Supreme Court dismisses appeal on costs, upholding High Court's judicial discretion in planning injunction case.

THE SUPREME COURT

Denham J.

Hardiman J.

McCracken J.

Record No. 221/00

IN THE MATTER OF THE PLANNING ACTS

AND

IN THE MATTER OF S. 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1976

AND

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1992

BETWEEN/

TOMMY GRIMES

Applicant/Appellant

and

PUNCHESTOWN DEVELOPMENTS COMPANY LIMITED AND MCD PROMOTIONS LIMITED

Respondents

Judgment delivered on the 20th day of December, 2002 by Denham J.

1. Appeal

Tommy Grimes, the applicant/appellant, hereinafter referred to as the applicant, brought proceedings under s. 27 of the Local

Government (Planning and Development) Act, 1976 as amended for an injunction restraining Punchestown Developments Company

Limited and MCD Promotions Limited, the respondents, hereinafter referred to as the respondents, from holding a “rave” concert at

Punchestown Race Course on the 24th and 25th day of June, 2000. The only matter in issue on this appeal is the order as to costs.

The relevant grounds of the appeal filed were as follows:

“1. That the Learned Trial Judge erred in law and/or in fact in the exercise of his discretion in making an order that the

Applicant do pay to the Respondents their costs of the proceedings when taxed and ascertained.

2. That the Learned Trial Judge erred in law and and/or in fact:

A. In holding the Applicant liable for costs in circumstances whereby he had in correspondence asked the Respondents if

permission had been granted to which the only information furnished related to an entirely different concert.

B. In holding the Applicant liable for costs in circumstances whereby the only avenue open to the Applicant, in light of the

planning permission restrictions was by way of Section 27 proceedings whereby in relation to an intended concert at

Fairyhouse to be held by the second named Respondent judicial review proceedings seeking to restrain An Bord Pleanala

from hearing the said declaratory application were brought by the said second named Respondent and thereby prevent

any such determination by An Bord Pleanala.

C. In that he failed to have any or any due regard to the fact that the information in relation to prior use in relation to

concerts or similar events was advanced on the eve of the hearing in circumstances whereby the said information must

have been available to them long prior to the initial requests of the Applicant.

. . .”

2. Facts

The applicant commenced proceedings by way of notice of motion dated the 16th day of June, 2000 grounded upon an affidavit of

the same date. The solicitors of the applicant had written to the respondents on the 14th June, 2000 stating, inter alia:

“We act for the above named client who instructs that he objects to the holding of a concert at Punchestown on the above

date.

The reasons for our client’s objections are that the holding of the concert is a clear abuse of the Planning Process. There is no

Planning Permission for the holding of such an event and it is clear from the Planning Permission granted in 1998 that there is an

express prohibition on such concerts as set out in Condition No. 8 Register Ref. No. 1258/98. There is no prior history of such

events being held at this venue. The facilities and surrounding area do not have the capacity to deal with the substantial

numbers of people involved, giving rise to serious concerns for public health and safety risks, additionally this event will cause

substantial inconvenience and disruption which will be caused to those living in the locality. It is also clear from our instructions

that there is substantial local disquiet in relation to the holding of this event.

Our client is, furthermore, concerned that this concert was advertised as a “Rave Concert”.

As you are aware, this concert is advertised as running until 2.30 a.m. which exceeds the times already sought through Planning

Permission.

While Planning Permission has been sought under Planning Ref. No. 99/1752, this Planning Permission has not, in fact, been

granted and we note that Kildare County Council have requested additional information as per their letter of the 6th April, 2000

addressed to Punchestown Developments Company Limited c/o James Toomey Architects, Powerscourt Townhouse Centre, 59

South William Street, Dublin 2.

In all the above circumstances, it is quite clear that the entire concert is unauthorised and unless you confirm within a period of

twenty four hours that no such concert will proceed, an application will be made by our client pursuant to Section 27 of the

Planning Act, 1976, as amended by Local Government (Planning & Development Act) 1994 seeking an Order restraining you from

holding this event.

This was the first notification to the respondents of the applicant’s objections. Solicitors on behalf of the second named respondent

replied by letter dated the 16th June, 2000. That letter stated:

“We act on behalf of MCD Management Services Limited of 7 Park Road, Dun Laoghaire, Co. Dublin.

Your letter addressed to Mr. Denis Desmond of MCD Management Services Limited has been passed onto this office to deal with.

