Promoters can lodge new application but time running out
Published 05/07/2014 | 02:30
THE Garth Brooks concerts are no different from any other major outdoor event in that the organiser is required to obtain a licence from the relevant planning authority before it can proceed – in this case Dublin City Council.
Before the landmark Planning and Development Act of 2000 was enacted, it was assumed that full planning permission was required for such outdoor events.
In 1993, permission for the development of Croke Park was granted by An Bord Pleanala who attached a condition limiting the total number of concerts to three per year.
There was anecdotal evidence around that time that the requirement for planning permission was not consistently applied by all local authorities.
By the late 1990s, several court judgments raised further uncertainty about whether planning permission was required at all for transient events such as pop concerts.
Senior Counsel Garrett Simons in his seminal work, 'Planning and Development Law', traces this uncertainty back to a 1999 Supreme Court action involving planning permission for two U2 concerts at Lansdowne Road.
The Butler v Dublin City Council ruling indicated that a fleeting change in use of lands – such as that of a one- or two-day pop concert – would not represent a material change in use such as to trigger a requirement to obtain planning permission.
As a result, U2 played their gigs and the government responded to the uncertainties with a new licensing scheme.
The present regime was introduced by Section 230 of the Planning and Development Act 2000, with detailed regulations published in 2001 outlining the legal requirements for the licensing of outdoor events.
Under the new regime, any event organiser intending to put on one or more outdoor events where the total audience exceeds 5,000 people is required to apply to the relevant local authority for a licence.
The organiser must publish advertisements of its intention to apply for a licence within two weeks of the application, which itself must be made not later than 10 weeks from the date of the first event.
The local authority may not reach a decision until five weeks have passed from the date of the application, thus ensuring the public has sufficient time to make submissions.
On reaching its decision, the local authority can attach conditions about public safety, environmental protection and the avoidance or minimisation of disruption to the neighbourhood.
It can also take into account the number of events which are permitted at a venue within a specified period.
All of these were taken into consideration and cited as reasons by Dublin City Council when it attached 19 conditions to the licence for three Garth Brooks concerts.
Accordingly, the reasons appear to be based on solid legal considerations as specified in the Act. There is no mechanism in the 2000 Act to appeal a decision on a licence application to An Bord Pleanala.
If the licence application is not for planning permission, it does not fall under the general appeal provision of the Act.
So, it seems that any person aggrieved with the decision has two stark options: live with it, or apply for judicial review of the decision, the latter carrying the possibility of significant legal costs for the losing party and delays for all.
Could it have been handled any differently?
It is arguable that it was open to members of Dublin City Council, before the final decision was made, to avail of extraordinary powers allowing one-third of the elected members to pass a special resolution at a specially convened meeting.
With the requisite notice, the councillors could have – under the special resolution process – required a particular act to be done, ie, the granting of a licence for all five concerts.
But having made its decision, Dublin City Council cannot revisit it. There is no apparent case law precedent for this step in an event- licensing situation.
But there are cases where planning permission was directed to be granted, so it is arguable that such a requirement could have been made before the decision was reached on the licence application.
The promoters could lodge a fresh application.
However time is now rapidly running out.
And with the concerts just weeks away, no lawfully made decision could be reached in that short time.
Niall Handy is a barrister in general practice, with specialist expertise in planning and development law, local government, judicial review and technology