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1. The Irish Rugby Football Union (IRFU) was formed in 1879; Dublin University (Trinity College) rugby club had been founded in 1854 and it was on the initiative of the members of that club that the IRFU was formed. The first international rugby match played at Lansdowne Road was between Ireland and England in 1878; it is the oldest international test ground in the world.

2. Mr. Philip Browne, the secretary and treasurer of the IRFU, told of the purposes and objectives of the IRFU as well as the place that the Lansdowne Road ground occupies in its scheme of things, as follows:-

3. So the IRFU needs to make the ground available to others so as to generate income that will be used to foster the game of rugby. Over the more than one hundred years of its existence, many different events have been held in the ground, social, religious, athletic, and including other football games such as soccer and American football, as well as musical events.

4. The single question for resolution in this litigation is whether the holding of pop concerts and other musical events and, indeed, non-sporting events in general requires planning permission from the relevant local authority which is Dublin Corporation, the respondent.

5. It should be emphasised that the requirements for the proper policing, stewarding as well as a proper regard for the safety of patrons and others who attend Lansdowne Road in large numbers is not in debate in this litigation. It is common ground that a strict regime in regard to the safety of persons and in regard to traffic control is in place for any event of a large dimension that is held in Lansdowne Road. Before any major event, the environmental health section of Dublin Corporation is consulted as well as the fire brigade section, the gardai, representatives of the civil defence, the Eastern Health Board, St. John’s Ambulance as well as Iarnrod Eireann; in addition, there is a voluntary code of practice both in regard to the safety of sports grounds for sports events as well as in regard to the holding of pop concerts. Naturally, the IRFU would wish to give a lead in complying with all these requirements; indeed, there is a pragmatic reason why they should do so as well because their insurance brokers would be very unhappy if they did not comply with the requirements of these various, regulatory authorities.

6. It should be noted, too, that this case is concerned purely with Lansdowne Road and while the debate that took place in regard to it might have some relevance for two similar venues in Dublin, namely Croke Park,

7. Jones Road, Drumcondra, which is the headquarters of Cumann Lúthchleas Gael (the Gaelic Athletic Association) and the Royal Dublin Society grounds at Ballsbridge, Dublin, it has nothing to say to smaller venues. There was mention made in the course of the evidence about certain greyhound tracks which would, in the normal way, hold about seven or eight thousand people but, at a stretch and if the track etc. was availed of, might accommodate twenty thousand people. I emphasise that this case has nothing to say to that situation. It is concerned with a ground with a spectator capacity of about forty thousand people and, to repeat myself, is concerned, with the single, solitary question of how the planning code impinges on the holding of such events as pop concerts in this particular ground.

8. Prior to the decision of Peter Kelly J. in of Mountcharles .v. Meath County Council [1997] 1 ILRM 446, it does not appear to have occurred to anyone that the holding of a pop concert, or the like, at Lansdowne Road would require planning permission. But then the decision in the Mountcharles case was given on the 17th December, 1996, and this, no doubt, prompted a letter to be dispatched from a principal officer of the respondents to Mr. Browne of the

9. IRFU dated 5th March, 1997, in regard to the holding of a Celine Dion concert on 12th June, 1997. The letter was as follows:-

10. But no further notice was served and the concert went ahead.

11. At this stage, too, Mr. Oliver Barry, the well-known promoter, had reached an agreement with the IRFU to stage two pop concerts at Lansdowne Road. These were to involve the world famous Irish group, U2, and were scheduled to take place on 30th and 31st August, 1997.

12. Dublin Corporation formed the view that the holding of the proposed concerts by U2 constituted an unauthorised use of the lands by the IRFU and by notice dated the 30th June, 1997, 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 s. 26 of the Local Government (Planning and Development) Act, 1976, as amended by s. 33 of the Local Government (Planning and Development) Act, 1992.

13. The trustees moved in the High Court for leave to seek judicial review so as to quash this warning notice which application, on being refused, the matter was appealed to this Court and by its order of 11th July, 1997, the Court gave the trustees liberty to apply to seek judicial review and directed that the application should proceed by way of plenary summons.

