In the matter of the Local Government (Planning and Development) Acts 1963- 1993

And in the Matter of Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by Section 19(4)(g) of the Local Gov- ernment (Planning and Development) Act 1992.

John Mahon, Sharon McGrath and Oonagh O'Reilly (applicants/ respondents) v Ronald Richard Butler, Sir Ewart Bell, Arthur Ronald Dawson, Thomas Joseph Kiernan as Trustees of the Irish Rugby Football Union (respondents/ appellants).

Local Authority - Planning and Development - Appeal - Order made restraining the respondents from holding pop concerts at Lansdowne stadium - Whether court has jurisdiction to grant injunction under section 27 where anticipated breach - Whether statutory jurisdiction of the court could be extended by way of equitable jurisdiction - Whether other proceedings act as a bar to section 27 application - Local Government (Planning and Development) Act 1976 (No 20), sections 26, 27 - Local Government (Planning and Development) Act 1992 (No 14), section 19(4)(g).

The Supreme Court (before Mrs Justice Denham, Mr Justice Barrington and Mr Justice Keane); judgment delivered 1 August 1997.

THE scheme of the 1976 Act, as amended, is clear. Under Section 26 the planning authority is empowered to take certain actions if a breach of planning control is likely to take place or is continuing to take place. The "watch dog" power in this section is given to the planning authority and it covers current and future events. Section 27 empowers a planning authority or "any other person" to make an application to court in certain circumstances. It enables members of the public, whether or not they have an interest in land, to apply. It refers plainly to events occurring in the present or which have occurred in the past. There is no reference to future events. In view of the fact that section 27 gives powers to members of the public over land whether or not they have interest in the land, the clear omission of the reference to future events is consistent with a legislative intention to give to the planning authority powers in relation to future events in their planning area but to limit to the public (and in a section 27 procedure the planning authority also) the right to intervene only in present or established events.

Section 27 provides a precise statutory remedy. In making an order under that section the court cannot exceed the jurisdiction conferred by that section. It is a clear and comprehensive code which should be construed strictly. The court has a discretion to exercise in a section 27 application but that is within the ambit of the section and is not to extend the jurisdiction.

While neither judicial review proceedings nor any other proceedings act per se as an automatic bar to a section 27 application their existence is a relevant consideration.

The Supreme Court so held in allowing the appeal.

Eamon Galligan BL for the applicants/ respondents; Colm Allen SC and Garrett Simons BL for the respondents/ appellants.

MRS JUSTICE DENHAM said that this was an appeal by the respondents/ appellants, trustees of the Irish Rugby Football Union (hereinafter referred to as the trustees) against a judgment of the High Court delivered 28 July 1997 restraining the trustees from using the lands including the main pitch and general stadium at the Irish Rugby Football Union grounds at Lansdowne Road, Dublin 4, for the purpose of pop concerts, on 30 and 31 August 1997. The applicants/ respondents (hereinafter referred to as the residents) were three local residents of the area. The residents issued a plenary summons on 17 July 1997 which sought against the Irish Rugby Football Union injunctive relief, orders under section 27 of the 1976 Act as amended, relief from acts of nuisance and trespass and damages. On the same day they filed a motion seeking, inter alia, restraining orders in relation to unauthorised use of the main pitch and general stadium at the trustees' lands at Landsdowne Road, restraining orders in relation to the holding of a pop concertt, an order requiring the trustees to act in accordance with cited planning permission and an injunction restraining them from breaching section 24 of the 1963 Act as amended and acting otherwise than with planning permission.

The only application which proceeded in the High Court was an application for an order pursuant to section 27 of the 1976 Act as amended. On that application the High Court judge made an order that the trustees, their servants or agents licensees and all persons having knowledge of the making of the order be restrained from using the lands including the main pitch and general stadium at the Irish Rugby Football Union Grounds at Landsdowne Road, Dublin 4, for the purpose of a pop concert on 30 and 31 August 1997. The trustees appealed against that judgment and raised three preliminary issues.

