The High Court refused an application by Amphitheatre Ireland Limited to stop HSS Developments and HSS, trading as the Mansfield Group, from hosting Disney on Ice at the Citywest convention centre. The court held that the proposed show was a public function within the planning permission and found no basis to grant relief over a separate condition requiring an agreement on patron numbers.
The judgment was delivered by Mr Justice Hedigan on 22 October 2009. The application was brought under section 160 of the Planning and Development Act 2000, which allows the court to order steps to address unauthorised development.
An Bord Pleanála granted permission in July 2008 for the convention centre, subject to conditions. Condition 3 restricted its use to a convention centre or function room and prohibited public concerts. Condition 4 capped the number of patrons in the convention centre complex at 4,161 and required the developer to enter a legally binding section 47 agreement with the planning authority.
The applicant argued that Disney on Ice, planned for 27 December 2009 to 3 January 2010, was a prohibited public concert or otherwise fell outside the permitted uses. It also argued that the respondents had not complied with Condition 4 because no agreement had been concluded. Separately, it contended that the planning permission could not validly be relied on because of European Community law.
The judge rejected the argument that Disney on Ice was a concert, explaining that a concert would ordinarily be primarily about hearing music. He found that the show was instead a public function, taking account of the broad ordinary meaning of “function,” the permission’s reference to Citywest’s established uses, and evidence of similar past events there. Condition 3 therefore did not prevent the respondents from hosting the show.
On Condition 4, the respondents had sent a draft agreement to the Council in February 2009 and had received no response. The judgment noted that the Council had recorded concerns and proposed amendments, but there was no evidence of a breach or likely breach of the patron limit. The judge said the respondents might be in technical breach because the agreement remained unsigned, but that this did not justify an order under section 160. He took account of the Council’s decision not to take enforcement action and the public interest in the event and the Citywest complex. He said the Council should return to the agreement issue by accepting the draft or identifying proposed amendments.
The court also rejected the European law argument as an impermissible collateral challenge to the validity of the planning permission in these proceedings. It refused the application in full; it did not invalidate or amend the planning permission, and it made no order requiring the section 47 agreement to be concluded.