The Supreme Court Judgment

IntroductionOn January 22 1999 the Supreme Court delivered a ruling in the case of Butler & Ors. -v- The Lord Major of Dublin which reversed the finding of the High Court that the Irish Rugby Football Union (IRFU) had not been required to obtain planning permission to hold U2 concerts on August 30 and 31 1997 at Lansdowne Road, the national stadium of the Irish rugby team. In the light of this decision, it is clear that planning permission will not be required for the holding of 'occasional' future non-rugby events at the ground. For the purposes of the parties in the proceedings, the decision, by providing these findings, was an adequate one. However, the judgment, in terms of establishing an authority and setting a clear precedent, is a problematic one. With this issue certain to be raised again outside the facts scenario of Lansdowne Road, it is unfortunate the court could not resolve to form a single opinion on how this issue should be approached.

BackgroundOn June 30 1997, Dublin Corporation served a warning notice on the IRFU requiring that the concerts not go ahead as they were an "unauthorised use of lands". The trustees then sought judicial review to quash this warning notice. The High Court directed that the application should proceed by way of plenary summons. The parties agreed in the circumstances to allow the concerts to go ahead but Dublin Corporation withheld the right to assert their position retrospectively. The case was heard before Morris P. in January 1998. In a judgment delivered on February 19 1998, he refused the relief sought and declared that use of the grounds at Lansdowne Road for the holding of a pop concert and/or other musical/non-sporting events constituted a 'development' within the meaning of section 3 of the Local Government (Planning & Development) Act 1963, for which planning permission is required. Section 3 provides that 'development' means, save where the context otherwise requires, "the carrying out of any works on, in or under land or the making of any material change in the use of any structures or other land."The plaintiff contended that the planning effects of a pop concert are equivalent to a sporting event. However, in holding that there was a 'material difference in use' that required planning permission, Morris P. relied heavily on the evidence of Mr David Dunne, a qualified town planner. In giving evidence, he asserted that the following factors meant that there was a 'material change in use':
  • the length of the event, running for seven hours from around 5 p.m.;
  • amplified sound over at least two hours; and
  • adaption of a stadium that takes around seven days.

The Supreme Court JudgmentThe case was appealed to the Supreme Court and forms the matter of the case in point. The Supreme Court reversed the decision of the High Court and allowed the appeal, holding that occasional pop concerts (or similar events) at Lansdowne Road should not require planning permission. Mr Justice O'Flaherty and Mr Justice Keane delivered concurring written judgments in this respect. However, the means by which they came to this conclusion were different, if not conflicting. Mr Justice O'Flaherty delivering his judgment commented that:
    "It was solely on the ground of alteration and the level of noise during the U2 concerts that brought the learned president to the conclusion that material change of use was involved from the holding of sporting events in the ground."
Mr Justice O'Flaherty, however, accepted the appellant's submission that planning permission was entirely inappropriate for regulating the short-term effects that transient events such as pop concerts give rise to. He went on to set out what was the appropriate regulating measures:
  • section 91 Road Traffic Act 1961 which allows GardaĆ­ to divert, regulate and control traffic;
  • section 107 Environmental Protection Agency Act 1992 which allows the local authority to serve a notice requiring measures to be taken to prevent or limit noise; and
  • the Litter Act 1997.
Mr Justice O'Flaherty, in addressing section 3 of the Local Government (Planning & Development) Act 1963, argued that 'material change of use' would require something more than a temporary change and so planning permission was inappropriate for such a transient event. Mr Justice Keane disagreed in this regard. He noted that it is not expressly stated in the 1963 Act that the requirement for permission extends only to developments which are permanent and not temporary in their nature, something he feels is "hardly surprising". However, he argues that the legislation was not intended to apply to changes "so fleeting in nature" that they could not be regarded as material in planning terms. Mr Justice Keane proceeds to say that were these events to be such that they were not fleeting changes in use, then the character of the stadium would be regarded as materially altered in planning terms so as to come within the ambit of section 3. This use of what is described as the 'intensification of use' concept means that non-rugby events will not require planning permission only as long as they are kept on an occasional basis. Mr Justice O'Flaherty though is sceptical about employing the intensification of use concept. He notes that there is no mention of it in any statutory provision. He calls it a purely judge made concept in which he does not have much faith. Mr Justice Keane defends the concept arguing that although it has no statutory basis, the legislatures in both Ireland and England "must have envisaged that a particular use could be so altered in character by the volume of activities or operations being carried on that the original use must be regarded as having materially changed."There is a significant body of law in support of the intensification of use concept and it does seem to provide the best solution to the issue posed by the case. However, Mr Justice O'Flaherty's reluctance to accept it results in a further element being considered which serves to confuse matters, sets the judges at cross purposes and leaves the reader of the judgment unsure of the ratio. Mr Justice O'Flaherty sidesteps the issue of intensification of use by basing his judgment not on section 3 and its scope over the concerts but by reference to section 40 of the 1963 Act. He states,
    "what section 40 declares is that an occasional or temporary use aside from the usual use to which land is put is not to be regarded as a 'development'."
In concluding, Mr Justice O'Flaherty states that there should be a declaration that the holding of an occasional pop concert (or the like) at the Lansdowne Road ground comes within the description of occasional use contained in section 40 of the 1963 Act. To take this to be the ratio of his decision would mean that the comments he makes regarding section 3 and the intensification of use are obiter. However, the conflicting view of Mr Justice Keane in this context certainly forms the ratio of his decision.

ConclusionAs noted at the outset, the decisions give the same result for the parties to the action but does the judgment offer a clear precedent for future litigants? It is submitted that Mr Justice O'Flaherty reverts to section 40 of the Local Government (Planning & Development) Act 1963 as the basis of authority for his decision as a means of avoiding the difficult problems which his own interpretation of section 3 poses. By his analysis, a pop concert will always be a temporary event not subject to the regime of planning requirements. This could lead to the conclusion that these concerts, even if they were to be held on a regular basis, could still avoid requiring planning permission. Mr Justice O'Flaherty himself realises that this would be an unsatisfactory position but rather than advocating the intensification of use concept or some other means to police the advent of this scenario he chooses to avoid the issue and focuses his decision on section 40(b) of the 1963 Act which only covers 'occasional' use of land other than the normal use. The uncertain nature of this judgment may incline the reader to place more authority with the decision of Mr Justice Keane. On this basis it is concluded that section 3 of the 1963 Act will most likely continue to determine the issue with an 'intensification of use' likely to result in a 'material change in use' so as to require planning permission to be obtained. For further information on any of the above topics please contact Paul Eustace at Dillon Eustace by phone on +353 1 667 0022 or by fax on +353 1 667 0042.

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