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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Grianan An Aileach Interpretative Centre Co. Ltd. v. Donegal County Council [2003] IEHC 50 (22 August 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/50.html Cite as: [2003] IEHC 50, [2003] 3 IR 572 |
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2003/3027p
BETWEEN
Plaintiff
Defendant
JUDGMENT of Mr Justice Kelly delivered on the 22nd day of August, 2003.
Introduction
On the 17th December, 1998 the defendant granted a planning permission to the plaintiff. The permission was for the "erection of a visitor centre with history exhibition space, nature exhibition space, audiovisual theatre, craft shop, centre of intercultural activity, waiting area and associated facilities plus outdoor pond and a sewage treatment system at Sreenogue, Burt, Co. Donegal". The permission was granted in accordance with the plans submitted with the application for permission and was subject to ten conditions. The ninth condition provided that the use of the premises the subject of the development "shall be restricted to uses indicated on submitted plans and for no other use without prior written agreement of the planning authority".
This case involves a dispute between the parties as to the use to which the premises the subject of the permission can be put.
The case commenced by the issue of a plenary summons on the 6th March, 2003. That was followed by the issue of a notice of motion and an exchange of affidavits in respect of that motion. The parties agreed that the hearing of the motion should be treated as the trial of the action. I heard the action over a number of days last month and this is my judgment on foot of it.
Background
In February, 1988 the plaintiff purchased a disused church situate near the Grianan An Aileach ancient monument in the Burt area of Co Donegal. The hope was that the disused church would be converted into a visitor centre.
In February, 1990 permission for that development was granted. Subsequently the design was modified and a further permission was granted in that regard in July, 1996.
Thereafter the plaintiff purchased a woodland site known as Burt Woods which adjoins the visitor centre which was formerly the disused church. Having done so, a more ambitious project for the development of the area was considered by the plaintiff. In order to further its thoughts on the topic contact was made by directors of the plaintiff with the County Manager of Donegal. He was furnished with updated development plans and by a letter of the 30th May, 1997 made it clear that he was hugely enthusiastic about the expansion which was contemplated.
The County Manager indicated that he was prepared to assist the development in many ways which were set forth in detail in his letter.
Thereafter the directors of the plaintiff met with Bord Failte representatives and officials of the Leader Group so as to obtain a commitment for funding to assist the project. In
December, 1998 an application was made to Bord Failte/International Fund for Ireland and assistance was obtained inter alia from Bord Failte.
On the 28th August, 1998 an application for planning permission was submitted.
The description for the development which was contained in the planning application form was "visitor centre". There were also plans of the proposed development enclosed to which I will return later in this judgment.
By order of the 17th December, 1998 the planning permission in suit was granted subject to ten conditions.
This short history of the background to this dispute would be incomplete if I were not to mention the sole topic upon which oral evidence was tendered in the hearing before me. It concerns a study prepared for the plaintiff entitled "Strategic Development and Marketing Plan for the Grianan An Aileach Centre". The report was prepared by an entity called Tourism Development International Limited and is dated December, 1998. It is convenient to deal with the issues pertaining to this report at this juncture.
The Strategic Development Plan
This report was a very comprehensive one dealing with many aspects of the plaintiff's planned expanded centre. It is not necessary for me to recite in detail the many aspects of the market research programme, competition analysis, product development concept, marketing plan and financial projections which are dealt with in the body of the report.
The plaintiff contends that shortly after receipt of this report and before the decision to grant planning permission three copies of it were delivered to the defendant. Only one copy of the report has any relevance for the purposes of this case. It was one which Ms. Fullerton, a director of the plaintiff, says that she delivered to the planning office of the defendant on the 10th of December, 1998. She told me in evidence that she went to the planning office and handed in
a copy of the report which was contained in a brown envelope addressed by name to the official who was dealing with the planning application. That official gave evidence before me. He became aware of this report for the first time on the night before he gave evidence before me. He gave evidence on the 17th July, 2003. He explained the procedure which operated in the planning office of the defendant when documents were handed in. The normal procedure was that documents would be opened and presented to him and then placed on the file. At the time of receipt they would be date stamped. The document in question never found its way onto the planning file. He swore positively that he did not receive the document and that he did not have sight of it or know of its contents when dealing with the planning application. He did say that if the document had nothing to do with planning matters then it would be referred to another service within the defendant. He also said that there was no interaction whatsoever between him and the County Manager on the adjudication of the application for planning permission.
