Grianan an Aileach Interpretative Centre Co. Ltd. v. Donegal County Council [2004] IESC 41 (15 July 2004)

THE SUPREME COURT

Keane C.J.
Murray J.
McGuinness J.

391/03
BETWEEN
Grianan An Aileach Interpretative 
Centre Company Ltd
PLAINTIFF / RESPONDENT
AND
The County Council of the 
County of Donegal
DEFENDANT / APPELLANT

JUDGMENT delivered the 15th day of July 2004, by Keane C.J. [Nem Diss]

Introduction
These proceedings came before the High Court because of a dispute between the plaintiff / respondent (hereafter “the plaintiffs”) and the defendant / appellant (hereafter “the planning authority”).  They raise a question of some importance as to the jurisdiction of the court to construe planning permissions, but before turning to that issue, I should set out the factual background to the case.

On the 17th December, 1998, the planning authority granted permission to the plaintiffs under the provisions of the Local Government (Planning and Development) Acts, 1963 / 1993, for a development described as the erection of a visitors’ centre, in accordance with plans submitted with the application for permission at Speenoge, Burt, Co. Donegal.  The site of the development was a disused church located near an ancient monument known as the Grianan An Aileach.  A previous permission had, it would seem, been granted in respect of the building, but neither the High Court nor this court were furnished with any details of that permission and we are solely concerned with the permission granted on the 17th December, 1998.

The terms of the permission of 17th December, 1998 which have given rise to the present dispute must now be set out in more detail.  It was a permission for

“Erection of a visitors’ centre with history exhibition space, nature exhibition space, audio-visual theatre, craft shop, centre of intercultural activity, waiting area and associated facilities, plus outdoor pond and a sewage treatment system at Speenoge, Burt in accordance with the plans submitted with the application subject to the ten conditions set out in the Schedule attached.”
Condition 9 provided that

“Use of premises shall be restricted to uses indicated on submitted plans and for no other use without prior written agreement of the Planning Authority.”

The plans lodged with the application showed a building described as the “existing visitors’ centre” and a number of other buildings described inter alia as a “centre of intercultural activities”, a “nature exhibition”, a “history exhibition” and an “audio-visual theatre”.

It is also stated in the grant of permission that the permission would cease to have effect “in five years from the date of issue as regards any part of the development not completed by that date”.  It is not in dispute that the development has not been fully completed, part of the audio-visual theatre and the greater part of the history exhibition area not having been built.  It would also appear that the plaintiffs were granted a restaurant license and a public dancing license in respect of the premises.

The differences between the plaintiffs and the planning authority as to how the permission was to be construed first emerged when the plaintiffs, on the 26th March, 2002, sent the planning authority a schedule of events which it was intended to hold on the premises during the period March to August 2002.  These included celebrations of various festivals, i.e. Easter,  Bealtaine, the summer solstice and Lughnasada, themed banquets, an “open-house with session musicians from north and south”, a celebration of Queen Elizabeth’s golden jubilee, “themed banquets” celebrating Irish culture and a “themed American menu”.  The planning authority in their response on the 11th April said that they considered the centre to be primarily a visitors’ centre for tourists to interpret the monument and the adjoining woodlands.  While they accepted that the permitted uses extended to banqueting nights on special occasions, they were of the view that the programme of activities appeared to relate to regular weekly functions which were not envisaged by the permission.  The plaintiffs expressed their concern that the attitude of the planning authority was creating serious financial problems for them and that, in particular, they were being threatened with the withdrawal of funding by An Bord Fáilte.  The planning authority, however, maintained that the premises were being used in a manner not envisaged by the planning permission in a letter of the 14th May, 2002 where they said inter alia 

“It has come to the attention of this Council that unauthorised development may have been, is being or may be carried out thereon, such unauthorised development being breaches of Condition 9 of the said permission (as to permitted uses of the premises), specifically uses as a concert venue, for weddings or other regular functions normally associated with a hotel or other entertainment venue and uses other than those which the Council has indicated would be acceptable …”

There was further correspondence, including a letter of the 29th July, 2002 from the solicitors for the plaintiffs enclosing an opinion of counsel to the effect that the uses in question were permitted by the planning permission.  In further correspondence, the planning authority maintained their stance that uses generally associated with a concert / entertainment venue, nightclub, hotel, etc., were not, in their view, permitted.  They advised the plaintiffs’ solicitors that, if such uses were contemplated, there should be a fresh application for planning permission.  

