RFU lose in Court of Appeal

12.00.00am BST (GMT +0100) Fri 2nd Aug 2002

The Court of Appeal on 17 July told the Rugby Football Union that they DO need planning permission to hold concerts at their Twickenham Stadium.

This judgement supports the view of Richmond Council, upheld by a Government Planning Inspector and by the High Court.

The RFU case was that they don't need planning permission to hold concerts in their stadium because it is a "concert hall", or alternatively that the term "recreation" in planning law can cover concerts as well as rugby matches. However, at the same time as claiming that they didn't need planning permission, they did get consent for concerts on appeal after Richmond Council refused permission in April 2001. But this consent restricts the RFU to three concerts a year, only between June and October, and with strict conditions.

The three Court of Appeal judges, the High Court judge and the Government Planning Inspector all dismissed the RFU's arguments. They all agreed that if the stadium doesn't have a roof, it can't be a "concert hall". And if "recreation" is defined as widely as the RFU claimed, to include activities such as bridge tournaments, stamp collecting, and chess competitions, it would be meaningless.

Lib Dem Councillor Sir David Williams, Chair of the RFU Events Community Consultative Committee, welcomed the court's decision. "I hope the RFU now accepts that concerts can only take place under the planning permission they have, with all the restrictions to protect the local community from unreasonable disturbance. If the RFU want to win the support of the local community they should accept this defeat as being in their best long term interest."

(Attached are the reports of the Court of Appeal and the High Court.)

RUGBY FOOTBALL UNION v SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT & THE REGIONS (2002) CA (Schiemann LJ, Longmore LJ, Ferris J)17/7/2002 A rugby stadium that did not have a roof could not be classed as a concert hall for the purposes of Class D2 Sch Town and Country Planning (Use Classes) Order 1987 SI 1987/764 and therefore could not be used as a concert venue.

Appeal by the claimant ('RFU') from the decision of Ouseley J dated 25 October 2001 (summarised below). The RFU argued that it was necessary to identify the purpose of a land use in order to identify its status, and therefore the question "for what purpose would the appeal site be used after the proposed change of use" had to be posed. The RFU submitted that in this case the answer to that question was that the site would be used for the purpose of holding concerts. Further, the RFU argued that the eiusdem generis approach adopted by the judge was not appropriate for construing the Town and Country Planning (Use Classes) Order 1987 SI 1987/764, and that the judge had erred by incorporating some physical requirement into the concept of recreation in Class D2.

HELD: (1) The correct way to approach the Order was to establish the use class in which the current activity was to be found, in this case Class D2, and then see whether the proposed activity was to be found in the same use class. Assuming that the proposed activity was taking place, it then had to be asked whether the appeal site was being used as a concert hall. In this case the natural answer to that question was "no". (2) Some classes of the Order posed the question in a different form and it was necessary to ask the question in the form set out in the relevant use class. However, for Class D2(b), the question posed was whether the land was used as a concert hall. (3) In this context the judge was correct to incorporate some physical effort into the phrase "recreation" in Class D2(e), otherwise it was so wide as to be an improbable planning tool. If one gave recreation as wide a meaning as that for which the RFU contended, namely that it embraced bridge tournaments, stamp collecting, chess competitions and the like, then the whole of the rest of Class D2 was otiose. (4) The judge was correct in the findings he made on the RFU's submissions.

Appeal dismissed. Christopher Lockhart-Mummery QC and Thomas Hill instructed by Denton Wilde Sapte for the RFU. Tim Mould instructed by the Treasury Solicitor for the secretary of state. LTL 17/7/2002 EXTEMPORE (Unreported elsewhere) Document No: C8001965 DECISION APPEALED [2001] EWHC Admin 927 QBD Administrative Court (Ouseley J) 25/10/2001 Appeal by the claimant ('the RFU') from the local authority's failure to determine its application under s.192 Town and Country Planning Act 1990 . The RFU was the owner and operator of Twickenham Rugby Football Stadium ('Twickenham'). It submitted an application to the local authority under s.192 of the Act for a certificate of lawfulness in relation to its proposed use of Twickenham as a concert hall within Sch. Class D2 Town and Country Planning (Use Classes) Order 1987 SI 1987/764. The council failed to determine the application within the normal eight-week period and the RFU appealed against that non-determination under s.195 of the Act. The person appointed by the Secretary of State for the Environment, Transport and the Regions dismissed the appeal and the RFU now challenged his decision under s.288 of the Act. The appointed person had determined that: (i) the lack of enclosure meant that the stadium could not be seen as a concert hall for the purposes of Sch. Class D2 to the Order because the essential characteristic of a hall, on the ordinary meaning of the word, was that it was enclosed and Twickenham was not; and (ii) the inclusion of indoor and outdoor activities in Class D2 was not sufficient to extend the use defined precisely in Class D2(b). It was agreed by the local authority and the secretary of state that the stadium was within Class D2(e), namely "an area for other outdoor sports". The RFU submitted on appeal that: (a) the secretary of state had erred in law by concluding that the proposed use a concert venue fell outside the scope of use as a concert hall, or alternatively, the scope of use as an area for other outdoor sports or recreations; (b) if Twickenham was being used for concerts, it was being used for the purposes of a concert hall and therefore as a concert hall within the Order; and (c) the appointed person's conclusion that the proposed use involved a material change of use was an error of law. The secretary of state submitted that the Order was only satisfied if, when concerts were being held there, the stadium had the physical characteristics of a concert hall, which required an enclosed building. It was not sufficient for Twickenham merely to be used for concerts. HELD: (1) The appointed person had correctly asked whether, when concerts took place at Twickenham, it was used as a concert hall. He had reached the correct conclusion that it was not used as a concert hall because it lacked a roof, which was an essential physical characteristic. (2) The focus of Class D2(e) was on sport or physical recreation. Twickenham was within that class because it was an area used for outdoor sport. The words "or other outdoor recreation" had to be read in the context of Class D2(e), which was clearly dealing with physical activities. It could not cover all the ways in which a person was able to enjoy recreation in a broad sense without becoming so broad as to render the rest of Class D2 otiose. It would be inappropriate to interpret the extension of the Order in that way. (3) The appointed person was entitled to conclude that concerts differed from rugby matches in ways that materially affected the character of the use. Appeal dismissed. Leave to appeal granted. John Steel QC and Thomas Hill instructed by Denton Wilde Sapte for the RFU. Nathalie Lieven and Carine Patry (judgment only) instructed by the Treasury Solicitor for the secretary of state. TLR 8/11/2001 : (2001) 45 EG 139 (CS) : LTL 29/11/2001