19
February 1998
MORRIS
J:
Background.
The
plaintiffs are the trustees of the Irish Rugby Football Union (IRFU) and in
that capacity are the body responsible for the control and management of their
headquarters situate at Lansdowne Road, Ballsbridge, Dublin 4. This is a
stadium with a capacity of 47,000 at sporting fixtures and 42,500 for concert
events. The stadium is situate in a built up residential area having Lansdowne
Road on its southern end and Havelock Square and Vavissour Square on the
northern end. The main entrances to the ground are from Lansdowne Road and
Havelock Square. The ground has been in existence for upwards of 140 years but
the facilities such as stands, changing rooms, pavilions etc have been extended
from time to time down the years. The most recent addition to the stadium has
been the instillation of floodlighting in the grounds in or about the year
1992. The grounds at Lansdowne Road are one of three venues in Dublin
considered by promoters of pop concerts to be suitable for the staging of open
air pop concerts (the other two being Croke Park and the grounds of the Royal
Dublin Society (the RDS)). The grounds at Lansdowne Road have been used for the
staging of pop concerts from time to time. I will deal with these events in
more detail later on in this judgment. So far as the promoters and the IRFU are
concerned the grounds have been found to be suitable for the staging of these
pop concerts. Mr Oliver Barry who is a well known promoter of events such as
pop concerts and who has given evidence in the case has told the court that he
has entered into an arrangement with the IRFU whereby he would propose, if
permitted, to stage up to three such concerts annually in the grounds and the
plaintiffs have agreed to his doing so subject to arranging the details
relevant to any such concert.
In
the summer of 1997 Mr Barry had proposed to stage two pop concerts at the
grounds at Lansdowne Road. These were to be given by U2, an internationally
famous pop group. These concerts were scheduled to take place on the 30 and 31
August, 1997. The Dublin Corporation had under consideration for some time the
decision given by Kelly, J in Lord Henry Mountcharles v Meath County Council
[1997] 1 ILRM 446. This judgment was delivered on the 17 December, 1996. The
Corporation formed the view that the holding of the proposed concerts by U2 at
the Lansdowne Road grounds constituted an unauthorised use of the lands by the
IRFU and by notice dated the 30 June, 1997 (the section 26 notice) they
required that the "said unauthorised use of the lands shall not take place as
proposed" and required that the IRFU "ensure compliance with this notice". This
warning notice was served pursuant to
section 26 of the
Local Government
(Planning and Development) Act, 1976 as amended by section 30(3) of the
Local
Government (Planning and Development) Act, 1992.
By
the time this notice came to be served plans for the staging of the concert had
reached an advanced stage. Significant advertising costs had been incurred, the
artists had been booked, tickets had been sold and accordingly an agreement was
reached between the parties whereby it was agreed that the concerts would be
held in the grounds on the understanding that they would take place on a
"without prejudice" basis. This, I take to mean, that the IRFU would not rely
upon the fact that these concerts took place as evidence in support of a case
that the lands had acquired an established user such as would render them
immune from prosecution. In a letter of the 30 July, 1997 the IRFU undertook to
institute the present proceedings "to seek declaratory orders regarding the
staging of concerts . . . in Lansdowne Road". It also undertook not to stage
any further concerts pending the determination of the issues in court.
It
is in these circumstances that the matter comes before the court.
The
Evidence.
The
concerts went ahead on the 30/31 August, 1997 and the IRFU engaged the services
of a number of experts to monitor the impact which the concerts made on the
locality. The results of these surveys have been tendered to the court. These,
I am taking, as a profile of a typical pop concert. I have been told that U2
would be considered to be among the groups most likely to generate the highest
amount of noise during a concert. However I am taking these statistics as the
norm for pop concerts for two reasons. In the first instance these are the only
statistics which I have been offered. The second and, from a practical point of
view, the more important is that since I am required to provide the parties
with findings of fact in relation to the impact which the holding of "pop
concerts" are likely to have on the locality I believe that the higher scale
should be used so that if there is a finding of the court in favour of the
plaintiffs then they would know that they would be free to hold "pop concerts"
up to and including the degree of impact generated by U2. Findings of fact
based upon statistics generated from a tranquil concert would be valueless to
the parties when precisely the same issues would arise on the next occasion
upon which a group such as U2 were being brought to Lansdowne Road.
