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1. The Applicant is the owner of Slane Castle Demesne, County Meath. That estate comprises in excess of 600 acres of land. The Respondent is the planning authority for the area in which the demesne is situate.

2. In these proceedings, the Applicant seeks to quash a warning notice which was served on him pursuant to Section 26 of the Local Government (Planning & Development) Act, 1976 as amended. That notice was dated the 17th September, 1996. It recited that it appeared to the Respondent that an unauthorised use of part of Slane Castle Estate was likely to be made by the carrying on of an unauthorised musical concert or performance thereon. The notice went on to require that this unauthorised use should not commence. In addition, it warned that proceedings might be taken if there was a failure to comply with the requirements of the notice.

3. In order to understand the basis upon which it is said this notice should be quashed, it is necessary that I set forth a brief history of the lands in respect of which the notice was served.

4. Up until 1981, the lands in respect of which the notice was served had been used purely for agricultural purposes. These lands, which amount to about 22 acres in all, are part of the entire demesne which has at all material times been used for agricultural purposes.

5. In 1981, there was held on these lands, the first of a series of open air concerts. Planning permission was not sought for this or any of the subsequent concerts which were held on the same site. Similar open air concerts were held in 1982, 1984, 1985, 1986, 1987, 1992, 1993 and 1995.

6. These open air concerts attracted very large numbers of people ranging from as few as 20,000 to as many as 100,000 approximately.

7. The evidence satisfies me that these concerts were of considerable assistance to the local economy but I am also satisfied that they gave rise to a good deal of disquiet on the part of persons resident in the general area.

8. The Affidavit of Mr. Foley sworn on behalf of the Respondent sets out in considerable detail the sort of problems which were encountered with these concerts going right back to 1982. These difficulties included robberies, violence, riots, drug offences, drunkenness, stabbings and drownings. So bad was the situation that on one occasion the local District Judge held a special sitting of the District Court in Slane Village from 10.00 a.m. to 10.00 p.m. on the day of the concert in order to deal with offenders.

9. In the light of this evidence, I do not accept the contention made on oath by the Applicant that every open air concert " passed off without major incident ".

10. Given this history, it is perhaps remarkable that the Respondent did not take any action of the type which is now challenged in these proceedings until the current year.

11. As far back as 1984, the Respondent was engaged in correspondence with the Department of the Environment arising out of the problems encountered at the open air rock concert of that year. In subsequent years, such correspondence was conducted with the Departments of Justice and the Environment.

12. Far from seeking to restrain such events as being in breach of the Planning Acts, the local authority cooperated in the organisation of these concerts from 1992 onwards. Mr. Foley confirms in his Affidavits that consultations involving the Respondent have taken place concerning the organisation of these concerts since 1992. There has been exhibited the minutes of meetings held in 1995 to plan for the concert of that year which were attended by officials of the Respondent with no suggestion being made that such an event required planning permission.

13. All of this changed in 1996. I am told by Counsel that the reason for this change was that, for the first time, the Respondent in common with other local authorities realised that concerts of this type might fall within the ambit of the Planning Act. That was, it is said, not generally appreciated prior to the present year.

14. On the 9th April, 1996, the Respondent wrote to the Applicant advising him that it was the Respondent's opinion that the holding of a concert at Slane Castle was a development which required planning permission. He was furthermore informed that if he wished to hold any such concert in the future, he would have to obtain such a permission. This letter was responded to on the 18th April, 1996 and a meeting took place between the Applicant and the Respondent's representatives on the 23rd May, 1996. At that meeting, the Respondent's representatives made it quite clear that planning permission would be required for any open air concert in the future. Because of this, the Applicant announced that no concert would take place in 1996 nor did one.

15. On the 23rd July, 1996, the Applicant wrote to the Respondent indicating that he had obtained the advice of Counsel. I set out that letter in full:-

16. That letter was replied to on the 2nd August, 1996 in the following terms:-

17. This letter was replied to on the 9th August, 1996. In that letter, the Applicant made it clear that it was his intention to proceed with the concert in 1997 without making a planning application. He furthermore pointed out that he was involved at that stage in extensive planning and negotiation in relation to the event.

18. The Applicant wrote to the Respondent again on the 16th August, 1996 expressing both surprise and disappointment at the Council's attitude. He pointed out that he had been holding these concerts over a period of 15 years and was at a loss to know why the Council felt the need to refer the matter to the Courts at that stage. He asked the Council to revise its attitude on the matter. That letter was acknowledged on the 29th August, 1996 and finally, on the 12th September, 1996, the Applicant again wrote to the Respondent. In the course of that letter, he pointed out that he had furnished the Respondent with the legal opinion which he had received and wished to make it clear that he was proceeding with the 1997 concert, arrangements in respect of which were by then "very specific". He went on to point out that he had been verbally informed by the Council that he was to receive a warning notice. This is indeed what happened and it is that notice which it is now sought to quash in these proceedings.