In a letter of 18th November 2002, the plaintiffs informed the planning authority that they had obtained a dance licence and were now in a position, as they put it, “to develop our business”.  They gave details of a number of proposed events under the heading “Nights of Intercultural Activities”, including music throughout the ages in New Orleans and the deep south of the US, an evening of Irish-Scots music, a Caribbean Christmas, a Victorian Christmas and a “themed Dickensian Christmas”.

The High Court proceedings
The planning authority had indicated in the course of its correspondence that, if the plaintiffs persisted in using the premises for purposes which, as the planning authority insisted, were not envisaged by the planning permission, enforcement proceedings would be issued.  That did not happen, but on the 6th March, 2003, these proceedings were commenced by plenary summons, claiming the following declarations:

“1.	A declaration that the plaintiff is entitled to use the land the subject matter of the application and the premises thereon situate in accordance with planning permission register reference number 98/2124.
2.	A declaration that the building erected pursuant to planning permission register reference number 98/2124 may be used for activities in the nature of cultural activities and / or as a centre for intercultural activity.
3.	A declaration that the centre can be used for the purposes of music and / or dancing and / or poetry / storytelling and is not limited solely to Irish cultural activities dating from the medieval period and can be used for cultural events from cultures other than those associated with Irish culture and / or cultural activities where there is a mix of Irish and other cultures.
4.	A declaration prohibiting the defendant from taking any steps to prevent the use of the lands and premises known as Grianan An Aileach Interpretative Centre for the purposes set out in the submission to the defendant dated the 26th March, 2002.
5.	A declaration prohibiting the defendant from taking any steps prohibiting the use of the lands and premises known as Grianan An Aileach Interpretative Centre, Speenoge, Burt, Co. Donegal for the purposes of nights of intercultural activities including the presentation of music throughout the ages in New Orleans and in the deep south of the United States, evenings of Scotch / Irish music celebrating in accordance with the University of Irish & Scots Music, music demonstrating the link between modern country music and Irish traditional music, celebration of intercultural pre-celtic feast of the winter solstice which would include a night of storytelling, song and dance, celebration of Spring including traditional dance from the Ulster Scots tradition Music poems, music from the Caribbean including folklore and food, music reflective of Victorian / Dickensian Christmas together with appropriate food from that era.
6.	A declaration that the planning authority are not entitled to modify the uses that had been permitted by subsequent correspondence and that the planning permission authorises the use of the centre for intercultural activity.”

The plenary summons also claimed damages, “interim and / or interlocutory relief” and further or other relief.

A notice of motion was then served by the plaintiffs in which, in addition to an order in the same terms as Paragraph 5 of the general endorsement of claim, they also claimed

“1.	An order prohibiting the defendant from taking any steps to prevent the use of lands and premises known as Grianan An Aileach Interpretative Centre for Intercultural Activity.
2.	An order prohibiting the use of lands at premises Grianan An Aileach Interpretative Centre, Speenoge, Burt, Co. Donegal for the use as a concrete venue for music / dancing / poetry reading / storytelling and ancillary activities carried out in accordance with planning permission register reference number 98/2124 for which application was granted planning permission on the 17th of December, 1998.
3.	An order prohibiting the defendant from taking any steps to prevent the use of lands and premises known as Grianan An Aileach Interpretative Centre for the purposes set out in the submission to the defendants dated the 26th of March, 2002.”

(The relief sought in paragraph 2 was presumably meant to be in the same form as that in paragraph 1.)

