THE HIGH COURT
		                                     	 2000 NO. 116CA
		 	          NO. 117CA
 			          NO. 118CA

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN
BETWEEN
DUBLIN PORT COMPANIES LIMITED
			PLAINTIFF
AND
B.J. MARINE LIMITED
			DEFENDANT
JUDGMENT of Mr. Justice Kinlen delivered the 20th day of March, 2002.

	This matters arises on the foot of two Ejectment Civil Bill for over holding dated the 20th March, 1997 and a Notice of Intention to claim relief under the Landlord and Tenant Amendment Act, 1980 dated the 20th of January, 1997 and a  Notice of Application dated the 23rd of October, 1999 and Orders of the Circuit Court (Judge Devally) dated the 9th of March, 2000.
	 The Plaintiff is a successor in title to the Dublin Port and Docks Board by virtue of the Harbours Act, 1996.  At the relevant time to these proceedings the quays were owned by Dublin Port and Docks Board which is a statutory Corporation created originally by Royal Charter and regulated by various amending statutes including a private act, the Dublin Port and Docks Act, 1902.   From 1946 until recently and at the times relevant for considerations in this case the Board was regulated by the Harbours Act, 1946.
	Section 55 of the 1946 provides:-

"(1)	A harbour authority may appropriate any part of their harbour (including, in particular, any of the following or any part thereof, that is to say any dock, pier, quay, wharf, jetty, boat slip, works, plant or equipment) to the exclusive use of any person, trade or class of vessels and may make any such appropriation either gratuitously or in consideration of the payment to them of such charges as they consider reasonable.
(2)	Where any part of a harbour stands appropriated whether under this section or otherwise, by the harbour authority for the harbour to the exclusive use of any person, trade or class of vessels, any person aggrieved by the appropriation may request the Minister to direct that the appropriation shall terminate and the Minister may, if he so thinks proper after consideration by him of such request and the circumstances of the appropriation direct that the appropriation shall terminate.
(3)	Whenever the Minister directs that the appropriation by a harbour authority of a part of their harbour to the exclusive use of any person, trade or class of vessels shall terminate, the harbour authority shall forthwith terminate the appropriation.”
	
	By written agreements made on the 17th of June, 1982 and on the 16th of December, 1982, the Board made appropriations of two sheds to B.J. Marine known as sheds B. and C.  The appropriations were initially for terms of three years and two years eight months respectively and were subsequently renewed for a further period of five years by an appropriation of the 12th of December, 1985.
	From then on the appropriations were renewed annually sometimes by letter until terminated on 31st May, 1996 by a letter of the 5th of July 1995.  The initial charge of the appropriation was £800 per month rising to £1,100 per month in aggregate which sum continues to be the charge until determination.  The Board relies on a passage in the 4th Edition of Halsbury’s Laws of England Volume 9 para. 1333:-

“The powers of a corporation created by a statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of incorporation, or may be fairly regarded as incidental to, or consequential upon, those things which the legislature has authorised.  What the statute does not expressly or impliedly authorise is to be taken to be prohibited.”

