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1. The first named Applicant is the owner of Fairyhouse Racecourse. The second named and third named Applicants (hereinafter called “the Promoters”) were the promoters of a two day concert which at the date of the reference was intended to be held on the first named Applicant’s lands on the 5th and 6th August, 2000 but they also then intended and still intend to hold further concerts at the same venue the next to be held there on the forthcoming August weekend. The first named Notice Party is the Planning Authority. The second named Notice Party resides adjacent to Fairyhouse Racecourse and is the Chairman of a local residents group Rathoath and District Concerned Residents Group.

2. In 1999 the Promoters entered into negotiations with the Planning Authority in respect of the event proposed for August 2000. On the 12th October, 1999 the Planning Authority wrote to the promoters in the following terms -

3. By letter dated the 2nd May, 2000 the Notice Party made a reference to An Bord Pleanala pursuant to the Local Government (Planning and Development) Act, 1963 Section 5. The reference concerned the then forthcoming concert scheduled for the 5th and 6th August, 2000 and in short sought a declaration by An Bord as to whether the holding of the same constituted development or exempted development. The Promoters made submissions to An Bord Pleanala in response but they did so without prejudice to their contention that on the true construction of Section 5 the only persons entitled to make a reference under the Section are the developers or owners of the lands. In argument before me however it was not contended that a Planning Authority could not make a reference under the Section.

4. The decision of An Bord Pleanala was not made until the 24th November 2000 i.e., after the concert had taken place. A letter issued from An Bord Pleanala notifying the parties that its decision would not be made until after the date scheduled for the holding of the concert and this letter is headed as follows -

5. The decision of An Bord Pleanala contains the following recital -

6. In his introduction to his report the inspector states -

7. Notwithstanding the foregoing I am satisfied that the matter before An Bord Pleanala was in the words of the Section “a particular case” namely the event held on the 5th and 6th August, 2000. The decision thereon is not a decision on the event scheduled for August next or for future years. The decision of An Bord Pleanala was that the event represented a material change of user, was development and did not constitute exempted development.

8. In these circumstances my first concern was to determine whether or not the issues raised in these proceedings are moot. The Applicants rely on the provisions of the Planning and Development Act, 2000 part XVI and the Planning and Development (Licensing of Outdoor Events) Regulations 2001, Regulation 19. The effect of these is that the Applicants’ position in relation to the 2001 event will differ if on the one hand the holding of the same requires Planning Permission or on the other the same is not a material change of use and so not development or is exempted development. If Planning Permission is not required for the event then the promoters will not require a licence for the event scheduled for August 2001. I am satisfied that the decision of An Bord Pleanala cannot determine the status of the August 2001 event as in its terms it relates as required by Section 5 to a particular case namely the August 2000 event. However, within the inspectors report upon which the An Bord Pleanala decision was based there are a number of findings of fact with which the Applicant does not agree. It is clear from papers exhibited on this application that An Bord Pleanala on such a reference will have regard to its previous decisions relevant to the case before it and accordingly the existence of this decision is of concern to the Applicant as it may affect future references in relation to future events which it is proposed should take place at Fairyhouse Racecourse. For this reason the Applicants argue that the issues raised on this application are not moot. Further it should be noted that the Local Government (Planning and Development) Act, 1963 Section 5 has been replaced by the Planning and Development Act, 2000 Section 5 which makes it clear that any person may institute a reference. The issue as to whether Section 5 of the 1963 Act enabled a person other than the owner or developer of the land in question to make a reference has now become moot as an issue of general interest by reason of the change in the relevant statutory provisions. However, the Applicants have availed of the right of Appeal under Section 5 (2) of the 1963 Act and if they succeed in having the decision of An Bord Pleanala quashed on any of the grounds upon which they rely, then it will not be necessary for then to pursue the Appeal. In these circumstances the decision of this Court on the issues raised is not merely of academic interest but is of practical benefit to the parties to the Appeal. So in these circumstances I am satisfied that while the issues sought to be raised in these proceedings have to an extent been overtaken by events they are not merely academic but of practical consequence and accordingly not moot.

9. I propose dealing in turn with the several grounds raised by the Applicant and to determine in respect of each whether the same is substantial.