The
data and statistics gathered during the U2 concert are crucial in the
determination of the question of material change of user.
The
comparisons made between the Lansdowne Road position and that of Croke Park and
the Royal Dublin Society grounds.
A
considerable time was devoted during the hearing of this action to a comparison
of the treatment which was given to the GAA in their dealings with Dublin
Corporation when the grounds at Croke Park were under review and also the
treatment given to the Royal Dublin Society when their grounds in Ballsbridge
were being considered by the Corporation. Counsel for the plaintiffs made
submissions to the court that could be broadly interpreted as suggesting that
the IRFU would be entitled to be treated in the same way as the owners of the
other two grounds. I do not accept this as the correct basis upon which the
issues in this case should be approached. I am of the view that in each case
the Corporation must deal with the relevant problem in accordance with the
Planning Acts. For instance in the case of the RDS it is clear that the
decision reached by the Corporation was based upon the fact that the user of
the lands by the RDS over a period of five years rendered it immune from
proceedings by the Corporation. In my view it would be wrong to assume that all
land acquired such a status or would be entitled to be dealt with on that basis.
Counsel
for the plaintiffs Mr Allen, SC, has formulated four or perhaps five
submissions and I propose to deal with the case upon the basis of those four
submissions rather than on a comparison with any other lands.
The
Issues.
While
in the pleadings delivered in this case declaratory reliefs are sought the
issues which the court is required to determine can in my view be dealt with by
a consideration of the submissions made by Mr Allen, SC, on behalf of the
plaintiffs. These are identified on pages 2 and 3 of the written submissions
furnished to the court and I now propose to deal with them in the order in
which they appear.
I.
The staging of pop concerts involves no change in the use of the lands from its
pre 1964 authorised use as a national public stadium.
This
submission must be considered in two parts. The first part relates to the
acquisition by the lands of a pre 1964 use for the staging of events other than
sporting events. It is submitted on behalf of the plaintiffs that an
examination of the records kept by the IRFU show that between 1876 and 1964 the
lands have been used for purposes other than sporting use and it is submitted
that the use of the lands for the staging of non-sporting events is a second
pre 1964 use which the land had acquired.
An
examination of the IRFU records (which are set out in the plaintiffs reply to
Notice for Particulars dated January, 1998 show that only on five occasions
between 1876 and 1957 which is the last relevant date prior to 1964 have the
lands been used for anything other than sporting events and that on only two of
these occasions (The Military Tattoo held in 1929 and the All Ireland Pipe Band
Championships in 1950) were musical events staged.
I
have no hesitation in coming to the conclusion that given the infrequent and
rare occasions upon which the land was used for this purpose prior to 1964 it
had not acquired this use as a normal use in addition to its use for the
staging of sporting events.
The
second part of this submission centres around the proposition that the use of
the lands for sporting events and the use of the lands for the staging of pop
concerts relates so closely one to the other that there is no material change
of use. This aspect of the matter is dealt with in the next submission.
II.
In so far as the staging of pop concerts involves any change of use of the
lands (which is denied) and such change is not material in planning terms: the
planning affects of a pop concert are equivalent to those of a sporting event.
It
is in relation to this submission that the data gained during the holding of
the U2 concerts and other sporting events becomes a material.
I
accept the evidence of Miss Auveen Byrne, Consultant Town Planner that three
events were monitored in Lansdowne Road that is to say firstly the two U2
concerts held on the 30/31 August, 1997 secondly the Ireland v Belgium World
Cup Soccer Match held on the 29 October, 1997 and thirdly the Ireland v New
Zealand Rugby Match held on the 15 November, 1997. These functions were
attended respectively by 42,500, 32,425 and 47,000 people. Monitoring was
carried out under the following headings duration, pedestrian flows, traffic,
parking, light spillage, litter, noise event, noise non-event.