14. The parties then reached an accommodation that since the performers, with their large entourage of support staff and other backup services, had been booked for the concerts in question, great expense had been incurred, the tickets had been sold etc. that the concerts should go ahead but without

15. They pleaded that the warning notice issued under s. 26 of the 1976 Act (as amended) was null and void.

16. They also asked for relief in regard to the stage that would be put up for the holding of the concerts, the basic submission advanced in this regard being

17. In the meantime, however, certain local residents had brought an application under s. 27 of the Local Government (Planning and Development) Act, 1976, as amended, and the High Court on 28th July, 1997, made an order restraining the trustees from using the grounds for the purpose of holding these pop concerts on 30th and 31st August, 1997. That decision, Mahon .v. Butler was appealed to this Court, reported [1997] 3 IR 369 and the Court (Denham J., Barrington J. and Keane J.) allowed the appeal and held that the High Court had no jurisdiction to make an order under s. 27 in favour of the residents in relation to an anticipated breach of the planning code nor did it have the jurisdiction to extend the statutory jurisdiction by way of the general jurisdiction of the High Court. In the course of her judgment, Denham J. (speaking for the Court) said at p. 381:-

18. The substantive case came on for hearing before Morris P. on 16th, 20th, 21st, 22nd, 23rd, 27th, 28th and 29th January, 1998. The learned President delivered his reserved judgment on 19th February, 1998, wherein he refused the relief sought by the plaintiffs in the statement of claim and declared that the use of the grounds at Lansdowne Road for the holding of pop concerts and/or for other musical events and/or non-sporting events constitutes development

19. It was the essence of the appellants’ case both at trial and here that the staging of pop concerts at Lansdowne Road does not involve an unauthorised use of the lands because it involves no change in the use of the lands from its pre-1964 authorised use as a national public stadium. In so far as there is any qualitative difference between a pop concert and a sporting event any such change is not “material” in planning terms; the planning effects of a pop concert are equivalent to those of a sporting event.

20. Mr. David Dunne, who is a qualified town planner with 25 years practice with the Corporation, isolated the following as constituting the differences, as he saw them, between a sporting event and such an event as a pop concert:-

21. He accepted that the capacity for sporting and for concert events would be similar and that the traffic and pedestrian movements would be similar in a stadium such as Lansdowne Road. However, he went on to testify:-

22. He also considered that the effect of sustained amplified sound over a minimum of two hours would constitute a material difference. He said:-

23. It was solely on the ground of the alteration and the level of noise and the duration of the noise during the U2 concerts that brought the learned President to the conclusion that a material change of use was involved from the holding of sporting events in the grounds.

24. In this regard he relied on the judgment of Keane J. in Monaghan County Council .v. Brogan [1987] IR 333. However, the facts in that case were comparatively simple. The respondents had been killing cattle on their farm to feed greyhounds since the 1940s but from 1983 onwards there was a significant increase in the number of cattle being killed and the respondents began to kill cattle to provide food for human consumption. They did not have the relevant licence to do so under the Slaughter of Animals Act, 1935.

25. The point advanced in that case was that evidence had not been given, that if planning permission had been asked for the more elaborate slaughtering operation, that it would have been refused. (Parenthetically, it should be

26. I do not think the problem thrown up by this litigation is as simple. This is because of the essential submission that is advanced on behalf of the appellants to say that the holding of a concert is not a material change of use in planning terms and that matters of excess noise etc. are capable of being dealt with in other ways and under other legislation, especially under the Environmental Protection Agency Act, 1992. While it is .right to say that the trial judge must make the essential findings of fact pointing to a material change of use, the question of whether those facts mean that there has been a “material” change of use in planning terms may require the Court on occasion to make a finding of law, too. Of course some cases will be quite straight-forward; the facts will speak for themselves.