You have expressed concerns about the Creamfields concert which is scheduled to take place at Punchestown on the 24th of

June next. We have carefully considered the contents of your letter which displays a fundamental lack of understanding of the

current legal position regarding the holding of transient events of this nature. The Supreme Court have indicated in Butler v.

Dublin Corporation (1999) 1 I.R. 565 that planning legislation does not apply to transient events. Keane J. indicated that “the

radical controls imposed by (planning) 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.” The Creamfields event does not involve any

change in the use of the lands, any such change, which is denied, is not material in planning terms as the planning effects of

this event are equivalent to those of sporting or racing events. Furthermore the staging of this event involves no change in the

use of the lands and its authorised pre-1964 use is a place of public resort and/or public entertainment.

We fundamentally disagree with your suggestion that Condition no. 8 of Register ref. 1258/98 is of relevance here. Each of

these applications, should it be necessary to make same, which is denied in this case, is to be taken on its merits. In any event

we understand that a submission has been made to Kildare County Council in respect of a proposed concert by the artist

Charlotte Church and at that time, it was confirmed by the County Council that planning permission was not required for such

an event. On this basis, it was clearly not necessary for Punchestown to make an application for planning permission for this

concert.

In your letter, you raise alleged concerns about inconvenience and disruption to those caused in the locality. The existence of

this event has been in the public domain for some months, extensive consultation has taken place in the locality and this is the

first letter or complaint that our client has received from Mr. Grimes who we understand is a resident of Kells which is many

miles away from Punchestown. The time for your client to object to this concert has long since expired and an application for an

injunction in the terms suggested is inappropriate. Furthermore, we wish to take issue with the reference in your letter to this

event being described as a “rave”. The publicity surrounding this concert never makes reference to the word “rave” and your

letter is entirely incorrect in that regard.

The event which is scheduled to take place on the 24th of June has been many months in planning. It involves numerous acts

and the costs associated with the organization, promotion and sponsorship of this event are in excess of £2 million. We presume

that you have appraised Mr. Grimes fully of the fact that should your application take place he will have to give an undertaking

as to damages to the High Court. In such event, our clients will require detailed information as to Mr. Grimes ability to discharge

such an undertaking in the event that his proceedings are ultimately unsuccessful. In the event that Mr. Grimes is in a position

to give that undertaking, we would ask you to advise him, lest he be under any misapprehension, that in the event of this

interim application succeeding but his action ultimately failing, our clients will pursue Mr. Grimes for reimbursement of all their

losses associated with this event.

Please ensure that a copy of this letter is opened to the High Court in the event that your application proceeds.”

The respondents filed a replying affidavit to the motion on the 19th June, 2000. The case proceeded before the High Court on the

20th June, 2000. On the 21st June, 2000 the High Court ordered that the motion be refused and that the applicant do pay to the

respondents their costs of these proceedings when taxed and ascertained. The High Court (Herbert J.), in refusing the application,

found that on the evidence that this matter falls within section 40(b) of the Local Government (Planning and Development) Act, 1963.

He found that the relevant lands had an established occasional use for non-sporting events. He referred to the affidavit evidence as

to the various uses to which the lands were put prior to the 1st October, 1964, apart from their principal use which related to horse

racing and equestrian events. The affidavit of Charles Murlees, Company Secretary and Chief Executive of Punchestown sworn on the

19th June, 2000, included the following:

“6. National Hunt Racing has been the principal activity carried on at Punchestown since the 1850’s. The average attendance

historically for one day racing fixtures is approximately 4,000/5,000 people. However, the four day Irish National Hunt Festival

which takes place in April of each year attracts large crowds. In 2000 for example, the Festival attracted 80,000 racegoers over

the four day period with 25,000 in attendance on the second day.

7. The visit of the Prince of Wales at the turn of the century attracted huge crowds to Punchestown. This event has been

recorded in history and through etchings, watercolours and sketches of a diverse kind.

8. Historically, going back to the early part of the Twentieth Century, the Punchestown Festival Meeting was accompanied by

musical entertainment of all kinds. Typically what occurred was that local hostelries in the immediate area such as Lawlors of

Naas erected their own tent with suitable beverage laid on and musical entertainment provided in each tent. In those years, a

number of musical entertainments would be provided throughout the holding of the Festival. For example, Percy French is on

record together with his friends Charles Manners as having held a concert in Punchestown in 1880.