19. On the 25th September, 1996, leave was given by McCracken J. to seek judicial review of the notice issued by the Respondent to which I have already referred. it is the Applicant's contention that this warning notice is barred by the statutory provisions contained in Section 26(3A) of the Local Government (Planning & Development) Act (as amended) which provides that such a warning notice " shall not be served after the expiration of a period of five years beginning on the day on which such unauthorised use first commenced ". The Applicant argues that the alleged unauthorised use commenced in August 1981 and, accordingly, the service of the warning notice in this case is prohibited by the foregoing provision.

20. In making this application, the Applicant accepts

21. What he does say however is that the use of the lands in question on an annual or semi-annual basis for the purposes of open air concerts became in effect part of the normal use of the lands albeit that such was unauthorised.

22. The Respondent for its part contends that the concerts involved for the short periods of their duration a material change of use requiring planning permission but that such user never became part of the normal use and, accordingly, they are not time barred with their Warning Notice.

23. After the conclusion of the Applicant's case and when the Respondent's case had begun, leave was sought to adduce additional evidence on the part of the Applicant. I gave leave so to do and the Respondent was afforded an opportunity to file additional evidence in response if required.

24. The new Affidavit evidence from the Applicant was filed with a view to demonstrating the existence of permanent features on the lands in suit which are referable to the holding of the concerts in question.

25. It is alleged by the Applicant that major improvements were carried out in 1982 to an entrance to the site which now serves as the main exit. This consisted in widening the entrance which is now 40 feet wide approximately and providing a concrete apron designed to take crowd control barriers which is 50 feet approximately in length with retaining concrete block walls and four linked steel sheeted gates 10 feet high approximately. The Respondent alleges that whilst the entrance may have been widened in 1982, the steel sheeted gates were only erected since 1992. The Applicant counters by saying that they were put in place in 1982 but that their height was increased in recent years.

26. The second permanent feature alleged to exist is a new entrance between the farmyard and the avenue which enables heavy vehicles and trucks to travel to the backstage area. This work was completed in 1981. There is no controversy concerning this.

27. The third feature is a roadway at the rear of the castle which was reinforced and improved to enable heavy trucks and vehicles to travel to the backstage area. Again, there is no controversy in relation to this.

28. The next feature relied on is that the old front drive to the main entrance to the castle was improved and made accessible to facilitate persons attending the concert and coming from the Dublin direction. The Applicant says that this roadway, which is one mile from the site, is cleaned and prepared for every concert. Again, this is not controverted. The next feature relied on is the existence of extensive security chain linked fencing approximately 8 feet in height which is set in concrete and was installed on the site. It is said on behalf of the Respondent that there is approximately 400 metres of security fencing erected along the bank of the river and immediately to the front of the castle forecourt. This was additional fencing which was erected in or around 1992.

29. The Applicant also avers that other improvements were carried out on the concert site during the 1980s including the installation of telephone lines and poles to facilitate the backstage area, ducting under the backstage roadway to carry water and power, the installation of a grassed hard-core area in the backstage area to facilitate the movement of heavy vehicles and to assist in vehicle movements during the construction of the stage in bad weather. Furthermore, in 1984, two concrete urinals were installed, one on the front drive and one on Lady's Walk. Certain other works were carried out in 1992 but they do not appear to me to be relevant to what I have to consider here since that was well within the five year period relied upon by the Applicant. None of these works apparently were the subject of a planning application to the Respondent and they contend that planning permission was required for them. I have had photographic evidence of these works produced to me. They demonstrate fairly rudimentary works of the type described in this part of the judgment.

30. Finally, evidence was proffered that although the concerts themselves are staged for a single day, work commences on the site about two weeks before the concert occurs. Subsequent to the concert, decommissioning of the site must take place and that also takes about two weeks or thereabouts. Substantial numbers of persons are involved in these works.

31. It is alleged by the Applicant that the holding of the rock concerts constitutes the most intensive use of the concert site during any annual period since they commenced in 1981 and, furthermore, is the most significant source of income from those lands. Apart from contending that I am not entitled to have regard to such matter, the Respondent says that during the 15 years since the concerts first commenced, there were only nine concerts held in all. There was a period of five years between 1987 and 1992 when there were no concerts at all. They furthermore say that even with the works which have been carried out, the agricultural nature and usage of the property in suit was not altered. They have put in evidence three aerial photographs of the site taken in 1973, 1986 and 1991 which demonstrate an essentially agricultural use of the site in question.