27. The appellants submit that the legal reality is that planning permission is intended to regulate permanent development, not transient events. They say: a transient event (such as a one or two day pop concert) gives rise to short term effects. Planning permission is entirely inappropriate for regulating these short term effects; planning conditions could not descend to the particular with respect to matters such as the marshalling of traffic or pedestrians on the day in question. These matters are properly the subject of other legislative codes: see, for example, s. 91 of the Road Traffic Act, 1961 (as amended by the Road Traffic Act, 1968) which allows the gardai to divert, regulate and control traffic for the purpose of preserving order in relation to traffic when there is an event attracting a large assembly of persons, or s. 107 of the Environmental Protection Agency Act, 1992, which allows the local authority to serve a notice requiring measures to be taken to prevent or limit noise. Reference was also made to the provisions of the Litter Pollution Act, 1997.

28. There is the further point that the regime in place for obtaining a planning permission is ill-attuned for once-off transient events. The requirement for planning permission must involve a request that an existing land use may be changed: a matter of fact and degree, but something more than a temporary change surely. There are often involved complicated and

29. Thus far, in my judgment, the appellants have made out a strong case for saying a material change of use has not been established by the holding of the pop concerts that have been called in question. As Denham J. observed in the Mahon case, at p. 376, the planning code should be construed strictly because there may be grave financial and social repercussions. The old common law maxim is worth recalling: cujus est solum, ejus est usque ad coelum et ad inferos; he who owns the soil is presumed to own everything “up to the sky and down to the centre of the earth”. Thus, prima facie, an owner was entitled to use his property in any way he thought fit. This was, of course, qualified by rights others might have over his land, such as rights of way, the rights of tenants under leases and the rights of mortgagees. In addition, at common law, he was not entitled to use his land so as to be a nuisance to others. Then administrative law was developed, the most notable advance as far as this litigation is concerned being the enactment of the planning legislation. This has led some to believe that a landowner must now hold his or her land for the public good. Certainly landowners have to have regard to the common good

30. I am of the view that the basis on which the learned trial judge decided this case, the matter of noise, was, in a planning context, of no relevance. One might as well say that crowd noise at a soccer match was greater than that at a rugby match; no one would suggest that there was a difference in the use of the stadium between the two types of sport simply because of such a difference in noise levels.

31. However, a factor that gives me pause in regard to coming to a final judgment in favour of the appellants on this aspect of the case is this: if it be right that the holding of pop concerts does not involve a material change in the use of the land in question, then it must be so that the trustees would be entitled to forego the holding of sports events there altogether (including rugby football) and let the stadium out exclusively for the holding of such concerts. That would surely be a very incongruous situation. I know that a possible answer to this may be found in the intensification of use argument (cf Readymix (Eire) Ltd. .v. Dublin County Council, unreported 30th July, 1974 ;

32. Without coming to a final conclusion on this aspect of the case, I prefer to rest my judgment on a finding that the appellants’ case is based on surer foundations by reference to s. 40 of the 1963 Act. That, in so far as is material, provides:-

33. It is so that pop concerts were not performed prior to 1964; but other musical events were. It is so that a pop concert is very different from the more restrained performances that were held in those far off days. Now there is much more action on the stage; with much gyrations by the performers; a degree of audience participation in the agony and the ecstasy that these events tend to precipitate and, without any doubt, much greater amplification. Life, however, does not stand still. The game of rugby itself and its ethos has no doubt undergone profound changes since 1964.

34. On the appointed day (1st October, 1964) if an informed observer of the sporting and social scene in Dublin (indeed, in Ireland) were asked by a visitor: “what use is made of the Lansdowne Road grounds?”, the observer would surely reply “for the playing of rugby and on occasion also for other sporting, social and musical events.” A full list of the events held in the grounds since

35. In 1964, the legislature would have been conscious that the enactment of planning control did represent a huge encroachment on the age-old right of private property and the right of people to use their property in broadly the same way for the future as they had in the past provided it was not a nuisance or, otherwise, in breach of the law.

36. It is important to emphasise that s. 40 provides that no planning permission is required for such an occasional or temporary use, as opposed to providing that such an occasional or temporary use is exempted development ie. it is not treated as constituting “development” which is then exempted from the requirement to obtain planning permission. So what s. 40 declares is that an occasional or temporary use aside from the usual use to which the land is put is not to be regarded as “development”.