9. “Walking Sunday” is a local tradition associated with the Punchestown Festival and attracts large sections of the Local

Community who walk around the course on the Sunday prior to the commencement of the Festival. Traditionally, over the years

musical entertainment has been provided on the Sunday. The Army Band has invariably attended and entertained the multitude.

10. Until 1998, each year at the Irish National Hunt Festival, a large funfair was operated either within the confines of the

racetrack itself or within the perimeter of same. This funfair was operated since the early part of the Twentieth Century and

probably during the Nineteenth Century.

11. The premises and facilities at Punchestown Racecourse have been used to stage a number of pop concerts in recent years.

In 1983, a concert featuring Rory Gallagher and U2 was held attracting a crowd of 16,000. A concert featuring Dire Straits was

held in 1984 with an estimated crowd of 20,000.”

The learned trial judge also found that if there was a change of use involved, it was not a material change of use. The learned trial

judge based his decision on facts in the affidavit filed on behalf of the respondents.

3. Submissions

Written and oral submissions were made by the parties. In oral submissions

Mr. Richard Law Nesbitt, S.C., counsel for the applicant, stressed the fact that they had only been furnished with the affidavit on

behalf of the respondents on the 19th June when the case was before the court on the 20th June. He argued also that significance

should be placed on the public watchdog nature by which s. 27 enabled a member of the public to take action. He submitted also that

the learned trial judge had erred in the exercise of his discretion as to costs by reference to matters referred to in the judgment on

the main issue. For example, he submitted that it could be inferred that the learned trial judge had considered the issue of motive as

relevant, that the learned trial judge had not considered, or considered adequately or weighed, the bona fides of the applicant, while

he had done so of the respondents. Written and oral submissions were made on behalf of the respondents. On behalf of the second

named respondent Mr. Colm Allen, S.C. submitted that the learned trial judge had not erred in the exercise of his discretion on the

facts in applying the usual rule that costs follow the event. His submissions were adopted by counsel for the first named respondent.

4. Decision

There is no basis for the applicant to succeed on any alleged delay by the respondents in filing an affidavit. In the time frame which

existed, which had been created by the applicant, the respondent acted reasonably in filing the affidavit on the 19th June,

particularly having regard to the fact that the first notification of any objection was by the letter of the 14th June, 2000.

Consequently, this is not a ground upon which to set aside the exercise of discretion of the learned trial judge.

Counsel on behalf of the respondents laid great stress on the watchdog nature of the role which a member of the public may take

under s. 27 and argued that this was a ground upon which the decision on costs could be set aside. However, it transpired that this

ground was not argued before the High Court. As this is a court of appeal, in general, issues are only determined on appeal when they

have been argued in the court of trial. There is no special reason why this ground, not having been argued in the High Court, may be

canvassed in the appellate court.

In this application the High Court was exercising its discretion in relation to the remedy provided under s. 27 of the Local Government

(Planning and Development) Act, 1963, as amended. See White v. McInerney Construction Ltd. [1995] 1 I.L.R.M. 374, Avenue

Properties Ltd. & John McCabe v. Farrell Homes Ltd. [1982] I.L.R.M. 21. This discretion was also exercised by the High Court in its

determination on the issue of costs. The discretion is exercised in accordance with law. The normal rule is that costs follow the

event. However, there are circumstances when a court on the facts of a case determines that the normal rule will not apply. Indeed,

a successful applicant may not succeed in obtaining an order for costs if the facts indicate features which are unsatisfactory as to

the way in which they acted, see for example Donegal County Council v. O’Donnell Unreported, High Court, O’Hanlon J., June 25th,

1982. The burden is on the party making an application to show that the order for costs should not follow the general rule. In this

case I am of the opinion that the applicant has not discharged this burden so as to take it out of the general rule. There are no such

circumstances in this case which would take it out of the general rule.

In the High Court judgment the learned trial judge identified eight discretionary factors relevant to the substantive issue. It could be

inferred that these were relevant also in his determination as to costs. These factors included the following:

1. That the applicant is a sole applicant, that he is not resident in the area and that he could not suffer any injury or damage

from the event.

2. That there was no evidence from any person closely connected to the area, the planning and development of the area which

is in issue, that indicated or expressed concern on the part of any such persons.

3. That the official watchdog that has been charged with supervising proper planning and development by the Oireachtas

namely the Kildare County Council was aware of the matters and did not proceed under s. 26 or s. 27 of the Act.

4. That there was no evidence of bias on the part of the Planning Authorities towards this type of event or the owners of the

land. The learned trial judge found to the contrary in this case and instanced the conditions imposed in the planning

permissions.