I accept that the report in question neither found its way onto the planning file nor was it considered by the executive planner charged with responsibility for the application prior to the decision to grant permission being made. Its contents were not known to the planning department of the defendant nor did they or could they have formed any part of its consideration of the application.
In any event I am by no means persuaded that the report in question can truly be called a planning document at all. It appears to me to be more akin to the sort of document that would form part of a case being made for grant aid or finance facilities.
I am satisfied that the decision to grant permission was made without knowledge of the contents of this report and I likewise exclude it from my consideration of this case.
Indeed it would be quite wrong to consider it given that not only were its contents unknown to the defendant but also to any third parties who might have inspected the planning file.
The Position Subsequent to the Grant of Permission
The plaintiff proceeded to carry out the development for which permission was granted. It is common case that it is not as yet complete but the time for completion has not yet expired. Two elements of the development have not yet been carried out. They are the history exhibition section and the audio visual theatre facility. However, what was described as the centre of intercultural activity, the kitchen, waiting area, store rooms, toilets, main entrance and foyer have been completed.
The plaintiff contends that because of what is described as a "neighbour's dispute" concerning two sites in Burt woods and objections raised by an adjoining neighbour the defendant has taken a particular view as to the use to which the centre in suit can be put. The plaintiff contends that a particularly narrow construction on the activities for which the centre may be used has been adopted by the defendant.
The plaintiff contends that the cultural activities which were envisaged for the centre would be in the nature of dancing, music, story telling, poetry, magic and theatrical events and the provision of food. It contends that the defendant has sought to limit these activities to ones solely of Irish culture and indeed, even more narrowly, pre-Christian, early Christian and Irish mediaeval culture.
As an example of this it cites a letter of the 26th March, 2002 which it sent to the defendant enclosing a schedule of events which it was proposing to hold between March and August of that year. It submitted this schedule in conformity with condition no. 9 of the planning permission with a view to obtaining the consent of the defendant for these various functions.
The functions included an Easter and Festival of Light function to be held on the 30th/31st March and 1st April. On Saturday 30th March there was to be a themed supper followed by traditional Irish music with lighting of candles to signify the arrival of Springtime. The
evening was to conclude with further music. The following night there was to be a themed menu with Irish dancing and music, and a lunch was to take place on the Monday with a themed menu. On every Saturday from April to September there were to be what was described as Ulster nights. This involved Irish and Scotch Ulster music, dance, poetry and storytelling with food being available. On each Sunday during this period it was planned to hold a Sunday banquet. It was to involve seasonal food of Irish origin with traditional music being provided for about two hours. On every Thursday from the 18th April to 26th September there were to be storytelling and traditional music evenings. They were to occur from 9.00 p.m. to about 11.30 p.m. and a themed supper was to be provided. On the 27th April, 25th May and 31st August a themed banquet celebrating Irish culture was planned. This was to be a series of banquets through the ages with food representative of a particular era and staff dressed in associated garb. There was also to be entertainment in the form of music, dance, magic and storytelling.
On the 30th April it was planned to hold a fire festival to celebrate Bealtaine. It was to involve a firework display together with a procession of fire and food was to be available. On every Sunday of June, July and August it was planned to hold a banquet. Seasonal food of Irish origin was to be provided together with traditional music. On certain of these dates there was to be Irish dancing, storytelling and poetry together with an educational programme for children by use of the woods and interpretative area.
Music sessions every Monday from the 3rd June to 23rd September were planned. These were described as an open house with session musicians from the North and South invited to attend and demonstrations of various instruments both old and new to be given. Food in the form of a light supper was to be available on these occasions.
On the 3rd and 4th June it was planned to celebrate Queen Elizabeth's Golden Jubilee.