An affidavit grounding the application was sworn by Ms. Una Fullerton, a director of the plaintiffs, and a replying affidavit was sworn by James Harley, a senior planner with the planning authority.  Those affidavits exhibited the planning permission and the correspondence to which I have referred and set out the respective positions of the plaintiffs and the planning authority.  At the hearing of the motion before Kelly J., it was agreed that the hearing of the motion should be treated as the trial of the action, but the planning authority made it clear that they were resisting the granting of the relief sought, not merely on the ground that the uses in question were not authorised by the planning permission, but also because, as they submitted, the High Court had no jurisdiction to grant the relief sought.  

It should also be pointed out that there was some oral evidence at the hearing in the High Court.  This concerned a study entitled “Strategic Development and Marketing Plan for the Grianan An Aileach Interpretative Centre” which had been prepared by a body called Tourism Development International Ltd in December 1998.  In the course of his written judgment, the trial judge concluded that the report in question had not come to the attention of the planning authority, that it could not properly be regarded as a planning document and that he should exclude it from his consideration of the case.  Neither the plaintiffs nor the planning authority have sought to disturb that finding by the trial judge.  

The High Court judgment
The trial judge set out in detail in his judgment the history of the matter.  He pointed out that the dispute between the plaintiffs and the planning authority as to whether the various uses being made of the premises by the former were authorised by the planning permission had created considerable difficulties for the plaintiffs so far as the funding of the activities were concerned and that the plaintiffs contended that the only way in which these difficulties could be resolved were by these proceedings.  

The trial judge then went on to consider seriatim the various reliefs claimed in the plenary summons.  He had obviously little difficulty in deciding that the first and second declarations sought should not be granted, since the planning authority had never disputed the right of the plaintiffs to use the premises in accordance with the planning permission and for activities in the nature of cultural activities or for “intercultural activities”.  As to the third declaration sought, he noted that the planning authority were not now contending that the premises could be used solely for Irish cultural activities.  He also declined to grant the fourth and fifth declaration sought, observing that they were largely concerned with events for which permission had been sought in the past and refused.  He commented that it would, in any event, be of limited use unless the events in the future were identical to those in the past.  He also noted that the defendants were in any event objecting to a declaration of this nature on the ground that the activities envisaged would be in excess of what the planning permission allowed.  

In the light of those difficulties, the trial judge invited counsel at the conclusion of the hearing to formulate a declaration which, as he put it, “would be of genuine benefit to both parties concerning the future use of the premises”.  Counsel for the plaintiffs proposed the following:

“A declaration that the Grianan An Aileach Interpretative Centre may be used for the type of uses set out in the Schedule of Activities of the 26th March, 2000 and activities of a like nature but may not be used for non-cultural activity for example a nightclub and / or weddings or other such events of a like kind.”

The trial judge noted that counsel was no longer contending that the premises could be used for “weddings” or for “a nightclub”.  As to the contention on behalf of the defendants that the court was being invited to resolve issues which were properly matters for the planning authority and An Bord Pleanala, the trial judge said

“In my view this is a case in which the court is entitled to grant a declaration as to the true meaning of the planning permission suitable.  The declarations sought clearly relate to the legal rights and entitlements of the parties.  It does not appear to me to be the case that the plaintiffs’ only choice is to either accept the defendants’ interpretation of what is meant by the planning permission or if in default proceed on a course of action which result in its being prosecuted or injuncted.  I am of opinion that it was entitled to apply to this court for declaratory reliefs as to its entitlements.”

The trial judge then went on to consider what form of uses were authorised by the planning permission.  Having noted that the permission clearly envisaged that there would be catering facilities on the premises, he concluded that food and drink could be served provided that it was “incidental and ancillary to the principal use”.  He was of the view that, in the event of the provision of food and drink eclipsing the principal use, that would amount to a material change of use for which a fresh permission would be required.  He was also of the view that the activities for which permission was sought in the plaintiffs’ schedule of events of the 26th March, 2002 and the events referred to in their letter of the 18th November, 2002 fell within the terms of the permission as granted.  He considered that the fact that some of them were to occur on a regular weekly basis did not debar them from taking place once they were “cultural or intercultural”.  His judgment concluded:

“In these circumstances I propose to grant a declaration that the plaintiffs’ Centre may be used for the type of uses set out in the schedule of activities of the 26th March, 2002 and the 18th November, 2002 and activities of a like kind including the service of food and drink ancillary to such cultural activities.  The plaintiff may not use the centre for non-cultural activities and in particular may not use it for the holding of weddings or use it as a nightclub.  Neither may the premises be used solely or primarily as a restaurant save with the permission of the defendant.”