5. The learned trial judge found evidence of a bona fide belief in the respondents, their solicitors and the Planning Authorities

that planning permission was not needed for the event.

6. He considered the evidence that the respondents had incurred substantial costs in progressing the venture. He also

considered the number of people who had paid for tickets and who would be disappointed.

7. The learned trial judge considered that he should consider what was just and proportionate.

8. The learned trial judge considered the nature of a breach, if any, and whether, if it existed, it was serious or not.

9. The learned trial judge considered that the event which was in issue had been widely publicised and known about for a very

considerable time.

10. The learned trial judge also considered the loss to innocent parties (caterers etc.) and the very many public officials, such

as Gardai, Fire and Health, who had participated in the planning.

In exercising his discretion such factors were referred to by the learned trial judge on the substantive issue. It could be inferred that

they were also relevant to his decision on the issue of costs. If they were they were not inappropriate. They indicate a careful

analysis of the facts and surrounding circumstances of the case. They were reasonable factors to consider in the circumstances.

On the specific issues stressed (that the applicant only received the respondents’ affidavit on the 19th June and the watchdog

nature of the remedy) there is no reason to interfere with the exercise of the discretion of the learned trial judge. The time frame was

one created by the applicant, he could not then complain. As to the public watchdog nature of the remedy, that is certainly relevant.

It is relevant to the issue of locus standi first. It may also be relevant to the issue of costs. However, it is only one of many factors

and is not determinative of the matter.

Whilst costs follow the event in general, on occasions the circumstances engage a different result. Thus in F. v. Ireland and the

Attorney General Unreported, Supreme Court, 27th July, 1995, the applicant/appellant had sought unsuccessfully for a declaration

that certain provisions of the Judicial Separation and Family Law Reform Act, 1989 were invalid having regard to the provisions of the

Constitution. He was unsuccessful in both the High Court and Supreme Court. In the High Court the learned trial judge refused to

make any order as to costs and the plaintiff appealed against that order. In the Supreme Court, on the issue of costs, Hamilton C.J.

held:

“The question of the costs of any proceedings before the Court is a matter for the discretion of the judge hearing and

determining such matter.

The Court has considered the judgment of the learned trial judge on the question of costs as contained in Counsel’s note of his

ex-tempore judgment on the question of costs.

The Court is satisfied that the learned trial judge exercised his discretion in this matter judicially and in a proper manner and see

no grounds for interfering with the order made by him in respect of the proceedings before him.

This Court has a discretion with regard to the costs of the proceedings before it.

There is no doubt that the appeal before this Court involved issues of considerable public importance and that it was desirable,

in the public interest, that a decision on the issues involved be reached as early as possible having regard to the situation, in

respect of many orders made pursuant to the provisions of the Act which would arise if the Plaintiff/Appellant had been

successful in his challenge to the impugned provisions of the Act.

There is no doubt but that the Attorney General regarded this case as a “test case” and was anxious that the matter be

disposed of as quickly as possible.

By notice of motion dated the 19th day of October, 1993, the Attorney General sought an order directing that the Circuit Court

appeal be disposed of prior to the determination on the constitutional issues raised in these proceedings.

That application was refused in the High Court (Johnson J.)

The Attorney General by notice dated the 4th day of January 1994 appealed to this Court against such decision but by letter

dated the 18th day of February 1994 withdrew that appeal.

His action in that regard was a clear indication of his desire that the issues raised in these proceedings be determined.

While this case was of considerable importance to the parties involved, it was also of considerable importance to the parties

involved in at least three thousand cases in which orders had already been made under the Judicial Separation and Family Law

Reform Act, 1989.

It was conceded that the wife was entitled to the benefit of the Attorney General’s scheme and the Court will make any

necessary recommendations in that regard.

In the particular circumstances of this case, the Court considers that it should exercise its discretion with regard to the costs

of the proceedings before it by awarding the costs of the appeal to the Plaintiff/Appellant against the Attorney General.”

In this case the High Court had a discretion in awarding costs. There is nothing in the judgment, as to the substantive issue, which

may be inferred as having some relevance to the decision on costs, nor in the specific determination on costs, which indicates an

error on the part of the learned trial judge. Rather, both indicate a careful consideration of all the relevant facts. I am satisfied that

there was no error in the decision of the High Court. Consequently I would uphold the decision on costs.

6. Conclusion

For the reasons stated in this judgment I would dismiss the appeal and affirm the order of the High Court as to costs.