Judgment was reserved by the Supreme Court yesterday on a challenge by the trustees of the Irish Rugby Football Union to a High Court decision that planning permission is required for pop concerts at Lansdowne Road.
Mr Colm Allen SC, with Mr Garrett Simons, for the trustees, said it was the first case in which the application of planning legislation to pop concerts was fully before the Supreme Court.
Mr Allen invited the five-judge court, presided over by the Chief Justice, Mr Hamilton, to consider the question of the very applicability of planning legislation to transient events such as pop concerts.
Counsel rejected the submission by Dublin Corporation that each pop concert represents a discrete act of development for which permission is required. Planning permission was never intended, he said, to regulate transient events.
Last February the President of the High Court, Mr Justice Morris, granted a declaration in favour of Dublin Corporation to the effect that planning permission is required for pop concerts.
Some local residents had objected to the concerts taking place but, eventually, the Supreme Court decided the concerts could be held on a once-off basis and they went ahead on August 30th and 31st, 1997. Experts monitored the noise levels and presented their conclusions to the High Court.
In his judgment on the trustees' challenge last February, Mr Justice Morris said he was satisfied the alteration in the level and duration of noise during the U2 concerts represented a material change of use from the holding of sporting fixtures in the stadium.
He noted the accepted standard of 75 decibels was exceeded at all stages of the U2 concert on August 30th. The judge also accepted the evidence of two residents that the noise levels caused them great distress. One woman was moved by the promoters to a hotel for the night. He also accepted the amplified noise was such that one could not read, and that the television picture would jump so one could not watch it.
The judge said that when one looked at the entire history of the Lansdowne stadium from 1876, or took the five years to June 1997 or any other period in between, one must conclude the grounds were used only on rare occasions for staging musical events.
In their appeal yesterday to the Supreme Court against Mr Justice Morris's decision and subsequent declaration that planning permission is required for pop concerts at Lansdowne Road, Mr Allen submitted that the staging of the concerts must be seen in the context of the use made of Lansdowne Road.
The stadium was regularly used for large-scale sporting events which had a significant impact on the surrounding area in terms of traffic noise, pedestrian movement and litter. That impact was similar to a pop concert.
Any difference in noise levels could not, of itself, amount to a material change in use of the lands, Mr Allen argued.
Mr George Brady SC, with Ms Carol O'Farrell, for the Corporation, rejected those arguments. While he accepted there could be different uses of the Lansdowne Road grounds, he said that was not the issue before the court.
There was no established use of Lansdowne Road for pop concerts or musical events and the use of the stadium for such events constituted a material change of use for which permission was required, he said.
The Corporation also argued that the use of the stadium for pop concerts does not constitute an occasional use of the grounds under the planning acts. It said the established and normal use of Lansdowne Road is for the playing of football matches and the holding of pop concerts there was not part of that normal use.
The argument by the IRFU that the character of the use of land can be established only over a period of time was also rejected.
The characteristics of land use would be apparent within a short period, the Corporation submitted. The use history of Lansdowne Road did not establish a recurring use for concerts, or for other non-sporting events.
At the conclusion of the appeal yesterday, the Chief Justice said the court would reserve judgment. He trusted there would be no pop concerts at Lansdowne Road in the meantime.
