 the Planning Authority received an application from Mondello Park Sports Limited for "Permission/Retention" at Mondello Park Racing Circuit, Clane, County Kildare. On the Planning Application form the short description of the proposed development/work was given as follows:

"Retention of existing structures and erection of shed? G'stand and footbridge".

4 The existing use of the property was described as "race circuit" on the form and it was further stated to be "currently in use."

5 Notice of the application had been published in the Evening Press on the 5th February, 1992, the advertisement being in the following terms:

"County Kildare. Permission sought for the retention of stores, hospitality buildings, toilets, fourth floor of control tower, ancillary buildings and rally cross circuit. Planning permission also sought for the erection of advertising hoardings, new grand stand, footbridge, scrutiny hut, and the relocation of an existing grand stand at Mondello Park Motor Racing Circuit, Clane. Signed Mondello Park Sports Limited."

6 All of the documentation submitted to the Planning Authority in relation to the application has not been put in evidence. However, what is clear is that by letter dated 27th June, 1993, the Applicant, through its Architect, David Byers MRIAI, formally withdrew the rally cross circuit from the application. On the directions of the Planning Authority a revised application notice was published in the Irish Press on 14th December, 1993. This advertisement read:

"County Kildare. Permission sought for the retention of stores, hospitality buildings, toilets, fourth floor of control tower, ancillary buildings. Also erection of advertising hoardings, new grandstand, footbridge, scrutiny hut and relocation of existing grandstand at Mondello Park Motor Racing Circuit, Donore, Naas, County Kildare - Mondello Park Sports Limited."

7 The application was designated reference 190/92 in the planning register by the Planning Authority.

8 On 18th May, 1994 the Planning Authority issued a notification of decision to grant permission on foot of application reference 190/92 subject to eleven conditions. In the notification the nature of the development sanctioned was described as follows:

"Retention of stores, hospitality buildings, toilets, fourth floor of control tower, ancillary buildings. Also erection of advertising hoardings, new grandstand, footbridge, scrutiny hut and the relocation of an existing grandstand at Mondello Park Motor Racing Circuit, Donore, Naas, County Kildare."

9 Condition 1 stipulated that the development should be retained and carried out in accordance with the documents, drawings and particulars submitted to the Planning Authority on 19th February, 1992, 30th June, 1993, 15th December, 1993 and 21st March, 1994 except where altered or amended by the conditions in the permission and the reason ascribed for this condition was to enable the Planning Authority to check the proposed development when completed, by reference to approved particulars. Condition 3, which primarily gives rise to the issues in these proceedings, stipulated as follows:

"The overall development shall be used solely for the operation of motor vehicle racing. Any alternative uses, including concerts, and any retail sales or markets of any kind, shall be the subject of prior planning application in each case."

10 The reason ascribed for the imposition of the foregoing condition was stated as follows:

"To limit the use of the overall complex to the uses for which planning permission already exists, and to prevent unauthorised development".

11 Mondello Park Sports Limited appealed to An Bord Pleanala (hereinafter referred to as "the Board") against two of the conditions, namely, Condition 3, and also Condition 11, which is not germane to the issues in these proceedings. As the contents of the Appeal document are central to the primary issue I have to determine in these proceedings, I consider it necessary to quote from it at some length. The Appeal document was in the form of a letter dated 16th June, 1994 from the Appellant's Architect, David Byers MRIAI, to the Board (hereinafter referred to as "the Appeal Letter"). In relation to the appeal against the imposition of Condition 3 the following grounds were set out and arguments advanced in the Appeal Letter:

"We accept that it is proper that the Planning Authority should seek to regulate activities on site. However, the wording of this condition could be said to be too restrictive in that it might be taken to mean that we could not sell refreshments, food, etc. to spectators at events or include non-racing attractions within race day schedules. While Condition 3 refers to the original planning permission it is more restrictive in its wording and my client would ask that the wider definitions contained in the original planning permission be accepted as being applicable."

12 In addition, it is part of the Circuit business plan to develop the venue for uses other than motor racing in order for it to remain economically viable to carry on as a motor sport facility.

13 Because they require such a high degree of investment in track maintenance and safety arrangements, all motor sport venues seek to increase their income from other, non-racing related activities.

14 It would be the intention of the Circuit operating company to run markets and concerts at the venue but my client feels that the requirement to apply for permission in each case is a particularly onerous and expensive imposition given the length of time it has taken to arrive at the present situation vis-a-vis planning control.

15 Notwithstanding my client's concern outlined above, my client recognises that they cannot expect to be allowed to run anything they like whenever they want to without regard to the convenience of others so we propose the following:

16 We would ask that the condition as written be varied to allow a certain amount of retail markets and concerts subject to conditions as may seem fair and reasonable to you.

17 We would further ask that the following conditions be considered by you as acceptable.

MARKETS:

18 1. As markets were run on the site in the past we would propose that they be run within the same area as previously (see attached map) with parking for same being provided in the adjoining field.

19 2. No more that 40 markets to be run each year with 75% of them run on the same Sunday as a motor race meeting to minimise traffic inconvenience to the locality.

20 3. My client warrants to comply with the requirements of the Garda and the relative health authorities.

CONCERTS:

21 1. All music concerts to be run in the same area as the market zone (see above).

22 2. As concerts and race meetings will not be taking place at the same time we feel that we have adequate parking in several areas of the site for concert patrons.

23 3. We recognise that badly organised music events can cause annoyance to neighbours so, in common with venues...