AN CHÚIRT UACHTARACH
(F)
THE SUPREME COURT
Hamilton CJ,
O’Flaherty J.,
Keane J.,
Murphy J.,
Lynch J.,
(61/98)

BETWEEN:

RONALD RICHARD BUTLER SIR EWART BELL ARTHUR ROBERT DAWSON THOMAS JOSEPH KIERNAN AS TRUSTEES OF THE IRISH RUGBY FOOTBALL UNION

Plaintiffs/Appellants
.v.

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMAN, AND
BURGESSES OF DUBLIN

Defendants/Respondents

[Judgments by O'Flaherty J. and Keane J.; Hamilton C.J., Murphy J. and Lynch J. agree]

Judgment delivered on the 22nd day of January, 1999, by O’Flaherty J.

Introduction

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

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

“Our object in life is to control, foster and develop rugby football in the four provinces of Ireland. [The IRFU] is a federal body. Our development role is a social role as well and the prime fund raising or financial engine of the whole sport is in fact Lansdowne Road which is our prime asset.... We have to use our venue, our asset, as a means of funding a whole range of activities which have to be funded and are non-profit making.”

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

For Resolution

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

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

Confined to Particular Stadium

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

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

Letter from Respondents

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

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

“Re: Lansdowne Road Grounds - Concerts

Dear Sir,

I refer to the holding of concerts at the above location.

I wish to inform you that in light of the recent High Court judgment in the case of Earl of Mountcharles .v. Meath County Council, planning permission is required for the forthcoming concert of Celene Dion. No further concert events should be promoted without first obtaining planning permission.

Yours faithfully”

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

The U2 Concerts

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

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Warning Notice

Dublin Corporation formed the view that the holding of the proposed concerts by U2 constituted an unauthorised use of the lands by the IRFU and by notice dated the 30th June, 1997, they required that the “said unauthorised use of the lands shall not take place as proposed” and required that the IRFU “ensure compliance with this notice”. This warning notice was served pursuant to s. 26 of the Local Government (Planning and Development) Act, 1976, as amended by s. 33 of the Local Government (Planning and Development) Act, 1992.

Liberty to Seek Judicial Review

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

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

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prejudice to the entitlement of the Corporation to assert that their stance was a correct one.

Section 3 of the Local Government (Planning and Development) Act, 1963, (hereinafter “the 1963 Act”) provides that “development” means, save where the context otherwise requires, the carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land. In their statement of claim, delivered in these present proceedings, the trustees asserted that the use of the Lansdowne Road grounds for the staging of pop concerts does not represent an unauthorised use of the said lands and gave particulars as follows:-

(i)	The staging of the said pop concert is merely a continuance of the existing use of the land as a national public stadium;

(ii)	In so far as the use of the said national public stadium might be regarded as different from the use of the said lands for sporting events, any such change is not material in planning terms and accordingly, would not represent an unauthorised use of the lands;

(iii)	Further, or in the alternative, in so far as the use of the lands for the staging of a pop concert might be regarded as a change in the use of the lands, the minimal duration of any such change cannot be regarded as “material” in planning terms, in that it would give rise to no infrastructural planning considerations nor would the planning authority

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need to consider any matters which would not have been considered had an application for the current use been made on the 1st of October, 1964.

(iv)	Further, or in the alternative, the use of the lands for the staging of pop concerts has been an occasional use of the lands since prior to the 1st of October, 1964, within the meaning of s. 40 of the Local Government (Planning and Development) Act, 1963.

(v)	Further, or in the alternative, the continued use of the lands for the staging of pop concerts is immune from enforcement action by virtue of the expiration of time, and in particular, having regard to the provisions of s. 26 (3A) of the Local Government (Planning and Development) Act, 1976 (as amended).

(vi)	Further, or in the alternative, the use of the lands for the staging of pop concerts is an occasional use of the said lands and as such does not constitute development within the meaning of s. 3 of the Local Government (Planning and Development) Act, 1963.

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

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

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that the erection of such a temporary stage has no lasting effects on the lands so as to be regarded as an act of “construction” within the meaning of the definition of “development” in the planning code.