37. Paragraph (b) of s. 40 deals with the situation where the lands have, prior to the appointed day, been used generally for one purpose. On occasions - not necessarily at regular intervals, as is the case here - where the lands were used for a purpose that was not their normal use, then that unusual or abnormal use is permitted under the legislation. It stands to reason that those who used it on such occasions in the past brought with them certain accoutrements not

38. Having said that the matter should be confined to the twenty two acres, or so, in which the concerts were held rather than the demesne as a whole, he went on to conclude at p. 460 that:-

39. It will be easily seen, therefore, that the debate in that case was concerned solely with the assertion that the land had two “normal” uses. This contention was rejected by the trial judge.

40. The basis of my judgment is that the normal use for the lands in issue here is for the playing of rugby football; other occasional uses were made of the grounds in the past and, therefore, are permitted for the present and for the future under s. 40 of the 1963 Act.

41. Finally, on this aspect of the case, the learned President thought it significant that regulations made under the planning code for specific exemptions for certain temporary transient structures did not cover the appellants’ case. Since I decide the case on the basis that the case comes within s. 40 and, therefore, does not require permission, there can be no question of the appellants relying on an exemption. In any event, while an Act may be used as an aid to the construction of the regulations made under it, to do the converse is to put the cart before the horse: see Frescati Estates .v. Walker [1975] IR 177 at p. 187 - 188 per Henchy J. citing Lord Diplock in Lawson .v. Fox [1974] AC 803, 809 .

42. Since I have decided the matter in favour the appellants having regard to s. 40 of the 1963 Act, it is unnecessary to have an academic analysis as to whether, if the use was unauthorised, it is now immune from enforcement action by virtue of the time limits prescribed under the planning legislation, in particular, under s. 26 (3A) of the Local Government (Planning and Development) Act, 1976 (as amended). The appellants said that this was an argument of last resort and I can leave it in abeyance for resurrection in a case which requires resolution of the interesting problems thrown up by the possibility of such immunity.

43. The learned President resolved this case having regard to the level of noise that occurred in the course of the U2 concerts. As I have held, I do not think that, in itself, could amount to a material change in use. However, as a matter of good citizenry as well as preserving the rights of the residents, it is important for the future that noise level requirements should be observed. Mr. Barry explained that normally he would arrange with the sound engineer in charge of the band and outline to him what the stipulations were and would hope that he would observe them. He said that they were not observed in the

44. I would propose that the appeal should be allowed, the order of the learned President should be reversed and that there should be a declaration that the holding of occasional pop concerts (or the like) at the Lansdowne Road ground comes within the description of occasional use contained in s. 40 of the Local Government (Planning and Development) Act, 1963.

45. Non Rugby Union events in the Lansdowne Road Ground since 1876

46. The facts of this case have been set out comprehensively in the judgment of O’Flaherty J, and need not be repeated. I agree entirely with his conclusion that, in the light of those facts, the finding by the learned President that the use of the Lansdowne Road stadium for the staging of a concert by U2 constituted a material change in the use of the stadium within the meaning of s.3 of the Local Government (Planning and Development) Act 1963 (hereafter “the 1963 Act”) was wrong in law. O’Flaherty J. has reached that conclusion principally

47. It was also argued on behalf of the plaintiffs/appellants, however, that, altogether apart from the provisions of s.40, it had never been intended by the Oireachtas that planning permission would be required for what were described as transient events of this nature, as to which I would make the following observations.

48. The concept of controlling changes in the physical environment in the interests of the community was reflected in legislation long prior to the 1963 Act, beginning with the Town and Regional Planning Act 1934. The 1963 Act, however, undoubtedly marked the arrival in Irish law for the first time of a comprehensive planning code underpinned by appropriate enforcement machinery. As O’Flaherty J. has pointed out, the 1963 Act represents the most radical abridgement ever effected in our law of the rights of private property recognised and protected, not merely by the Constitution, but also by the common law.