Events planned included a children's party, dog show, craft fair, pipe band and a celebration of music and dance from the Commonwealth with a series of national dances from associated
countries. Food was to be available for these functions which were geared towards visitors from Northern Ireland and Ulster Scotch associations as well as the local market place.
On the 21st June it was planned to have a themed banquet celebrating the summer solstice (Alban Heruin) in music, theatre and dance. There was also to be a mini play depicting the solstice on that occasion. American Independence Day was to be celebrated on the 4th July with a themed menu dating back to the 18th century at the time of independence. Staff were to be dressed in appropriate garb.
On the 31st July there was to be a celebration of Lughnasa. Children were to be encouraged to attend the festivities that day.
The planned programme outlined above was considered by the defendant and by letter of the 11th April, 2002 it made its position clear. In the course of that letter it said that it considered the centre to be first and foremost a visitor centre for tourists to interpret the Grianan Aileach and the adjoining woodlands. It also considered that conferencing should be facilitated and themed banqueting nights on special occasions during the Celtic year should likewise be facilitated. It pointed out that the programme of activities submitted related generally to regular weekly functions and not to special events apart from the Easter Festival of Light, the Bealtaine, Alban Heruin and Lughnasa festivals. The letter went on to point out that it did not consider that the uses apart from the four just mentioned fell within what was permissible. The other activities were not permitted but it was pointed out that a planning application could be made for them.
It is right to point out that the correspondence to which I have just referred was both preceded and followed by correspondence in a similar vein.
Matters came to a head when on the 14th May, 2002 a warning letter was sent by the defendant to the plaintiff. The first paragraph of the letter sets out in essence the contention of the defendant. It read
"It has come to the attention of this council that unauthorised development may have been, is being or may be carried out [on the premises in suit], 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 and authorised under the permission as detailed in correspondence ".
It did not become necessary for the defendant to take any action on foot of the warning letter and indeed in a letter of the 18th September, 2002 it made it clear that it would not issue enforcement proceedings as of then. The plaintiff, for its part, adopted an entirely reasonable and responsible attitude by not proceeding to hold any of the functions for which permission had not been granted.
Meanwhile the plaintiff obviously applied for and obtained a dance licence and on 18th November, 2002 once again sent a schedule of activities to the defendant for its approval. They included what are described as nights of intercultural activities involving (a) Music throughout the ages in New Orleans and the Deep South. (b) An evening of Irish/Scots music celebrating the growth and diversity of Irish and Ulster Scots music and its development. (c) An evening of music demonstrating the link between modern country music and Irish traditional music. (d) A celebration of the intercultural pre-Celtic feast of Winter Solstice involving storytelling, song and dance. (e) A celebration of Spring, the death of Winter, traditional dance from Ulster/Scots tradition, poems and music. (f) A Caribbean Christmas described as a totally different cultural experience featuring Caribbean stories, folklore and food music. It also proposed a number of themed Christmas functions including a Victorian Christmas featuring
music, folk and food from the Victorian era and a themed Dickensian Christmas featuring music and food from that era with emphasis on character dressing.
These proposals were rejected by the defendant. In the course of its reply it said:
"Asset out in my previous letter to you regarding your schedule from March to August 2002, the council considers the centre to be first and foremost a visitor centre while accepting that there may be special events at particular times of the year. As such the council considers that the range of activities set out in your letter of the 18th November, 2002 represented an intensification beyond an ancillary activity to the visitor centre which would be acceptable to the planning authority. You may wish however, as explained in the past, to make a planning application for events associated with a concert/entertainment venue rather than those associated with a visitor centre. I wish to point out that in the event that you should proceed with your plans, the planning authority is likely to institute legal proceedings against the unauthorised development.
I trust that this again makes the council's position clear and that the range and type of activities set out in your letter of the 18th November, 2002 does not comply with condition 9 of your planning permission issued under ref. 98/2124 ".
Again the plaintiff behaved responsibly and did not seek to carry out these functions in the light of the attitude adopted by the defendant.
As a result of all this considerable difficulty has been created for the plaintiff. There is evidence that some of the grant aid for the project has been withheld. Lending institutions are refusing to pay money because they perceive that there is a dispute as to the uses to which the premises may be put as between the plaintiff and the defendant. Monies which are now due on
foot of grant aid to the plaintiff's centre are being withheld and the plaintiff contends that the only way that the issue can be resolved is by these proceedings.