The s. 27 Proceedings and Judgment

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

“It is unnecessary in these circumstances for this Court to express any view on the issue which will ultimately have to be resolved in the judicial review proceedings as to whether the holding of an event such as this at the Lansdowne Road stadium constitutes a development within the meaning of s. 3 of the Local Government

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(Planning and Development) Act, 1963, for which permission under that Act is required. That will require consideration of whether, given the existing use of the lands for the holding of sporting events, the holding of occasional pop concerts attracting large crowds constitutes a material change of use. The applicability of the decision of the High Court in Mountcharles .v. Meath County Council [1997] 1 ILRM 446 will almost certainly be a relevant issue. So too will the question as to whether - as contended by counsel for the applicants - the erection of the temporary stage of itself constitutes a development for which planning permission is required. The more general issue as to whether the planning code is applicable to transient events of this nature - as the applicants contend - or whether they are more appropriately controlled by other legislation dealing with traffic and noise abatement - as the respondents argue - will have to await the full and unhurried consideration which is the characteristic of plenary proceedings in the High Court.”

Proceedings in the High Court

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

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within the meaning of s. 3 of the Local Government (Planning and Development) Act, 1963, for which planning permission is required under the Local Government (Planning and Development) Acts, 1963 to 1993. His order is dated 26th February, 1998.

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

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

(i)	Amplified sound over at least two hours;

(ii)	The event takes from the opening of the gates which is about 5.00 pm or 6.00 pm until plus seven hours;

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(iii)	The adaptation of the stadium takes an average of 7.3 days before the concert, including the day of the concert, and one and half days after the concert. That adaptation can give rise to an effect on the amenities of adjoining residential properties.

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

“I am saying that it is possible to hold sporting events without adaptation. It is not possible to hold concert events without adaptation. In order to adapt a stadium for concerts, you must bring a very considerable amount of equipment into the stadium and that has to be delivered by heavy goods vehicles and the erection of a stage. Usually it takes place with the assistance of a crane. It is not essential for that type of equipment to be brought into a sporting event.”

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

“My test would be based to a certain extent on common sense and judgment in that in order to hold a concert, you must actually pitch the level of sound above that of the audience. That is not necessary at a football match. You also sustain that sound over a

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period of two hours minimum... .this would affect all of the residents immediately adjoining the stadium in question.”

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

Monaghan County Council .v. Brogan

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

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

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noticed that it was not conceded by the respondents that such an operation was in existence at all.) Keane J. said as follows at p. 338 of the report:-

“It is true that neither of the planning officers in the present case referred in their evidence to any different matters that they would have taken into consideration had an application for planning permission been made now rather than on the appointed day. It is, however, in my view, for the court to determine whether or not there has been a material change in the use of land when an application is made under s. 27. No doubt, as Lord Parker C.J. pointed out in East Barnet Urban District Council .v. British Transport Commission [1962] 2 Q.B. 484, ‘material’ in this context means ‘material for planning purposes’. Whether or not it is so material must be determined by the court as a matter of fact and the absence of any evidence as to the views of the planning authority on the matter is not crucial. It would be strange if it were otherwise, since a person other than the planning authority can set in motion the machinery under s. 27 and there is nothing in the wording of the section to suggestion that his right to do so may be stultified simply because the planning authority have taken a view, which may or may not be in law correct, that no material change in use is involved. I do not think it is necessarily the case that Barron J. was indicating a different view of the law in the passage on which Mr. Bradley relied so strongly, but if he were doing so, I would with respect differ from him. Nor does the absence of objections to the use in question seem to me a crucial factor in determining whether there is or is not a material change of use. Clearly evidence that a particular use is

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affecting persons in the neighbourhood of the alleged development is a factor to be taken into account in determining whether the change of use is material. The absence of such objections, however, need not be crucial; it may well be that at the stage when a permission is applied for and advertised in accordance with the appropriate regulations, objections will be forthcoming and the weight to be attached to them in determining whether or not permission should be granted will at that stage be a matter for the planning authority.”

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

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Material Change of Use?

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

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

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drawn out procedures for obtaining a planning permission: publication of notices; application to the relevant planning authority; possible third party involvement; rights of appeal to an Bord Pleanala with the possibility of one or more judicial review applications along the way.

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

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which is a concept that finds expression in the Constitution. But that is not to say that they do not retain their entitlements as landowners, subject to statute and common law.

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

An Incongruous Situation?

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

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Patterson .v. Murphy [1978] ILRM 85; Dublin County Council .v. Tallaght Block Company Ltd. [1982] ILRM 534, Supreme Court, unreported, 17th May, 1983; Carrick Hall Holdings Ltd. .v. Dublin Corporation [1983] ILRM 268 and Dublin County Council .v. Carty Builders and Company Ltd. [1987] IR 355) but, speaking for myself, I do not have much faith in the concept of intensification of use. It is a purely judge made invention and, as such - where there are statutory provisions that make no mention of this concept - it must be kept on a tight reign.

