The Supreme Court has cleared the way for pop concerts to be held at Lansdowne Road with a decision yesterday that such concerts may be held without the necessity of applying for planning permission.
The five-judge court unanimously overturned a High Court ruling last year which agreed with a claim by Dublin Corporation that planning permission was necessary before concerts could be held at the venue.
Yesterday Mr Justice O'Flaherty said the case was concerned purely with Lansdowne Road and, while the debate that took place in regard to it might have some relevance for two similar Dublin venues, Croke Park and the RDS, it had nothing to "say" to smaller venues.
There had been mention in the course of evidence about certain greyhound tracks which would, in the normal way, hold 7,000 or 8,000 and at a stretch, if the track itself were availed of, might accommodate 20,000. But this case had nothing to say to that situation.
Mr Justice O'Flaherty said the case was concerned with Lansdowne Road, a ground with a spectator capacity of about 40,000 people "and, to repeat myself, is concerned with the single, solitary question of how the planning code impinges on the holding of such events as pop concerts in this particular ground."
On the application of Mr Colm Allen SC, for the IRFU, costs of both the High Court and Supreme Court hearings were allowed to the IRFU.
The dispute over whether planning permission was required for Lansdowne Road followed a High Court ruling in 1996 on the requirement for planning permission for concerts at Slane.
Dublin Corporation had said planning permission was required for a Celine Dion concert at Lansdowne Road. A promoter, Mr Oliver Barry, had also agreed to hold two U2 concerts at Lansdowne Road in 1997, and an eventual accommodation was reached under which the U2 concerts went ahead.
In February 1998 the High Court declared that the use of the Lansdowne Road grounds for pop concerts and other musical events and/or non-sporting events constituted development within the meaning of the 1963 planning legislation for which planning permission was required.
The IRFU had claimed staging pop concerts at its ground did not involve an unauthorised use of the ground because it involved no change in the use from the pre-1964 authorised use as a national public stadium.
Mr Justice O'Flaherty said it was solely on the ground of the alteration, level and duration of the noise during the U2 concerts that the High Court had concluded that a material change of use was involved from the holding of sporting events in the grounds.
He was of the view that the basis on which the trial judge decided the case - the matter of noise - was, in a planning context, of no relevance.
One might as well say that crowd noise at a soccer match was greater than at a rugby match. No one would suggest there was a difference in the use of the stadium between the two types of sport simply because of such a difference in noise levels.
Mr Justice O'Flaherty said that while pop concerts had not been performed at Lansdowne Road before 1964, other musical events had been. A pop concert was very different from the more restrained performances of those days. "Now there is much more action on the stage, with much gyrations by the performers; a degree of audience participation in the agony and ecstasy that these events tend to precipitate; and without any doubt, much greater amplification.
"Life, however, does not stand still. The game of rugby itself and its ethos has no doubt undergone profound changes since 1964."
If in October 1964 an informed observer had been asked what use was made of Lansdowne, that observer would surely reply: "For the playing of rugby and on occasion also for other sporting, social and musical events".
Mr Justice O'Flaherty said the basis of his judgment was that the normal use for the lands was for the playing of rugby football; other occasional uses had been made in the past and, therefore, were permitted for the present and for the future under Section 40 of the 1963 Act.
He added that as a matter of good citizenry as well as preserving the rights of the residents, it was important for the future that noise-level requirements should be observed.
In a separate judgment, Mr Justice Keane referred to the holding of the "Ultimate Event" with Frank Sinatra, Liza Minnelli and Sammy Davis jnr at Lansdowne in 1989, and to other concerts there: Michael Jackson, Voices of the World, Celine Dion and U2.
He said it was not in dispute that the legislature had provided machinery intended to ensure the protection of patrons attending such an event and the public in general - including, in particular, residents in the area - from the various hazards to which such events inevitably gave rise.
"But the character of the use to which the stadium is put cannot, it seems to me, be regarded as being materially altered in planning terms by such fleeting changes in its use."