The Proceedings
The first relief claimed is "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 reg. ref. no. 98/2124". Such a declaration is no help insofar as the resolution of the issues in the proceedings are concerned. It does not address the question in dispute. The defendant has never denied the plaintiff's entitlement in this regard.
The second declaration sought is "that the building erected pursuant to planning permission reg. ref. no. 98/2124 may be used for activities in the nature of cultural activities and/or as a centre for intercultural activity". Again this provides no help in resolving the issues in suit.
The third declaration claimed is "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 mediaeval 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".
The reason why such a declaration is sought appears to me to stem from the plaintiff's reading of the defendant's letter of the 11th April, 2002 which granted permission for the four specific events all of which relate exclusively to Celtic culture whilst rejecting the other proposals. Whilst the defendants contend that this is not so and that the objection was not based on a distinction as between Irish culture and the cultures of other countries it is difficult to see how that can be so. If the objection were based (as is claimed) on the use being more consistent with a hotel or entertainment venue what justification was there for refusing the American
Independence Day celebration or the Queen's Golden Jubilee celebration? There were once off functions no different to the Celtic cultural evenings in terms of the use of the premises.
In any event at this juncture the defendant does not object to a declaration in the terms sought since it is accepted now at least that the centre is not limited solely to Irish cultural activities. However, this declaration in the form in which it is sought does not address the real issues which have been identified.
The fourth relief sought although framed as a declaration is not one as such. What is sought is "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 defendants dated the 26th March, 2002". What is really sought is an injunction prohibiting the defendants from taking any steps to prevent the use of premises on dates long since past. The submission of 26th March, 2002 covered activities which were to take place over the following months and no more than that. The grant of an order in the form sought would be otiose and is therefore refused.
The fifth relief seeks "a declaration prohibiting the defendant from taking any steps prohibiting the use of the lands at premises known as Grianan An Aileach Interpretative Centre, Sreenogue, 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 Scots/Irish music celebrating in accordance with the University of Irish and Scots Music, music demonstrating the link between modern country and Irish traditional music, a 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 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".
This declaration, as is evident, is largely reproductive of the sort of events for which permission was sought in the past and refused. Even if granted in this form it must be of limited benefit for future activities unless they are all to be in complete conformity with what was proposed before. If future events were to depart from those described in this fifth declaration further difficulties might well be encountered. In any event it should be recorded that the defendants object to a declaration even in the form sought being granted since it contends the type of activities envisaged are in excess of what the planning permission allows.
In view of the various frailties which I have pointed out concerning the forms of declarations sought I invited counsel at the conclusion of the hearing to formulate a declaration which, if granted, would be of genuine benefit to both parties concerning the future use of the premises. Counsel for the plaintiff proposed the following
"A declaration that the Grianan An Aileach 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 kind but may not be used for non cultural activity for example a nightclub and/or weddings or other such events of a like kind".
This is the form of declaration which is now being sought and in a moment I will turn to a consideration of whether or not the plaintiffs are entitled to it. It is however, appropriate that I should refer to the fact that it contains a negative stipulation concerning the use of the premises for weddings or a nightclub.
When the case opened counsel on behalf of the plaintiff contended that the planning permission extended so as to permit the premises being used for weddings. He wisely, in my view, on the second day of the hearing withdrew any claim to an entitlement to use the premises for that purpose. The reference to nightclubs occurred during the course of the hearing when the
defendant apprehended that on certain of the arguments which were being propounded by the plaintiff the premises might even be sought to be used for such activity. This was particularly so having regard to the fact that a public dance licence has been obtained. The plaintiff disavows any intention to use the premises for such purposes and is content that the court should so declare.
Before considering whether the plaintiff has an entitlement to all or any of the declarations sought I have to consider a number of objections which were raised at the outset by the defendant.
The Declaratory Relief
I have already touched upon the first objection raised by the defendants in that they contend that the first two declarations are entirely moot since there was never a contention by the defendant that the plaintiff would not be entitled to use or develop the land in accordance with the terms of the permission.