49. There are, accordingly, two broad sets of circumstances in which permission is required: where “works” are carried out on land or where a material change is effected in the use of land. In neither case is it expressly stated that the requirement for permission extends only to developments which are permanent, and not temporary, in their nature. This is hardly surprising: the owner of land may, for whatever reason, decide to put up a building on it with a view to removing it after a period of months or even years and replacing it with another structure. The first structure might well be regarded as “temporary” rather than “permanent” in its nature, but there would be no reason to relieve the developer from the obligation of obtaining permission for the structure simply because it was intended to be “temporary” in that sense.

50. Different considerations may, however, arise where one is considering whether a change of use is “material” within the meaning of s.3(l) so as to constitute a “development” for which permission is required. Although the Oireachtas clearly intended that, in general and subject to any exemptions that might be allowed by the Minister for the Environment in the regulations made pursuant to s.4(2), structures that might well be described as “temporary” required permission, it is clear, in my view, that the radical controls imposed by

51. Take, for example, a hypothesis which was discussed during the submissions to this court. A hotel contains a large room which is not normally used as a restaurant. The owners decide to have a dinner and dance in the room on New Year’s Eve. Unquestionably, the use of the room is changed for the duration of the dinner and dance and there may be an enhanced level of traffic and noise as a result. But it is clearly not a “material” change of use, in the context of planning legislation, imposing on the owner an obligation to apply for permission and publish the necessary advertisements. Given the time framework within which an applicant may reasonably expect a permission to be granted and a possible appeal to be dealt with by An Bord Pleanala, it is improbable in the extreme that such changes of use were to be regarded as “developments” and the fact that the Minister for the Environment has, in the exercise of his powers under s.4(2), granted exemption to a number of transient activities is, for the reasons already given by O’Flaherty J, of no assistance to the defendants/respondents.

52. That is not to say, of course, that there are no restrictions on the legal capacity of the owner of such a premises to alter its use simply for one evening. On the contrary, there is a positive arsenal of statutory controls available to the

53. The last case, indeed, was relied on by Mr. George Brady, S.C. on behalf of the Respondents as justifying the conclusion that as transient an event as the holding of a pop concert two or three times a year constituted a material change of use. However, it is to be noted that in that case the plaintiff company, which was the owner of a hotel, having obtained the necessary licence, converted part of the ground floor into a lounge bar - it previously had only a hotel licence - and it was in that factual context that MacWilliam J. in the High Court arrived at the conclusion that there had been a material change of use. Such a development could not reasonably be regarded as being so fleeting in its nature as to escape the ambit of the planning code.

54. How should these principles be applied in the present case? Lansdowne Road is a major stadium principally designed for the holding of sporting events. The fact that it can accommodate large audiences in relative comfort

55. It was conceded on behalf of the plaintiffs/appellants - who indicated that they were perfectly happy to stage no more than three such events at the most in the space of any one year - that were they to hold them on a significantly more frequent basis, a point could be reached at which a material change in use would take place which would require planning permission. Although the expression “intensification of use” is not to be found in our planning code or its English equivalent, the legislatures in both jurisdictions must have envisaged that a particular use could be so altered in character by the volume of activities

56. It appears indeed that the staging of the U2 concert without planning permission would not have encountered any objection from the defendants/respondents, were it not for the decision of the High Court (Peter Kelly J) in Earl of Mountcharles v. Meath County Council [1997] 1 ILRM 446. However, since in that case it was expressly conceded on behalf of Lord

57. Mountcharles that the use of his land for the holding of such concerts was an unauthorised use but one which, it was claimed, because of the lapse of time, could not be the subject of enforcement proceedings, the decision is of no assistance to the defendants/respondents in the present case, where no such concession has been made.

58. The holding of the concert would also necessitate the carrying out of certain works of a temporary nature in the stadium, principally the erection of a large stage. There was no finding by the learned President as to whether permission would have been required, as a separate matter, for the carrying out of those works and no arguments were addressed to us on this aspect of the case. It is, however, at least questionable whether permission would have been required, since, under s.4(l)(g) of the 1963 Act permission is not required for:-

59. I would also allow the appeal.