The first issue concerned the judicial review proceedings. It was submitted that the section 27 procedure under the 1976 Act as amended, which is a summary procedure, was inappropriate to resolve the factual and legal issues involved. It was further submitted that the Supreme Court, in granting leave to seek judicial review in Butler v Dublin Corporation, directed that the that application proceed by plenary summons. Consequently it was inappropriate to proceed in this matter on affidavit. The said judicial review proceedings were in being and in the next list to fix dates in the autumn. The appropriate forum to determine the planning status of the stadium at Landsdowne Road was those judicial review proceedings by way of plenary hearing. It was submitted on behalf of the residents, that the judicial review proceedings would not be heard until after the two pop concerts and thus the present proceedings were necessary, if the residents' rights were not to be rendered nugatory. Further, it was pointed out that the residents were not a party to those intended proceedings and it was argued that these section 27 "fire brigade" proceedings were appropriate.

The second issue concerned anticipated breach. It was submitted on behalf of the trustees that section 27 does not permit an application for an anticipated breach of the planning code. Counsel for the residents relied on the judgment of the High Court and argued in the alternative that there was a continuing unauthorised use since the Celine Dion concert earlier this year and consequently the section would apply.

Finally, it was argued that the remedy under section 27 is a specific statutory injunction. It was not an injunction under the general equitable jurisdiction of the High Court and consequently it did not encompass that jurisdiction. For the residents it was submitted that the court had an equitable jurisdiction to issue a quia timet injunction under section 27.

Mrs Justice Denham proceeded to examine the issue of anticipated breach. She said that the preliminary submission was that the High Court had no jurisdiction to grant an injunction under section 27 of the 1976 Act, as amended, because the wording of the section does not permit such an application in relation to an anticipated breach of the planning code. On that issue the learned High Court judge had held that it was clear that the jurisdiction is conferred on the High Court and the Circuit Court to make orders where illegal development "has been or is being carried out or unauthorised use is being made of the land". But, he said that both courts have jurisdiction to grant equitable relief and this includes the making of orders restraining anticipated illegal acts. He continued that if therefore there is conferred by law on the court a special jurisdiction to make orders in respect of specified wrongful acts which are taking place, or have taken place, it seemed to him that the court is also empowered (unless expressly prohibited from doing so) to exercise its equitable jurisdiction to prohibit the anticipated commission of those wrongful acts.

The High Court judge said that if this was not so then an unacceptable situation would arise. He said that if the court should hold that the staging of a pop concert amounted to a material change in the use of the land then permission would be required for each concert which the land owner proposed to stage. If this obligation was ignored there would be no power under the section if the defendants were correct to apply to prohibit the anticipated wrongful act, and the applicant (be it the planning authority or a private person) would have to wait until the concert had actually commenced before applying under the section. He did not think that the Oireachtas intended that the section should be construed in this way. Mrs Justice Denham said that section 26 provides, inter alia, as follows:

"(1) Where it appears to a planning authority that (a) land is being or is likely to be developed in contravention of section 24 of the principal Act, or

(b) any unauthorised use is being or is likely to be made of land,

the planning authority may serve on the owner of the land a notice (in this section subsequently referred to as a warning notice)".

She contrasted this wording with that of section 27 which provides:

"Where (a) development of land, being development for which a permission is required under Part IV of the Principal Act, has been carried out, or is being carried out, without such permission, or

(b) an unauthorised use is being made of land,

the High Court . . . may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate (i) that the development or unauthorised use is not con- tinued,

(ii) in so far as is practicable, that the land is restored to its condition prior to the commencement of the development or unauthorised use." (The emphasis was Mrs Justice Denham's.)

Mrs Justice Denham said that thus section 27 empowers a planning authority or "any other person" to make an application to court in certain circumstances. It enables members of the public, whether or not they have an interest in the land, to apply. However, the section limits the right to make the application to situations where "(a) development of land . . . has been carried out, or is being carried out, without permission, or (b) an authorised use is being made of land . . ." Mrs Justice Denham said that it refers plainly to events occurring in the present or which have occurred in the past. There is no reference to future events. There are no words such as, in section 26, the words " . . . likely to be . . ." She said that the planning code should be construed strictly. Actions can and do have grave financial and social repercussions. The Oireachtas has legislated to give powers to planning authorities and to members of the public in certain circumstances. Section 27 is written in clear and plain language. It is not for the courts to legislate. If there is a lacuna in legislation then it is appropriate to indicate that gap - but not to fill it. If there is a policy decision in the legislation then that is a matter for the Oireachtas.