The objection which is made to the third declaration is also said to be moot because the defendants have never specifically sought to limit activities in the centre to Irish cultural activities. The defendants rightly concede that this declaration is sought upon a reading which the plaintiffs have chosen to take of the correspondence. In my view having regard to the matters which I have already touched upon concerning the activities for which permission was granted and those for which permission was refused in the letter of the 11th April, 2002 it was not unreasonable for the plaintiff to conclude that activities were being limited to those of an Irish cultural nature.
I agree with the defendants' contention as to the moot nature of the fourth declaration sought.
I have already pointed out the frailties of the fifth declaration.
The defendant however, takes a much more fundamental objection to the grant of any of the declaratory relief which is sought. It is said that the planning code is one of the most regulated areas of law in the jurisdiction. By bringing proceedings seeking declaratory relief it is contended that the plaintiff seeks to override the various legal mechanisms available to have issues of the type in suit dealt with. It is clear that the principal area of conflict between the parties is the use to which the centre can be put and the regularity of such use.
The defendant contends that it is the appropriate body to decide upon the proper planning and development of the area. The court should not, with only limited information available to it, be asked to decide what in fact are the permitted uses of the plaintiff s centre. It is contended that the plaintiff is entitled to use the premises as it sees fit provided it complies with the planning permission. If it does not then the defendant may take enforcement proceedings against it and the question of whether the contended uses are permitted or not will be litigated in the appropriate forum. Reliance is placed by the defendant upon the dictum of Finlay C.J. in O'Keeffe v. An Bord Pleanala [1993] 1 IR 39 where he said at p.71
"Under the provisions of the Planning Act the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenity of an area within the jurisdiction of the planning authorities and the board which would expect 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 ".
The plaintiff contends that it is entitled to obtain the declaratory relief since all it is asking the court to do is to construe the terms of the permission which it was granted. It has
behaved in a responsible way and has come to court in order to have the matter elucidated. It did not do as some developers might, namely proceed with the activity in the teeth of the objection from the council and find itself being prosecuted or the subject of an injunction application. It submits that it should not have to run such a risk but rather should be entitled to come and seek a declaration as to its rights and entitlements. All that it is seeking from the court is the true construction of the permission already granted.
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 in suit. 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 plaintiff's 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 will result in it being prosecuted or injuncted. I am of opinion that it is entitled to apply to this court for declaratory reliefs as to its entitlements. Whether or not the plaintiff is entitled to such reliefs on the facts of this case is a matter to which I now turn.
The Approach to Construction
The way in which a planning permission and planning documents are to be construed was dealt with by McCarthy J. in XJS Investments Limited v Dun Laoghaire Corporation [1987] ILRM 659 where at page 683 he said:
"Certain principles may be stated in respect of the true construction of planning documents:
(a) to state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draughtsman and inviting the accepted canons of construction applicable to such material;
they are to be construed in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning."
Furthermore in construing the permission in suit I bear in mind the observations of Henchy J. in Readymix (Eire) v. Dublin County Council and Another (30th July 1974) where he said:
"Since the permission notified to an applicant and entered in the register is a public document, it must be construed objectively as such, and not in the light of subjective considerations special to the applicant or those responsible for the grant of the permission. Because the permission is an appendage to the title to the property, it may possibly not arise for interpretation until the property is passed into the hands of those who have no knowledge of any special circumstances in which it was granted. "
Later in that judgment he said:-
"The permission, like all public documents, must stand on its own and be construed objectively by the Court as if those involved in its creation were not available to give evidence."
The Planning Application
Earlier in this judgment I set out the description of the development as set out in the planning application form. It is simply described as "A Visitor Centre ". The advertisement in the public press was rather more extensive. The wording of the permission as granted conforms
precisely with what was described in the newspaper advertisement. I have already set out the wording of the permission as granted at the start of this judgment. Whilst there were a number of plans and elevations submitted with the planning application the ones which are most instructive for this exercise are the floor plans. They set out in considerable detail the different areas of exhibition, theatre, intercultural activity and ancillary facilities including a substantial kitchen and waiting area.
