Mountcharles v Meath County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 01 January 1997
• Neutral Citation: [1996] IEHC 43
• Docket Number: [1996 No. 282 JR]
• Court: High Court
• Date: 01 January 1997

[1996] IEHC 43

THE HIGH COURT

No. JR 282/1996

MOUNTCHARLES v. MEATH CO COUNCIL

JUDICIAL REVIEW

BETWEEN

LORD HENRY MOUNTCHARLES, THE EARL OF MOUNTCHARLES

APPLICANT

AND

MEATH COUNTY COUNCIL

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT S26(3A)

WEBBER V MIN OF HOUSING & LOCAL GOVT 1967 3 AER 981

TOWN & COUNTRY PLANNING ACT 1962 S45(2)(a)

SOUTH BUCKINGHAMSHIRE DISTRICT COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT 58 P & CR 121

TOWN & COUNTRY PLANNING GENERAL DEVELOPMENT ORDER 1977 ART 4

TOWN & COUNTRY PLANNING & DEVELOPMENT ORDER 1977 ART 3

TOWN & COUNTRY PLANNING & DEVELOPMENT ORDER 1977 SCHED 1 ART 4

Synopsis:

PLANNING

Judicial review - planning application to quash warning notice - holding of open air concerts without planning permission - whether warning notice time barred by s.26(3A) Local Government (Planning and Development) Act, 1963 - question of unauthorised use - whether material change of use for short periods require planning permission - whether holding of concerts constitute normal use of lands - test of normal use - question of fact - Held: Application failed - holding of concerts not normal use of lands - occasional use - (High Court: Kelly J. - 17/12/1996)

|Lord Henry Mountcharles v. Meath County Council|

1 Judgment of Mr. Justice Kelly delivered on the 17th day of December 1996

INTRODUCTION

2 The Applicant is the owner of Slane Castle Demesne, County Meath. That estate comprises in excess of 600 acres of land. The Respondent is the planning authority for the in which the demesne is situate.

3 In these proceedings the Applicant seeks to quash a Warning Notice which was served on him pursuant to Section 26 of the Local Government (Planning & Development) Act, 1976as amended. That Notice was dated the 17th September, 1996. It recited that it appeared to the Respondent that an unauthorised use of part of Slane Castle Estate was likely to be made by the carrying on of an unauthorised musical concert or performance thereon. The Notice went on to require that this unauthorised use should not commence. In addition, it warned that proceedings might be taken if there was a failure to comply with the requirements of the Notice.

4 In order to understand the basis upon which it is said this Notice should be quashed, it is necessary that I set forth a brief history of the lands in respect of which the notice was served.

HISTORY OF THE LANDS

5 Up until 1981, the lands in respects of which the Notice was served had been used purely for agricultural purposes. These lands, which amount to about 22 acres in all, are part of the entire demesne which has at all material times been used for agricultural purposes.

6 In 1981, there was held on these lands, the first of a series of open air conterts. Planning permission was not sought for this or any of the subsequent concerts which were held on the same site. Similar open air concerts were held in 1982, 1984, 1985, 1986, 1987, 1992, 1993 and 1995.

7 These open air concerts attracted very large numbers of people ranging from a few as 20,000 to as many as 100,000 approximately.

8 The evidence satisfies me that these concerts were of considerable assistance to the local economy but I am also satisfied that they gave rise to a good deal of disquiet on the part of persons resident in the general area.

9 The Affidavit of Mr. Foley sworn on behalf of the Respondent sets out in considerable detail the sort of problems which were encountered with these concerts going right back to 1982. These difficulties included robberies, violence, riots, drug offences, drunkenness, stabbings and drownings. So bad was the situation that on one occasion the local District Judge held a special sitting of the District Court in Slane Village from 10.00 a.m. to 10.00 p.m. on the day of the concert in order to deal with offenders.

10 In the light of this evidence, I do not accept the contention made on oath by the Applicant that every open air concert "passed off without major incident".

11 Given this history, it is perhaps remarkable that the Respondent did not take any action of the type which is now challenged in these proceedings until the current year.

12 As far back as 1984, the Respondent was engaged in correspondence with the Department of the Environment arising out of the problems encountered at the open air rock concert of that year. In subsequent years, such correspondence was conducted with the Departments of Justice and the Environment.