Counsel for the residents made an alternative submission that the holding of concerts had been a continuous unauthorised use since the Celine Dion concert. However, if the series of concerts held by the trustees since 1989 was an unauthorised use then they would have the benefit of the five-year rule and be protected. It was submitted that the unauthorised use had been abandoned after the Michael Jackson concert in 1992 and recommenced at the Celine Dion concert in 1997 and thus that the unauthorised use had been in existence since then and thus the action was presently continuing and section 27 applied.

Mrs Justice Denham said that on the facts in this motion, and conscious that the matter would be analysed more fully in judicial review proceedings to be taken later, it was clear that the residents had not made out the case that a continuous unauthorised use recommenced at the Celine Dion concert earlier this year. Consequently, the issue to be determined related to the holding of two concerts at the end of August, a future event, to which section 27 did not apply.

The learned High Court judge in making a decision under section 27 of the 1976 Act, as amended, in relation to future events had exceeded his jurisdiction. There is no statutory power in section 27 of the 1976 Act, as amended, to make an order in relation to an anticipated breach and thus the trustees'application on this submission succeeded.

Mrs Justice Denham said that the trustees' third preliminary submission was that the remedy under section 27 is a statutory injunction which is distinct from the general equitable jurisdiction of the High Court and that the learned High Court judge had no jurisdiction to expand the statute by invoking the court's equitable jurisdiction. Mrs Justice Denham was satisfied that this was correct. The learned High Court judge fell into error in construing the section so as to empower the court to exercise its equitable jurisdiction to prohibit the anticipated commission of those wrongful acts (see Dublin County Council v Kirby [1985] ILRM 325 and Dunnes Stores Ltd v Mandate [1996] 1 ILRM 384).

Mrs Justice Denham pointed out that the order under appeal in this case, if upheld, would determine in a final, peremptory and irreversible fashion a bona fide dispute between the parties as to whether the holding of the concerts at the end of August required planning permission. This would be done without the usual machinery of pleadings, discovery, and particulars and without any opportunity for the parties to adduce oral evidence. There are, of course, cases in which the parties agreed to treat the hearing of an interlocutory injunction as the trial of the action: this was not one of them. She said that there may even be rare and exceptional cases where the wrongdoing of the defendant is so patent that the court would make a final order without awaiting the trial of the action: this was not one of them. It was not surprising that no authority had been cited which would justify the making of such an order.

Mrs Justice Denham said that the final and irreversible nature of the High Court order was graphically illustrated by the fact that the residents had refused at any stage to give an undertaking to be responsible for the damages sustained by the trustees, in the event of its being established at the trial of the proceedings commenced by plenary summons that the order should not have been made. Such an undertaking is required as a matter of course where the court is asked to grant an interlocutory injunction. The failure of the residents to give any such undertaking was consistent, and only consistent, with this being an order of a final, as opposed to an interlocutory nature. Mrs Justice Denham was satisfied that it was one which the court had not jurisdiction to make. Further, as she pointed out, the making of an order of this nature - except where expressly authorised by the terms of section 27 - runs counter to a fundamental legal principle i.e. that an injunction should not normally issue to restrain the commission of an offence - which the holding of this event without planning permission would amount to - save at the instance of the Attorney General and even in that case only in exceptional circumstances.

Consequently, she was satisfied that the trustees must succeed on their third preliminary issue.