In
addition to Miss Byrne I have had the benefit of the evidence of Mr David Dunne
who is senior Planner with the Dublin Corporation and an expert on Town
Planning. I am satisfied that Miss Byrne and Mr Dunne have considered the
impact generated by the U2 concerts and compared them to the impact generated
by the soccer match and the rugby match and that they are in agreement that
other factors other than event noise are of no relevance. It is Miss Byrne's
view that the difference in event noise is not material. It is in Mr Dunne's
view that it is.
I
have considered the event noise evidence in relation to the soccer match held
on the 29 October. This shows that over a period from 19.15 to 21.15 the
accepted standard of 75 decibels was exceeded on seven occasions. Compared to
the U2 concert held on the 30 August, 1997 between 19.15 and after midnight
(when monitoring ended) the level of 75 decibels was exceeded at all stages and
the noise level reached 88 decibels and for the entire of the time was between
80 and 90 decibels. This reading was taken at No 61 Lansdowne Road which is in
fact a non-residential property but is one of a line of attached houses.
In
addition to that evidence I have heard the evidence of Mrs Brigid Guinevan and
Mr Brendan Kinsella two residents in the locality of Lansdowne Road. I regard
them as reasonable and truthful witnesses. I accept their evidence that during
the U2 concert the noise levels were such as to cause MrsGuinevan grave
distress and in addition caused one of her neighbours to react so violently
that the promoters of the concert moved her out to hotel accommodation for the
duration of the concerts and that she suffered significantly from the effects
of the noise. I also accept the evidence of Mr Kinsella that the amplified
noise was such that one could not read, that the television would jump so that
one could not watch it, one could not work and was quite different to the noise
generated by a football match about which he had no complaint. He made
complaints to his public representatives and to the Corporation in relation to
the holding of pop concerts in Lansdowne Road.
I
have heard the evidence of Mr John Staunton an Accoustics Consultant who
carried out monitoring operations during the concert. I accept his evidence
that prior to and during the U2 concert he became aware of the fact that noise
limits were being exceeded and that on this being reported to those in control
he failed to get "co-operation" from them, which I take to mean that they did
not and would not lower the volume even though there was a facility available
for them to do so.
I
am satisfied that the alteration in the level of noise and the duration of the
noise during the holding of the U2 concerts represented a material change of
use from the holding of sporting fixtures in the grounds. In approaching this
issue I respectfully agree with the view expressed by Keane, J in Monaghan
County Council v Brogan [1987] IR 333 that the question of whether there has
been a material change of use is a matter of fact to be determined by the court
rather than adopt the test proposed by Barron, J in Galway County Council v
Lackagh Road Limited [1985] IR 120.
As
a question of fact I am satisfied beyond any possible doubt that the change in
the level of noise and the duration of the noise is such as to constitute a
material change of the use of the lands within the meaning of
section 3 of the
1963 Act and constitutes a development.
II.
& IV. Further or in the alternative the planning legislation is not
intended to apply to transient events such as one or two days pop concerts "on
the lands".
Counsel
makes the submission without authority to support it. It appears to me that the
submission is without foundation. Nowhere in the definition of a development is
there an exclusion for a temporary use. On the contrary regulations made under
the Planning Acts 1963 to 1993 provide for specific exemptions for certain
temporary or transient structures. These are to be found in Articles 9, 10 and
11 of the Local Government (Planning and Development) Regulations 1994 and Part
1 of the second schedule thereof in respect of temporary structures and uses
(Classes 14 to 18), development for amenity and recreational purposes (Classes
30 to 32) and miscellaneous (Classes 33 to 37). If counsel's submission were
correct it would seem to me that it would be unnecessary for provision to be
made for the exemption of developments, for instance, associated with the visit
of a foreign dignitary or delegation or for development consisting of
occasional use for social or recreational purposes of a school hall, club, art
gallery, museum, library, reading room, gymnasium or any structure normally
used for public worship or religious instruction.
Moreover
it would appear that this submission runs contrary to the applicants own belief
when on the occasion of American Football Matches held in their grounds on the
19 November, 1988 and the 2 December, 1989 they applied for Planning Permission
for the erection of a temporary scoreboard.