Section 40 of the 1963 Act

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

“Nothwithstanding anything in this Part of this Act, permission shall not be required under this Part of this Act -

(a)	in the case of land which, on the appointed day, is being used temporarily for a purpose other than the purpose for which it is normally used, in respect of the resumption of the use of the land for the last-mentioned purpose;

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(b)	in the case of land which, on the appointed day, is normally used for one purpose and is also used on occasions, whether at regular intervals or not, for any other purpose, in respect of the use of the land for that other purpose on similar occasions after the appointed day;

(c) ….”

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

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

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1876 (other than rugby football games) is set out in the appendix to this judgment.

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

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

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

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appropriate in the context of a rugby game. The modern concert will have a great array of such accoutrements - and indeed they will be much more elaborate - but the principle is not affected.

Earl of Mountcharles .v. Meath County Council

Since the Earl of Mountcharles case was the catalyst for this present litigation, some analysis of it is required. By contrast to the present proceedings, in that case it was accepted that the use of the land for the holding of rock concerts was, and remains, an unauthorised use but contended it was now immune from enforcement action as it had become part of the normal use of lands. The Earl of Mounthcharles argued that the land (part of his ancestral demesne) now had a normal use consisting of two different activities, viz, the staging of pop concerts on an annual basis in addition to an authorised agricultural use. This authorised dual use, it was submitted, continued in excess of five years prior to the service of the warning notice. So he sought an order quashing the warning notice that had been served. Peter Kelly J. in following the approach of the Court of Appeal in England in Webber .v. Minister of Housing and Local Government [1968] 1 WLR 29 went on to review the manner in which the land had been used over a period so as to come to a conclusion as to what can be said to be its normal user. The learned judge

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felt the right approach was to look back for a period of fifteen years from the service of the warning notice to 1981. He went on to say at p.457 of the report:-

“If I am satisfied that the use of the lands in suit for concert purposes can be regarded as normal and that that use has not changed or been abandoned during the five years prior to the service of the notice then the applicant ought to succeed.”

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

“...the applicant has failed to demonstrate that the holding of rock concerts on the land in question was carried on to a sufficient extent and with sufficient regularity to constitute part of the normal use of those lands. Rather I am of the view that it was an occasional use. When the activity was carried on the normal use of the land (which was agricultural) was changed to that of use for a pop concert and when the pop concert came to an end the lands reverted to their normal use for agricultural purposes.

As it is conceded the activity in question is one for which planning permission is required it follows that a permission was required on each occasion upon which a pop concert was carried out. Future pop concerts must likewise be subject to planning permission from the respondent before they can be carried on in a lawful fashion.”

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

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

Non-Relevance of the Exemption Regulations

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

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Time Limits for Another Day

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

Footnote

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

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case of the U2 concerts and he was very disappointed about that. It is important that the lesson learned from the holding of these concerts is not forgotten.

Conclusion

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

Judgment 268
JO’F - DO’C

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APPENDIX

Non Rugby Union events in the Lansdowne Road Ground since 1876

1.	5th June, 1876, International Athletics between Ireland and England.
2.	8th, 9th and 10th April, 1918, the sale of pure bred bulls by the Royal Dublin Society.
3.	2nd, 4th, 7th, 9th, 11th and 14th September, 1929, Civic Week Council -military tattoos including massed bands, massed physical training and musical double, gymnastic display, figure marching and fireworks and flags and figures etc.
4.	18th June to the 4th July, 1932, the First Eucharistic Congress - CBSI Camp.
5.	1st May to 1st September, 1932 - Irish Times Staff Club - Cricket and Lawn Tennis.
6.	1st May to 1st September, 1936 - Irish Times Staff Club - Cricket and Lawn Tennis.
7.	1st May to 1st September, 1938 - Irish Times Staff Club - Cricket and Lawn Tennis.
8.	26th August, 1948 - Clonliffe Harriers International Meeting
9.	8th and 9th June, 1949 - Clonliffe Harriers International Meeting
10.	13th July, 1947 - International Athletics
11.	4th July, 1951 - International Athletics
12.	12th June, 1950 - Dun Laoghaire Civic Cycling Week
13.	4th and 5th July, 14th, 15th and 16th August, 1950 - Clonliffe Harrier Sports
14.	5th August, 1950 - All Ireland Pipe Band Championships
15.	25th June and 10th August, 1956 - Clonliffe Harrier Sports