The appeal to this court
The planning authority have now appealed to this court from the judgment and order of the High Court.  In their written submissions, they again contend that the High Court had no jurisdiction to grant relief of this nature: alternatively, they submit that the trial judge was, in any event, in error in construing the planning permission as authorising the activities in question.  

In their submissions in the High Court and again in this court, the planning authority relied on a general proposition that the issues which the High Court was being invited to resolve were of a planning nature which had been exclusively entrusted by the Oireachtas to the planning authority and An Bord Pleanala for resolution.  Specifically, in this court, they relied on s. 5 of the Local Government (Planning and Development) Act, 2000 (hereafter “the 2000 Act”) which provides that a planning authority may declare what is or is not development or exempted development within the meaning of the Act and for a review of the planning authority’s decision by An Bord Pleanala.  It was, however, accepted that this provision had not been drawn to the attention of the trial judge.  

This court has made it clear on a number of occasions that, save in exceptional cases, it will not allow a party to raise an issue for determination in this court which was never raised in the High Court.  In the present case, however, the jurisdiction of the High Court to grant the relief sought was expressly challenged and was the subject of elaborate oral and written arguments and of a reserved judgment.  Where a particular argument relating to an issue adjudicated on in the High Court is advanced for the first time in this court, the court is not obliged, in my view, to have no regard to that argument in determining the appeal, particularly in a case, such as the present, where a point of general importance relating to the jurisdiction of the High Court has arisen for determination.

Submissions of the parties
On behalf of the planning authority, Mr. James O’Reilly S.C. submitted that, while the jurisdiction of the High Court to grant a declaratory relief was clear, as was the discretionary nature of that jurisdiction, there appeared to be no precedent for what he described as a “free-standing declaration” as to rights and obligations deriving from a planning permission which was not envisaged by the statutory code governing planning. He said that the appropriate course for the plaintiffs to have taken was to apply for permission for the activities in dispute or, alternatively, to refer the matter for determination to the planning authority under s. 5 of the Planning and Development Act, 2000.  He said it was of some significance that the procedure whereby a determination of An Bord Pleanala under the repeals legislation could be appealed to the High Court had not been retained in the 2000 Act, reflecting, as he put it, the policy of the legislation that such issues should be exclusively determined by the planning authorities and, on appeal, An Bord Pleanala.  He cited in this connection, the judgment of this court in O’Keeffe –v- An Bord Pleanala [1993] 1 IR 39 and the decisions of the High Court in McMahon –v- Dublin Corporation [1997] 1 ILRM 227 and Palmerlane Ltd –v- An Bord Pleanala & Anor [1999] 2 ILRM 514.

Mr. O’Reilly further submitted that the difficulties inherent in the High Court attempting to exercise a jurisdiction of this nature were illustrated by what had occurred in this case where the trial judge ultimately declined to grant any of the reliefs actually sought by the plaintiffs and granted a declaration which he had formulated himself after the submissions on behalf of the parties had concluded.

Mr. O’Reilly further submitted that the planning authority were perfectly entitled to conclude that the uses now being proposed by the plaintiffs reflected their intention to use the premises as an entertainment venue rather than as a centre of cultural and intercultural activity.

Mr. O’Reilly further submitted that the form of relief actually granted by the trial judge would inevitably give rise to difficulties which, presumably, could only be resolved by further proceedings in the High Court.  Thus, while he apparently considered it appropriate to exclude the use of the premises for “weddings”, there was no express prohibition of social functions arising in other contexts and involving the provision of food, drink and dancing facilities.  Nor was it clear as to where the line was to be drawn between “cultural” and “non-cultural” activities.  