32. The issue which I have to address in this case is one which I am told has not been the subject of determination by an Irish Court. It is this. Can it be said that the Applicant's lands, the subject matter of the warning notice, have a normal use which consists of two different activities and which has continued for a period in excess of five years prior to the 17th September, 1996? If it can and if in fact it has acquired a second activity as part of its normal use, namely, the staging of pop concerts in addition to the agricultural activities, then the Respondent's warning notice is time barred. If, on the other hand, the holding of each concert is to be regarded as a separate development for which planning permission was required on each occasion, since it involved a material change of use from agricultural use to concert use and did not become part of the normal use, then the service of the warning notice is not prohibited.

33. The legal issue involved in this case has attracted the attention of the English Courts. The principal authority which is relied upon by the Applicant is the decision of the Court of Appeal in Webber -v- Minister of Housing and Local Government (1967) 3 All E.R. 981.

34. In that case, the appellant farmer used his four acre field for a camping site between Easter and September and, in the winter, for grazing cattle, except on Saturdays when it was used for football. This seasonal use had been followed since April 1960. He appealed against an enforcement notice served on him in September 1965 requiring him to remove the caravans from the site. A ground of appeal was that the enforcement notice had not been served within four years as required by Section 45(2)(a) of the Town and Country Planning Act, 1962. So far as material, that statutory provision provided

35. It was held by the Court of Appeal that the field's normal use could be determined by looking at its use from year to year over a considerable period, and so regarded, the field's normal use from year to year was for two purposes viz.: winter grazing and summer camping; this normal use had continued for over four years before the enforcement notice was served, and the seasonal change from camping to grazing or vice-versa did not involve a material change in use for the purposes of the planning legislation.

36. In the course of his judgment, Lord Denning M.R. said:-

37. In the course of his judgment, Diplock L.J. (as he then was) said:-

38. Later in the same judgment, he said:-

39. In the course of his judgment Edmund Davies L.J. (as he then was) said:-

40. The approach of the Court of Appeal in Webber's case appears to me to be sound, persuasive and to have implications for the present case. I am of opinion that land may have as part of its normal use different particular uses or activities. I accept the submission of the Applicant that the question whether a particular activity forms part of the normal use of the land is a question of fact and degree in each particular case. That much appears to me to be acknowledged by the judgments in Webber's case.

41. I therefore propose to approach this case by reviewing the manner in which the land has been used over a period so as to come to a conclusion as to what can be said to be its normal user. In taking that approach two matters which were at issue between the parties call for attention. The first concerns the period over which this review should take place. The second concerns the portion of the lands of the demesne which ought to be considered.

42. The Respondent submits that the appropriate period to be taken for determining what use is made of the land is the period of five years prior to the service of the Warning Notice in September 1996. The Applicant on the other hand contends that I ought to look at the period from 1981 onwards.

43. Because of the limitation period of five years which is prescribed by the legislation, I must certainly look at the position which obtained during the five years prior to the service of the Notice but in attempting to ascertain the normal user of the land I do not think that I am confined to such period.

44. If one looks at the five year period immediately prior to the service of the Notice there is an immediate difficulty from the Applicant's point of view. No concert was held in 1991 or 1994. Indeed none was held in 1996 but that was only as a result of the intervention of the Respondent. The failure to hold a concert in 1991 and 1994 means that there was no actual user of the lands in those years for concert purposes. So therefore in the five years in question only three concerts were held.

45. Given the history of the land which I have outlined, it appears to me that it would be more appropriate that I should seek to ascertain what is the normal use of the land by reference to the longer period of fifteen years going back to 1981. If I am satisfied that the use of the lands in suit for concert purposes can be regarded as normal and that that use has not changed or been abandoned during the five years prior to the service of the Notice then the Applicant ought to succeed.

46. In so far as the land which is to be the subject matter of my examination is concerned, the Applicant contends that it should be confined to the twenty-two acres upon which the concerts have been carried out. He says that the warning notice does not relate to the demesne as a whole but only to a part of it and must clearly be referable to that part upon which the concerts have traditionally been held. The Respondent on the other hand contends that I must look to the demesne as a whole and that therefore the use of this particular twenty-two acres forms a very small part indeed of the entire demesne which is used for agricultural purposes.