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16.	1956 - St. John’s Ambulance Brigade Silver Jubilee
17.	24th June, 1957 - Clonliffe Athletics Meeting
18.	26th June, 1957 - Amateur Athletic Union
19.	24th July, 1957 - Rehabilitation Institute International Athletic Meeting
20.	29th July, 1957 - Clonliffe Harrier and Crusaders Athletic Meeting
21.	15th August, 1957 - Catholic Student Games Athletic Meeting
22.	19th November, 1988 - American Football - West Point .v. Boston College
23.	3rd and 4th May, 1989 - Concert: The Ultimate Event Frank Sinatra, Liza Minnelli, Sammy Davis Jnr.
24.	2nd December, 1989 - American Football - Rutgers University .v. Pittsburgh University.
25.	25th July, 1992 - Concert: Michael Jackson
26.	19th June, 1993 - The Girls Brigade: Centenary Parade
27.	23rd September, 1995 - Concert: Voices of the World
28.	October, 1996 - IRFU Stewards Training Exercise involving Garda, Fire, Eastern Health Board, St. John’s Ambulance, Boy Scouts, Civil Defence.
29.	1995, Ryan Air 10th Anniversary Celebrations
30.	12th June, 1997 - Concert: Celine Dion
31.	30th and 31st August, 1997 - Concert: U2

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THE SUPREME COURT
Hamilton, C.J.
O ‘Flaherty, J.
Keane, J.
Murphy, J.
Lynch, J.

BETWEEN

RONALD RICHARD BUTLER, SIR EWART BELL, ARTHUR ROBERT DAWSON, THOMAS JOSEPH KIERNAN AS TRUSTEES OF THE IRISH RUGBY FOOTBALL UNION
Plaintiffs/Appellants
AND

THE RIGHT HONOURABLE THE LORD MAYOR
ALDERMEN AND BURGESSES OF DUBLIN
Defendants/Respondents

JUDGMENT delivered on the 22nd day of January, 1999, by Keane, J.

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

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having regard to s.40 of the 1963 Act: I agree with what he has said on this matter and there is nothing which I can usefully add.

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

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

Section 3(1) of the 1963 Act, on which the resolution of this case depends, provides:-

“‘Development’ in this Act, means, save where the context otherwise requires, the carrying out of any works on, in, or under

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land, or the making of any material change in the use of any structures or other land.”

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

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

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the legislation were not intended to apply to changes in use which were so fleeting in their nature that they could properly be regarded as not material in planning terms.

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

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

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appropriate authorities, dealing with matters such as the sale of alcohol, the creation of noise and the generation of traffic. Moreover, circumstances may arise where the change of use is effected so repeatedly that it constitutes what has come to be called in the authorities an “intensification” of use which may indeed be a material change in use in planning terms: see the judgment of this court in Readymix (Eire) Limited v. Dublin County Council (unreported; 30th July 1974); Patterson v. Murphy [1978] ILRM 85; and Carrickhall Holdings Ltd v. Dublin Corporation [1983] ILRM 268.

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

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

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also makes it an attractive venue, from the point of view of the organisers, for the staging of other events attracting such audiences, including pop concerts. Beginning with the modestly entitled “Ultimate Event” of 3rd and 4th May 1989 which starred Frank Sinatra, Liza Minnelli, and Sammy Davis, Junior, it has been so used on five such occasions in the past nine years (Michael Jackson, Voices of the World, Celine Dion and U2). It is not in dispute that the legislature has provided machinery intended to ensure the protection of patrons attending such an event and the public in general (including, in particular, the residents in the area) from the various hazards to which such events inevitably give rise. But the character of the use to which the stadium is put cannot, it seems to me, be regarded as being materially altered in planning terms by such fleeting changes in its use, the duration of which, over a period of nine years, did not exceed in total more than a few days.

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

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or operations being carried on that the original use must be regarded as having been materially changed. One man digging up stones in a field and carrying them away in a wheelbarrow for a few hours each week may be succeeded by fleets of bulldozers, JCBs and lorries extracting and carrying away huge volumes of rock from the same site. The use in both instances may properly be described as “quarrying”, but that its intensification to a particular degree may constitute a material change in the original use is, I think, not merely borne out by the authorities to which I have referred, but is consistent with the underlying policy of the 1963 Act and the amending legislation of ensuring that significant changes in the physical characteristics of the environment are subjected to planning control. Whether that point has been reached is a question of fact - or, it may be, a mixed question of fact and law - to be decided by An Bord Pleanala pursuant to s.5( 1) of the 1963 Act or, where appropriate, by the courts. For the purposes of the present case it is sufficient to say that the holding of the events at the intervals to which I have referred could not, in my view, be regarded as a material change in the use of the Lansdowne Road stadium.

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

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

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

“Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures.”

I would also allow the appeal.