13 Far from seeking to restrain such events as being in breach of the Planning Acts, the local authority cooperated in the organisation of these concerts from 1992 onwards. Mr. Foley confirms in his Affidavits that consultations involving the Respondent have taken place concerning the organisation of these concerts since 1992. There has been exhibited the minutes of meetings held in 1995 to plan for the concert of that year which were attended by officials of the Respondent with no suggestion being made that such an event required planning permission.

14 All of this changed in 1996. I am told by Counsel that the reason for this change was that, for the first time, the Respondent in common with other local authorities realised that concerts of this type might fall within the ambit of the Planning Act. That was, it is said, not generally appreciated prior to the present year.

EVENTS IN 1996

15 On the 9th April, 1996, the Respondent wrote to the Applicant advising him that it was the Respondent's opinion that the holding of a concert at Slane Castle was a development which required planning permission. He was furthermore informed that if he wished to hold any such concert in the future, he would have to obtain such a permission. This letter was respondent to on the 18th April, 1996 and a meeting took place between the Applicant and the Respondent's representatives on the 23rd May, 1996. At that meeting, the Respondent's representatives made it quite clear that planning permission would be required for any open air concert in the future. Because of this, the Applicant announced that no concert would take place in 1996 nor did one.

16 On the 23rd July, 1996, the Applicant wrote to the Respondent indicating that he had obtained the advice of Counsel. I set out that letter in full:-

"Dear Mr. Rogers,

Re; Slane Concert Site "

Further to our meeting on the 23rd May, I am writing to inform you that I have now had the opportunity of receiving Counsel's opinion. I referred the matter to Mr. Philip O'Sullivan, whom I believe is well known to you.

Following his advice, I am now writing formally to inform you that I am immediately entering into negotiations for a Concert in July 1997. I have been advised that I am entitled to do so on the basis of long or established user since 1981. Furthermore, I am advised that the Council would be estopped from taking enforcement proceedings to prevent a concert in 1997. I am also advised that a this is the normal use of the land stretching back to 1981, and I concur with your view that the use is unauthorised, that it would not be relevant to refer the matter to An Bord Pleanala as they can only provide, under Section 5, a decision as to what in any particular case is or is not development (requiring planning permission) or exempt development.

I am, therefore, giving formal notice of my intention to proceed with confirmation of the 1997 concert within two weeks after today's date. At our lengthy meeting on the 23rd May, it was clear that you had considered in detail the Council's position under the Planning Acts, vis-à-vis the concert we had arranged for this year. When we asked you what action you would take if we announced a concert and put tickets on sale, you stated "we might injunct you". This notice will in all the circumstances, provide the Council with ample opportunity to apply for an injunction, or of at least writing to me confirming its intention of doing so. should it be opposed to this concert taking place. I would ask you to note that there is extensive long term planning required in preparation for the Concert and the artists in question are at an advanced stage in confirming their 1997 World Tour commitments. Confirmation, therefore, of the 1997 concert at Slane must be given within two weeks after the today's date and it is, therefore, most urgent that I hear from you within this period.

Should it be beneficial for you, both Mr. McCann and myself are only too willing to arrange a meeting to discuss the matter with you within the aforesaid two week period. I am currently in London, returning on Wednesday or Thursday.

Yours sincerely,

The Earl of Mountcharles."

17 That letter was replied to on the 2nd August, 1996 in the following terms:-

"A chara,"

18 I refer to your letter of the 23rd July 1996. I note your acceptance that the use of land at Slane for the holding of a concert is unauthorised. This being the case, planning permission is required to stage a concert.

19 The Council has been legally advised that each concert is a development and as such the limitation and enforcement proceedings, referred to by you, would not be applicable. The Council are obliged to ensure that the planning laws are complied with . If you decide to proceed with your plans to stage a concert in 1997 without planning permission, the Council will be left with no option but to refer the matter to the Court.

20 If you intend to proceed with plans for a further concert, I respectfully suggest that the proper course for you to adopt would be to submit an appropriate planning application. I confirm that Council officials are available for pre-planning consultation should you wish to have same. If, however, it is your intention to go ahead with the concert...