47. I believe the Applicant to be correct in the contention which he makes on this question. It appears to me that I am only concerned here with the land which is the subject matter of the Warning Notice. It is common case that that relates to approximately twenty-two acres of the demesne upon which the rock concerts have traditionally been held. Before leaving this part of the Judgment I should mention that a number of other English authorities were cited. The principal one relied on by the Respondent was that of the Court of Appeal in South Buckinghamshire District Council -v- Secretary of State for the Environment (58 P. & C.R.121). The facts of that case were that a company called Strandmill Limited held a market on grazing land at Beaconsfield on Sunday 1st December, 1985 and on seven Sundays in January and early February 1986. The Appellant Council then served a direction under Article 4 of Schedule 1 to the Town and Country Planning General Development Order 1977 stating that the permission that existed by virtue of Article 3 of the Order was not to apply to the holding of markets. Strandmill held a market on three further Sundays in defiance of the Direction. The Council then served an Enforcement Notice on Strandmill on 14th March, 1986 and also issued a Stop Notice. Strandmill appealed against the Enforcement Notice to the Secretary of State. An inspector acting on behalf of the Secretary of State allowed the appeal on the grounds that once the first market had been held in December 1985, Strandmill became entitled to hold markets on fourteen days in the calendar year and the Council were not entitled to serve a Direction under Article 4. As Strandmill had only held seven of the remaining thirteen at the time that the Council served its Direction, they were still entitled to hold the next three markets and so there had been no breach of planning control. The Council appealed to the High Court where their appeal was dismissed. They then appealed to the Court of Appeal. In that Court the appeal was allowed. It was held by the Court of Appeal that the development permitted by Article 3 of the Town and Country Planning General Development Order 1977 occurred when there was a change of use on the Sunday when the land was actually used for the holding of a market and the development ceased when the land reverted to normal agricultural use for the rest of the week. There was then a fresh development on the next occasion that the land was used to hold a market. Consequently the local planning authority had been entitled to serve the Direction on the 19th February, 1986 under Article 4 of Schedule 1 to the 1977 Order stating that the permission under that Order should not apply to the holding of markets. The decision was therefore valid in law and the Enforcement Notice was also valid.

48. In my view this case is largely confined to a consideration of regulations which are peculiar to it and it has little bearing on the present case. It does have a relevance, however, in one respect. In the course of his Judgment Nicholls L. J. (as he then was) said this at page 129:-

49. This accords with the approach adopted by Diplock L. J. in the Webber case where he regarded it as natural to consider that land was used for two activities

50. It seems to me therefore that in so far as that Lord Justice was concerned he did not regard his decision as in any way departing from or diluting the views expressed by the Court of Appeal in Webber's case.

51. I therefore propose to adopt the approach of the Court of Appeal in Webber's case to the facts of the present case.

52. The Concise Oxford Dictionary defines normal as "conforming to a standard; regular, usual, typical". In my view the question of normal use should be approached without giving to that term any unusual or esoteric meaning. I have already accepted the notion that the normal use of land may involve more than one activity being carried on and it may be used for two purposes. However, it appears to me that before each activity could be regarded as part of the normal use of the land each would have to be recurrent and would have to account for a substantial part of the total amount of activity taking place on the land during the appropriate period. It is necessary to decide whether a particular activity is carried on to a sufficient extent and with sufficient regularity to constitute part of the normal use. This is the test which is formulated by Diplock L.J. in Webber's case.

53. In approaching this task the first thing to note is that this case is far removed on its facts from Webber's case. I have already set forth in short form the facts of that case. There there was a seasonal use over a period of years where the lands were used as a camping site between Easter and September and were used in the winter for grazing cattle. Seasonal use had gone on in each year since April 1960. Given that history it is hardly surprising that the Court came to the conclusion which it did. As I have said on its facts this case is far removed from that.

54. In my view applying the test which I have indicated and which was adumbrated by Diplock L.J. in Webber's case, I have come to the conclusion that it cannot be said that the staging of pop concerts on the site the subject of the warning notice has become part of the normal user of that site. I do not believe that the activity was sufficiently recurrent nor do I accept that it accounted for a sufficiently substantial part of the total amount of activity taking place on the land.

55. I have come to this conclusion having regard to the following facts:-

56. The Applicant submits that in addition to considering the time associated with the use and the physical structures on the land I ought also to take into account:-

57. I am very doubtful as to whether it is appropriate that these matters should be taken into account at all in deciding a question as to what the normal use of the land is. But even assuming that they are appropriate to be considered they do not appear to me to advance the Applicant's case in demonstrating that the concert activity could be regarded as part of the normal use of the lands.

58. In my view the Applicant has failed to demonstrate that the holding of rock concerts on the land in question was carried on to a sufficient extent and with sufficient regularity to constitute part of the normal use of those lands. Rather I am of the view that it was an occasional use. When the activity was carried on the normal use of the lands (which was agricultural) was changed to that of use for a pop concert and when the pop concert came to an end the lands reverted to their normal use for agricultural purposes.

59. As it is conceded that the activity in question is one for which planning permission is required it follows that a permission was required on each occasion upon which a pop concert was carried out. Future pop concerts must likewise be subject to planning permission from the Respondent before they can be carried on in a lawful fashion.

60. It follows therefore that this Application fails and I refuse to quash the warning notice which has been served upon the Applicant.