V.
If which is denied the staging of pop concerts does involve a material change
in the use of the lands then the unauthorised use is now immune from
enforcement action under the five year time limits in particular under section
26(3a) of the Local Government Planning and Development Act 1976 (as inserted
by section 19(4)(e) of the Local Government Planning and Development Act 1992.
The
consideration of this point requires the court to make certain findings of fact.
The
section 26 notice in this case is dated the 30 June 1997.
The
relevant part of the amended 1976 Act provides as follows:-
"A
warning notice in relation to any unauthorised use of land shall not be served
after the expiration of a period of five years beginning on the day on which
such unauthorised use first commenced".
Since
1964 the following concerts have been held in Lansdowne Road;
(a)
"The ultimate event" at which Frank Sinatra, Lisa Minnelli and Samy Davis
performed on the 3 and 4 May, 1989.
(b)
A Michael Jackson concert on the 25 July, 1992.
(c)
A Voices of the World concert on the 23 September, 1995.
(d)
Celine Dion concert on the 12 June, 1997.
It
is the plaintiffs case that if the use of the lands for the holding of concerts
was an unauthorised use then this commenced on or before the 3 May, 1989 and
since it continued for five years the lands became immune from the service of a
section 26 notice on the 3 May, 1994.
I
have been referred to the decision of Mr Justice Kelly in Lord Henry
Mountcharles v Meath County Council 1997 ILRM 446 in which he held as follows;
"Lands
may have as part of its normal use different particular uses or activities. The
question of whether particular activities form part of the normal use of land
is a question of fact and degree in each particular case. In order for a
particular activity to be regarded as part of the normal use of the land it
must be recurrent and would have to account for a substantial part of the total
amount of activities taking place on the land . . ."
In
the particular circumstances of this case Mr Justice Kelly found that the
staging of pop concerts constituted only an occasional or exceptional use of
the lands since the lands were only held for the purpose of pop concerts on
nine occasions in fifteen years. He held that the holding of pop concerts had
not become part of the normal use of the land.
In
reaching his conclusions Mr Justice Kelly considered the approach adopted by
the Court of Appeal in Webber v Minister for Housing and Local Government 1968
1 WLR 29 and he expressed himself in agreement with that approach.
I
have considered both Webber's case and the decision of Mr Justice Kelly in the
Mountcharles case and I respectfully agree with his approach and the
conclusions that he draws. I specifically express myself in agreement as
counsel has submitted that the Mountcharles case was wrongly decided. I do not
agree with counsel.
Accordingly
I look to the normal use made of the Lansdowne Road grounds down through the
years. If one starts in 1876 one can identify only nine events involving music.
For the purpose of applying the appropriate test I propose to assume that each
of these events was a "pop concert" even though it is likely that they were
nothing like as noisy. The remainder of the events were sporting that is to say
used for sports other than rugby or soccer matches. Whether one looks at the
entire of the history of the grounds from 1876 or takes the immediate five
years prior to the 30 June 1997 or the five years subsequent to that date or
indeed any other period in between I am of the view that one must come to the
conclusion that the grounds at Lansdowne Road were only used on rare occasions
for the staging of musical events. In the previous five years prior to the 30
June, 1997 one had the Celine Dion concert the Voices of the World concert and
the Michael Jackson concert. I cannot believe that this could be regarded as a
normal use for the premises. Like Mr Justice Kelly in the Mountcharles case I
do not believe that the activity was sufficiently recurrent nor do I believe
that it accounted for a sufficiently substantial part of the total amount of
activity taking place on the lands to be so regarded.
I
am in agreement with the test proposed by Diplock, LJ, as he then was in
determining this issue which was "providing that each activity is recurrent and
accounts for a substantial part of the normal activity taking place on the
lands during the appropriate period to be taken for determining that use is
made of the land the natural answer to the question "what use is made of the
land" is in my view it was used for two activities".
In
my view the use of the land for the staging of concerts was not recurrent and
did not account for a substantial part of the total activity taking place on
the land and accordingly this submission fails.
I
will hear counsel as to what orders should be made in the case having regard to
these findings.