10. In relation to this ground the Applicants rely upon dicta of Costello J in Patterson -v- Murphy 1978 ILRM 85 at p.103 -

11. While the construction of Section 5 suggested by Costello J is obiter and I am by no means certain that it supports the construction of Section 5 contended for by the Applicants I am none the less satisfied that it supports the Applicants contention that it has substantial grounds to argue the construction of Section 5 for which it contends. Accordingly, I propose granting the Applicants leave to apply for the relief claimed in the Statement to Ground Application for Judicial Review at D (i) (ii) and (iii) upon the grounds set out at E (i) 1 and 2.

12. There is nothing in the wording of the Section to support this contention. The Bords jurisdiction exists “ in any particular case” and here the Bord had a particular case referred to it for its decision. The reference was made on the 2nd May. 2000 in advance of the event concerned and in these circumstances An Bord Pleanala had an obligation to make a decision. It is not necessary for me to decide whether the position would be the same if the reference was made after the event had taken place. Having regard to the wording of the Section I am not satisfied that the Applicant has shown that this ground is substantial and accordingly I refuse leave.

13. While at first sight the reasons stated in the decision do no more than state that the event constitutes a material change of use, constitutes development and is not exempted development, regard must be had to the procedures adopted by the Bord. The Applicant received and was afforded an opportunity to comment upon the submissions of the Notice Party. After the decision, there was made available the Inspector’s report from which the reasoning which he applied to the circumstances clearly appears. The information thereby made available to the Applicants was sufficient to enable them to formulate their claim for Judicial Review in considerable detail. It is equally clear that there was sufficient information available to the Applicants to enable them to formulate an appeal pursuant to Section 5 (2) of the 1963 Act. Notwithstanding that the reasons given are terse, the Applicants have not in any way been prejudiced thereby. Likewise on this application I have not in any way been restricted in evaluating An Bord Pleanala’s procedures and reasoning for the purposes of this application. The Applicants’ submission, if correct, would result in an obligation on the Bord in every such case to give what would amount to a reasoned judgment: in any event the report of the Inspector amounts to nothing less than a reasoned judgment. Ideally, perhaps, the decision should have expressly adopted the inspectors report as the basis of its decision and that it did not do. However, in the circumstances of this case, I am not satisfied that this omission alone would justified me in holding that this ground is substantial as I am satisfied that the Inspectors report is the basis of the Bord’s decision and the reasons for that decision clearly appear from the report which is to be read in conjunction with the decision. I refuse leave on this ground.

14. Having regard to the view which I have taken in relation to the Inspectors report I am satisfied that there were ample grounds to justify the decision. The Applicant has not satisfied me that there are substantial grounds for contending that the decision should be quashed on the basis of the State (Keegan) -v- Stardust Victims Compensation Tribunal 1986 IR 642. I refuse leave on this ground.

15. The approach which I should adopt in relation to this ground is that set out in O’Keeffe -v- An Bord Pleanala 1993 1 IR. 39. I am satisfied from a perusal of the documents exhibited on this application that there was before An Bord Pleanala evidence which would justify it in reaching the decision which it in fact reached. In these circumstances I am not satisfied that this ground is substantial. I refuse leave on this ground.

16. Among the papers disclosed on the Application is a document headed Bord Direction which contains the following statement:-

17. The Applicants contend that they ought to have been notified that this decision was a matter which might influence An Bord’s decision on this reference and afforded an opportunity to comment on the same. The decisions of An Bord Pleanala on references are matters of record and are available for inspection. If a party to a reference wishes it may draw An Bord’s attention to any previous decision of An Bord which it considers relevant whether that decision is favourable to his application or otherwise and in the latter case could seek to distinguish the same.

18. The procedure adopted by An Bord here whereby it made available to each party the submissions of the other for comment fully satisfies the requirements of natural justice. The procedure in fact adopted is cumbersome and results in considerable delay and to proceed as the Applicants suggest would add a further layer of delay. I am not satisfied that the Applicant’s have shown this ground to be substantial and I refuse leave on the same.

19. The Applicants complain of a number of other matters which the inspector took into account in his report and likewise suggest that they should have been afforded an opportunity to comment on the same. In respect of each of the matters relied upon I am again not satisfied that substantial grounds have been shown. In this regard I consider the existence of a full right of Appeal to the High Court as relevant. I regard the procedures adopted by An Bord in this case as fair and fully compliant with the requirements of natural justice.

20. While the Statement to Ground Application for Judicial Review contains other grounds, these were not pursued before me.

21. In the circumstances I grant leave to the Applicant as hereinbefore mentioned to seek the reliefs set out in the Statement to Ground Application for Judicial Review at D (i) (ii) and (iii) upon the grounds set out therein at E (i) 1 and 2 only.