High Court of Ireland Decisions

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.