On behalf of the plaintiffs, Mr. Frank Callaghan S.C. submitted that s. 5 of the 2000 Act did not necessarily apply where what was in issue was whether particular uses were authorised by a planning permission.  Even if the decision apparently to a contrary effect in Palmerlane Ltd –v- An Bord Pleanala was correctly decided, it did not necessarily follow that a person or body in the position of the plaintiffs was precluded from seeking declaratory relief in the High Court as to the proper construction of a planning permission.  There was nothing in the wording of s. 5 or the other provisions of the 2000 Act to suggest that the jurisdiction of the High Court to consider such issues was being effectively ousted.  He referred in this context to the decision of the House of Lords in Pyx Granite Company Ltd –v- Minister of Housing and Local Government & Ors [1960] AC 260 to the effect that the existence of analogous procedures under the corresponding English legislation did not effect an ouster of the jurisdiction of the courts and submitted that the same considerations applied in this jurisdiction, having regard to the constitutional right of access of the plaintiffs to the High Court.

Mr. Callaghan further submitted that the plans lodged with the application for planning permission clearly indicated that part of the site would be used for “intercultural activity” and it followed that it was envisaged that the centre could be used for events which would entertain as well as educate visitors to the centre.  The planning authority, having gone no further than indicating that the use of the premises should be restricted to the uses shown on the submitted plans, were not entitled to impose additional limitations on the uses to which the visitors’ centre could be put.  He further submitted that a planning permission should be construed having regard to the ordinary meaning of the expressions used and as they would be understood by members of the public without legal training, citing the decision of this court in XJS Investments Ltd –v- Dun Laoghaire Corporation [1998] 6 IR 750 and Readymix –v- Dublin County Council (unreported; judgments delivered 30th July, 1974).  He said that so construed, the planning permission clearly envisaged the visitors’ centre being used for a relatively wide range of activities, including those which the planning authority sought to treat as excluded.

Conclusions
Section 5 of the 2000 Act provides inter alia as follows:
“(1)	If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(2)(a)	Subject to paragraph (b), a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.”

Subsection 3(a) provides that 

“Where a declaration is issued under this section, any person issued with a declaration under subsection (2)(a) may, on payment to [An Bord Pleanala] of such fee as may be prescribed, refer a declaration for review by [An Bord Pleanala] within 4 weeks of the date of the issuing of the declaration.”

Subsection (4) provides that 

“Notwithstanding subsection (1), a planning authority may, on payment to [An Bord Pleanala] of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by [An Bord Pleanala].”

Under s. 3(1), “development” means inter alia “the making of any material change in the use of any structures or other land”.

In the present case, the issue that has arisen between the plaintiffs and the planning authority is as to whether the proposed uses are authorised by the planning permission.  I am satisfied, however, that, although the issue has arisen in that particular form, it necessarily requires the tribunal which determines it to come to a conclusion as to whether what is being proposed would constitute a material change in the use of the premises.  If it would not, then the question as to whether the particular uses were authorised by the permission simply would not arise.  In the present case, the planning authority have at all times been contending, in effect, that the proposed uses would constitute a material change in use which is not authorised by the present planning permission.  Equally, for their part, the plaintiffs have been contending that the uses are authorised by the existing planning permission but have not contended that, if that were not the case, they would in any event be entitled to carry them out as not constituting a material change of use.  It would seem to follow that the question as to whether planning permission is required in this case necessarily involves the determination of the question as to whether the proposed uses would constitute a “development”, i.e. a question which the planning authority and An Bord Pleanala are empowered to determine under s. 5 of the 2000 Act.