The first preliminary issue raised by counsel for the trustees related to the pending judicial review case. The facts relating to that litigation commenced with a warning notice served pursuant to section 26 of the 1976 Act as amended which stated, inter alia:

"It appears to . . . the Corporation of Dublin . . . Planning Authority for the County Borough of Dublin that an unauthorised use of the football grounds for the staging of a concert by U2 and others towards the end of August this year is to be made of the land referred to in the schedule of this Notice in contravention of Section 24 of the Local Government (Planning and Development) Act 1963 (i.e. otherwise than under and in accordance with a permission required under that Act). The Corporation of Dublin by this notice requires that the said unauthorised use of land shall not take place as proposed." The notice went on to require the trustees to take adequate steps to ensure compliance with the notice and to warn that proceedings under section 26 of the 1976 Act may be brought by the Corporation of Dublin against them. There were discussions in the matter and the trustees then instituted High Court proceedings by way of an application for judicial review against Dublin Corporation, seeking to quash the said warning notice and seeking declarations as to the planning status of its stadium in relation to the staging of pop concerts. An application was made, in the usual way, to the High Court, for leave to apply for judicial review. The application was refused on 8 July 1997 but on appeal of the refusal to the Supreme Court, the appeal was allowed and the trustees were given leave to apply for judicial review of orders seeking to quash the warning notice and seeking declarations as to the planning status of the stadium at Lansdowne Road in relation to the staging of pop concerts.

These judicial review proceedings are thus in being. By consent Dublin Corporation had agreed that they would take no further action to enforce the warning notice pending the hearing of the judicial review action. Mrs Justice Denham said that it was clear that these judicial review proceedings by plenary hearing would enable the trustees and Dublin Corporation to litigate fully the facts and complex law involved in the matter of staging pop concerts at the trustees' stadium at Lansdowne Road. She said that the judicial review proceedings were not per se a bar to section 27 proceedings. The parties are different and litigants do not lose a right to pursue a section 27 motion (all else being in order) merely because of other pending proceedings. It may be that one arena is the more appropriate in certain circumstances to ventilate fully the facts and the law. Mrs Justice Denham said that in the circumstances the residents might comtemplate applying for a section 27 order in relation to the pop concerts as they commence. She said that while neither the judicial review proceedings nor any other proceedings act per se as an automatic bar to a section 27 application their existence was a relevant consideration. In considering a section 27 application a court has a discretion and the factors which would carry weight in exercising that discretion include:

(a) the pending judicial review litigation,

(b) the complexity of the facts and law involved in that litigation which mirrors the issues on the existing or any proposed section 27 application,and

(c) the attitude of the planning authority for an area as to that litigation and the pop concerts in question. Mrs Justice Denham said that in the circumstances a section 27 order in favour of the residents at the commencementof the two pop concerts at the end of August would be inappropriate. There were very complex issues of fact and law in relation to the statium and its planning status as to the holding of pop concerts. The court, having considered all the affidavits filed, was not in the position to resolve these issues and it was doubtful if they could be resolved on affidavit or without an oral hearing. The plenary hearing, envisaged in the judicial review proceedings, listed for the autumn, was an appropriate process in which to resolve them. She pointed out that if an application of that nature - whether made then or when the alleged development could be said to have begun - was successful, it would have disposed of the contentious issue between the parties as to whether the August concerts should have gone ahead in a peremptory, irreversible and final manner without any plenary hearing. That of itself would have excluded the equitable jurisdiction invoked by the learned High Court judge. Mrs Justice Denham said that the planning authority for the area, while it did initially issue a warning notice, had decided not to press for an order stopping these two 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 is the authority which has the responsibility for the planning and development of the area. Consequently, an application by way of motion under section 27 of the 1976 Act, as amended, by way of 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 believed that it was unnecessary in these circumstances for the 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 section 3 of the 1963 Act 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 Earl of 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 residents - 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 residents contend - or whether they are more appropriately controlled by other legislation dealing with traffic and noise abatement - as the trustees argue - will have to await the full and unhurried consideration which is the characteristic of plenary proceedings in the High Court. Mrs Justice Denham concluded that 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 nor did it have the jurisdiction to extend the statutory jurisdiction by way of the general equitable jurisdiction of the High Court.

The appeal was allowed.

MR JUSTICE BARRINGTON and MR JUSTICE KEANE concurred with the judgment of Mrs Justice Denham.

Solicitors: W.G. Bradley & Son (Dublin) for the applicants/ respondents; Beauchamps (Dublin) for the respondents/ appellants.