As I have already recorded the development is not complete. The history exhibition and the audio-visual theatre shown on the plans have not yet been built. The waiting area has been transformed into a restaurant with the consent of the defendant so as to enable food to be served. It appears that the centre of intercultural activity has been used as an overflow restaurant but no consent has been forthcoming from the defendant in that regard. A special restaurant license and a dance license has been obtained for the premises but these cannot have any bearing upon my decision as to the true construction to be given to the permission as granted.
The real issue in contention
The defendant's real concern is that the plaintiff is attempting to use the premises for a purpose for which they were never intended by reference to the planning permission granted. It believes that the plaintiff is attempting to turn the Centre into a concert and entertainment venue and restaurant. If the plaintiff wishes to expand the use it should apply for a new planning permission says the defendant.
The defendant produces evidence of, for example, signage outside the plaintiff's premises which make it clear that the plaintiff is advertising itself as a fully licensed restaurant with an a la carte and bar food menu. These are uses associated with a hotel or restaurant it is said. The defendant calls attention to, for example, the concert planned by the American Drifters
Group which took place in February 2002 and where the advertisements for that event were it is said, no different, to that for the performances given by this group at other venues. There was nothing in the advertisement to distinguish the concert held at the plaintiff's premises from any other premises. The defendant contends that a Visitor Centre would normally be confined to day time and early evening use and not to the night use sought. Whilst the defendant does not say that there should never be night time activities in the Visitor Centre the frequency of such functions should be much more limited than what is sought by the plaintiff.
Conclusions
The planning application made it clear that the plaintiff wished to provide a Visitor Centre. It was to consist of the history exhibition space, nature exhibition space, audio visual theatre, craft shop, and centre of intercultural activity waiting area and associated facilities. It is quite clear from the plans which were submitted that a large kitchen was to be provided on the premises so there can in my view be no doubt but that catering facilities were clearly envisaged. Indeed the defendant does not seek to contend otherwise and has given its consent for food to be served to visitors in the waiting area even though the plans as submitted do not demonstrate an area described as a restaurant per se. Indeed in its letter of the 17th January 2002 the defendant accepted that the intercultural activity area could be used to facilitate themed banqueting nights and the conferencing activity. Furthermore the same letter made it clear that there was no objection to the Centre being utilized in conjunction with festivals in the North West area provided it was specifically included in the festival brochure as an intrinsic part of the festival activities. That letter made it clear that the provision of food/drinks to visitors to the Centre is also acceptable as an ancillary activity to the Exhibition/Visitor Centre.
I am of opinion that the plans which were submitted did indicate that it was the plaintiff's intention to provide food and drink on the premises ancillary to the activities which would be carried on therein of a cultural nature.
The term "culture" is not of course easily defined. In the concise Oxford Dictionary it is described as "improvement by mental or physical training: intellectual development; particular form, stage, or type of intellectual development or civilization. " In the ordinary understanding of the word it seems to me to cover activities such as music, storytelling, poetry, song and dance. As the permission is for intercultural activities these are not confined to any one particular place or time.
Food and drink may be served on the premises provided that it is incidental and ancillary to the principal use. What cannot occur is that the ancillary use namely the provision of food and drink would eclipse the principal use, that is not what is contemplated by the planning permission and would in effect amount to a material change of use for which a fresh planning permission would be required.
In my view the activities for which permission was sought from the defendant in its schedule of events of the 26th March 2002 all fell within the range of what is permitted under the terms of the permission as granted and the defendant was incorrect in permitting only the limited number of functions which it did. Likewise I am of the view that the matters addressed in the plaintiff's letter of the 18th November 2002 all fell within the terms of what is permitted by the planning permission as granted. I am of opinion that the defendant was incorrect in refusing permission for these activities. The fact that some of the activities were to occur on a regular weekly basis does not, debar them from taking place once they are cultural or intercultural. All of the functions proposed in the schedule of 26th March, 2002 and 18th November, 2002 were such and fell within the use permitted.
In these circumstances I propose to grant a declaration that the plaintiff's Centre may be used for the type of uses set out in the schedule of activities of the 26th March, 2002 and 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.