Three Supreme Court judges have unanimously decided the High Court had no jurisdiction in stopping the Irish Rugby Football Union from using its Lansdowne Road stadium for two U2 concerts.
They held there were complex issues to be determined on the status of the stadium in relation to the holding of pop concerts and these would best be determined in judicial review proceedings now pending between the IRFU trustees and Dublin Corporation, the planning authority.
Mrs Justice Denham said that while neither the judicial review proceedings nor any other proceedings acted per se as an automatic bar to a Section 27 application to restrain the holding of the concerts on the grounds that they did not have planning permission, their existence was a relevant consideration.
The judge said Section 27 referred to events occurring in the present or which had occurred in the past. There was no reference to future events.
The clear omission of the reference to future events was consistent with a legislative intention to give to the planning authority powers in relation to future events, but to limit to the public the right to intervene only in present or established events.
Section 27 had been written in clear and plain language. It was not for the courts to legislate. If there was a lacuna in legislation it was appropriate to indicate that gap, but not to fill it.
If there was a policy decision in the legislation, it was a matter for the Oireachtas.
The residents' application had been made with a view to future events. It was clear the section did not give jurisdiction to the court or such a right of application to the residents. In the circumstances the three local residents involved might contemplate applying for a Section 27 order at a later date, raising the prospect of an application by them to ban the pop concerts as they commenced.
However, such an order in favour of the residents at the commencement of the concerts would be inappropriate. There were very complex issues of fact and law in relation to the stadium and its planning status as to the holding of pop concerts. The court, having considered all the affidavits filed, was not in a position to resolve these issues and it was doubtful if they could be resolved on affidavit or without an oral hearing.
Mrs Justice Denham said the plenary hearing, envisaged in the judicial review proceedings and listed for the autumn, was an appropriate process in which to resolve them.
If an application of that nature, whether made now or when the alleged development could be said to have begun, were successful, it would dispose of the contentious issue between the parties as to whether the concerts should go ahead in a peremptory, irreversible and final manner without any plenary hearing.
That of itself would exclude the equitable jurisdiction invoked by the High Court.
Dublin Corporation, while it did initially issue a warning notice, had decided not to press for an order stopping the concerts. Instead it had determined that the planning status of the stadium as to pop concerts should be fully litigated in the judicial review proceedings in the autumn.
This was the authority which had the responsibility for the planning and development of the area. Consequently, an application by way of motion under Section 27 by affidavit on the occurrence of the concerts, which would result in a final order, was not the equitable way to proceed in the circumstances.
Mrs Justice Denham said it was unnecessary in these circumstances for the Supreme Court to express any view on the issue which would ultimately have to be resolved in the judicial review proceedings as to whether the holding of the concerts constituted a development for which planning permission was required.
That would 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 constituted a material change of use.
The question whether the erection of the temporary stage of itself constituted a development for which planning permission was required would be relevant.
The more general issue of whether the planning code was applicable to transient events of this nature, as the residents contended, or whether they were more appropriately controlled by other legislation dealing with traffic and noise abatement, as the IRFU contended, would have to await the full and unhurried consideration which was the characteristic of plenary proceedings in the High Court.
Mrs Justice Denham, Mr Justice Barrington and Mr Justice Keane unanimously held the High Court had no jurisdiction to make a Section 27 order in favour of the residents in relation to an anticipated breach of the planning code.