That conclusion is reinforced by the decision of the High Court in Palmerlane Ltd –v- An Bord Pleanala & Anor.  In that case, the applicant had been granted a permission to use a premises as inter alia a retail shop.  When the applicant began to use the premises as a shop on foot of the permission, it also used them for the sale of hot food for consumption off the premises.  The planning authority subsequently took the view that this was an unauthorised use and issued a warning notice under the relevant legislation to the applicant.  The applicant in turn submitted a reference under the corresponding section in the then applicable legislation to An Bord Pleanala.  The Board declined to entertain the reference on the ground that it amounted to a request to them to construe the terms of the planning permission and was, accordingly, not a valid reference.  The applicant then issued proceedings in the High Court by way of judicial review seeking a declaration that its submissions constituted a reference for the purposes of the legislation.  

In her judgment, McGuinness J. pointed out that An Bord Pleanala accepted in that case that, if the sale of hot food had commenced subsequently to the grant of planning permission, a question would have arisen as to whether that constituted a material change of use: their rejection of the reference was exclusively based on the fact that the sale of hot food began at the same time as the use of the premises for a shop.  McGuinness J. was satisfied that a broadly similar argument had been advanced to the High Court in McMahon –v- Dublin Corporation and rejected by Barron J.  She considered view that that view of the law was correct and accordingly granted the relief sought.  Clearly, as acknowledged on behalf of An Bord Pleanala in the Palmerlane case, this must also apply a fortiori where, as here, the disputed use did not begin at the time the permission was first implemented.  The reasoning adopted in both McMahon and Palmerlane which, I am satisfied, is correct in law would indicate that, in such circumstances, a question as to whether the proposed uses constitute a “development” which is not authorised by the planning permission is one which may be determined under the 2000 Act either by the planning authority or An Bord Pleanala.  In the present case the question is as to whether the various proposed uses which, the planning authority contend, would involve the regular use of the premises for events associated with a concert / entertainment venue rather than a visitors’ centre are in a planning context materially different uses from use as a visitors’ centre and the uses indicated on the lodged plan, in which case they would not be authorised by the planning permission.

It has been argued in this case that, even if the planning authority or An Bord Pleanala had jurisdiction to entertain such a reference, the High Court was not precluded from adjudicating on the proper construction of the planning permission where a dispute as to it had arisen between two parties with an interest in the matter, i.e. the plaintiffs and the planning authority.  That submission, however, seems to me to be at odds with the approach which has been adopted in this court in recent years to legislation conferring jurisdiction in particular areas on courts and bodies other than the High Court.  

Henchy J., delivering the judgment of this court in Tormey –v- Ireland [1985] IR 289, said that where parliament committed certain matters or questions to the jurisdiction of the District Court or the Circuit Court, the function of hearing and determining those matters and questions might, expressly or by necessary implication, be given exclusively to those courts.  In Criminal Assets Bureau –v- Hunt [2003] 2 IR 1768, I made the following observations as to how that principle might be applied to tribunals and bodies other than courts:

“There is today in existence a huge range of tribunals and other bodies, of which the Appeal Commissioners in revenue cases are just one example, which determine matters in controversy between parties and whose functions and powers are properly categorised as ‘limited functions and powers of a judicial nature’ [within the meaning of Article 37.1 of the Constitution].  It is not uncommon for the legislation establishing such tribunals to provide for a limited form of appeal to the High Court from its decisions, usually confined to questions of law.  However, in every case, the High Court retains its power under the Constitution to determine whether such bodies have acted in accordance with the Constitution and the law and such a jurisdiction cannot be removed from the High Court by statute.  Subject to that qualification, it is clear, as was found in Tormey’s case, that the Oireachtas may confer on such bodies, expressly or by implication, an exclusive jurisdiction to determine specific issues.”  

In considering whether the jurisdiction vested in the particular tribunal or body is an exclusive jurisdiction, the following observation of Henchy J. in Tormey –v- Ireland must be borne in mind:

“The jurisdiction to try thus vested by the Constitution in courts, tribunals, persons or bodies other than the High Court must be taken to be capable of being exercised, at least in certain instances, to the exclusion of the High Court, for the allocation of jurisdiction would otherwise be overlapping and unworkable.”

Thus, in the present case, if the jurisdiction of the planning authority or An Bord Pleanala under s. 5 were invoked and they were invited to determine whether the uses in controversy were within the uses contemplated by the planning permission or constituted a material change of use for which a new planning permission would be required, either of those bodies might find itself in a position where it could not exercise its statutory jurisdiction without finding itself in conflict with a determination by the High Court.  No doubt a person carrying out a development which he claims is not a material change of use is not obliged to refer the question to the planning authority or An Bord Pleanala and may resist enforcement proceedings subsequently brought against him by the planning authority on the ground that permission was not required.  In that event, if the enforcement proceedings are brought in the High Court, that court may undoubtedly find itself having to determine whether there has been a material change of use or whether a development is sanctioned by an existing planning permission, as happened in O’Connor –v- Kerry County Council [1988] ILRM 660.  But for the High Court to determine an issue of that nature, as though it were the planning authority or An Bord Pleanala, in proceedings such as the present would seem to me to create the danger of overlapping and unworkable jurisdictions referred to by Henchy J.

The decision of the House of Lords in Pyx Granite Company Ltd –v- Minister of Housing and Local Government & Ors is, in my view, distinguishable from the present case.  That was a case in which a company engaged in quarrying claimed to be entitled to carry it out under the provisions of a private and local Act of Parliament, i.e. the Malvern Hills Act, 1924.  Since the relevant legislation in England provided that planning permission was not required for development authorised by local or private Acts, the company further claimed that they were not obliged to invoke the procedure under the planning legislation whereby the Minister of Housing and Local Government could determine whether planning permission was required.  The Minister raised a preliminary objection to the court determining the company’s claim, on the ground that its jurisdiction had been ousted by the provisions of the planning legislation entitling the Minister to decide whether planning permission was required.  That submission was rejected by the House of Lords on the ground that the right of a person to have recourse to the courts for a determination of his rights was not to be excluded except by clear words.

That, however, was a case in which the company claimed that they were not in any way affected by the provisions of the planning code, having regard to the provisions of the local and private Act of Parliament authorising their operations.  One could well understand why that was thought to be an issue which could be resolved only by the courts.  No such considerations arise in this case, where the plaintiffs are admittedly required to obtain planning permission for any operations which constitute “development” within the meaning of the 2000 Act and are not exempted development.

In the present case, the trial judge, quite understandably, was concerned to resolve issues which had been brought before the High Court in a manner which was fair to both the planning authority and the public interest which it represents on the one hand and the legitimate interests of the plaintiffs on the other hand.  This resulted, however, in the granting of a declaration in a form which had not been sought by either party and which clearly creates further difficulties.  Can it be said that the prohibition on “weddings” (presumably intended to exclude the social function which normally takes place in a hotel or restaurant following the wedding itself) extends to other social functions and, if so, how are they to be defined?  Does the prohibition on “non-cultural activities” extend to every form of pop or rock concert?  What precisely is meant by “use as a nightclub”?

Some responsibility may be attributed to the planning authority for the difficulties that have arisen in determining to what uses the premises may be put without a further planning permission: they might well have been avoided by the use of more precise language when the permission was being granted.  I am satisfied, however, that the High Court cannot resolve these difficulties by acting, in effect, as a form of planning tribunal.  As I have already indicated, if enforcement proceedings were brought in the High Court, that court might find itself having to determine whether particular operations constituted a “development” which required permission and the same issue could arise in other circumstances, e.g. where a commercial or conveyancing document containing a particular term dealing with compliance with planning requirements was the subject of litigation.  But in every such case, however it came before the court, the court would resolve the issue by determining whether or not there had been or would be a development within the meaning of the planning code.  The only circumstance in which the court could find itself making a declaration of the kind ultimately granted in this case would be where it had been drawn into a role analogous to that of a planning authority granting a permission.  That is difficult to reconcile with the law as stated thus by Finlay C.J. in O’Keeffe –v- An Bord Pleanala:

“Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and [An Bord Pleanala] which are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters.”

I would allow the appeal and substitute for the order of the High Court an order dismissing the plaintiffs’ claim.