	That statement of the law has been accepted and adopted in many Irish cases in particular by Costello P. in Howard v. Commissioner of Public Works [1994] 1 IR 101 and by Murphy J. in Keane v. An Bord Pleanála [1997] 1 IR 184.  The power of the Board to grant a lease of property is expressly provided for in s. 157 of the Harbours Act, 1946 which provides that the Board may make leases not exceeding two hundred years but shall not make a lease in excess of ten years without the consent of the Minister for Marine and any such lease shall include the two provisions set out in the Act. These provisions are not involved in the documentation in this case.  It is submitted that any lease of property not containing the above provisions is ultra vires of the Board.  It follows in the submission of the plaintiff that a disposal of property to B.J. Marine by way of an appropriation under s. 55 cannot be a lease. To hold that the agreement was a lease would be to hold that the Board acted ultra vires and illegally in granting a lease which did not contain the mandatory provisions of s. 157.  The effect of entering into a contract prohibited by statute or made subject for consent which was considered in Minister for Education v. Regional Technical College, Letterkenny, 1995 ILRM 438 and Foras Aiseanna Saothair v. The Minister for Social Welfare, Supreme Court, 23rd May, 1995 unreported.  Those cases distinguish between the power to make contracts and the necessity for obtaining ministerial consent, holding that the contracts were not ultra vires.  In the present case however there is a mandatory requirement to include the clause as specified in s. 157 in both of these.  Also in the present case the chairman of the Board expresses himself as making an appropriation and not a lease.  There is also a presumption of the Companies Acts that the Board is acting within its powers.  The defendant relies on this issue of lease in s. 3 of the Landlord and Tenant (Amendment) Act, 1980.  However if any appropriation by these is a in fact a lease it would be ultra vires.  It is submitted that an appropriation amounts to a license to the premises.  See Irish Shell v. John Costello Ltd [1981] ILRM 66, Governors of the National Maternity Hospital v. McGouran [1994] 1 ILRM 521 and Kenny Homes & Co. Ltd. v. Leonard, Unrep. H.C. 11th December, 1997.  However for the defendant we will look at the facts.  It will be just the same answer as the tenancy agreement.  For example the plaintiff’s beliefs “tenancy by way of appropriation” and there are references to “rent”  and that “notice to quit” was served and that proceedings by way of “ejectment” commenced so it would indicate that a tenancy was created.  
	That may be strong evidence in favour of tenancy.  However in this case it is submitted that the use of  Board property by way of appropriation is one expressly authorised by statute including the right to “exclusively appropriate”.  It is further submitted that no association with the trappings of a tenancy or the use of terminology by absence of the Board or the issue of legal proceedings should change the fundamental nature of the agreement signed by the parties.
	In this case the agreements can only be legal if it is not a lease.   Mr. Farrell on behalf of the Board adduces evidence that there were only three types of occupancy available to it being “(a) appropriations, (b) temporary convenience leases up to ten years which did not require ministerial consent and (c) long term leases which did require ministerial consent.”  The appropriation is a licence and it is not a tenement if it is not held under a contract of tenancy.
	With regard to the open yard between the two buildings it is submitted that the use of this space in conjunction with the two sheds must by necessary implication be subject to the same principles before recited.  It was submitted that an open yard is not a tenement within the meaning of s. 5 which requires that the land be covered wholly or partly by buildings.  The defendant makes the case that the quay wall was itself a building, perhaps since the 1980 Act.  While it was constructed it has been argued that it could not be regarded as a “building” and the defendant’s own engineer conceded as much.  However he tries to define a building as something that was man made for the purposes of business which it is submitted is possibly wide enough to include a quay!   As Davitt P. says in Cement Limited v. Commissioner of Valuation  [1960] IR 283 the word building has to be interpreted with reference to the word build but cannot be simply equated to a something that is built.  In the same case he reviews several English cases.  In the Landlord and Tenant cases it is submitted that, what is a building is a matter of fact and of common sense.  In Mason v. Leavy [1952] IR 40 referred to by Wiley, (Landlord and Tenant law) 2nd Ed. (Butterworths, 1998) at para.. 30.06 it was held that an open yard was a premises to which the Rent Restrictions Act 1946 applied.  However, that Act applies to a premises and not to a building as does the 1980 Act.  In that case moreover, it was stated that it is a question of fact by the decision of the trial judge and not of law. The Board chooses the submission that the defendant is not entitled to new tenancy under Part II of the 1980 Act for the reason that the said scenario of the open yard of a tenement which is the essential requirement for the application of Part II of the Act.  It is further submitted that the defendant is not entitled to a new tenancy.  If necessary the Court will amend the proceedings from an ejectment for over holding to an ejectment on the title.  
	The Court has also considered the submissions on behalf of B.J. Marine Limited who point out that s.s. 65 and 157 of the Harbours Act, 1946 did apply in the relevant time but both of  these sections have been repealed in relation to parts of Dublin in the Harbour Act, 1996.  It is conceded that there is no definition in the Act of the words “appropriate” or “appropriation” nor “lease”,“tenancy” or “licence”.  It is argue there is nothing in s. 55 to say or infer that the appropriation must be a tenancy or must be a licence.  It is submitted that the reference for “exclusive use” is more compatible with a tenancy than a licence.  The respondent makes the primary submission that he had tenancies by way of appropriation.  In the alternative it had leases under s. 157 and s. 157(2) conditions are present by virtue of a clear statutory requirement even though they were not expressly included in the documentation.  Mr. Farrell S.C. points out that the Board has acknowledged the existence of the tenancies in many ways.  Primarily the two Civil Bills are for over holding which presumes the existence of a tenancy.  In the endorsement of claim there is reference to temporary convenience letting which must be a tenancy rather than a licence.  It also refers twice to “renting” it accepts that the respondent has an interest and that interest was terminated by a notice to quit.  If there were licences the respondent would not have had an interest and a notice to quit would not have been used.  He also says the respondent has not given up possession and is over holding statements which would be inconsistent with licences.  The notices to quit were perfectly normal and are consistent only with their being tenancies.  The notice of application to the Court dated the 23rd of October, 1999 was served on behalf of the applicant.  Its seeks to “determine the right of the respondents to new tenancy in the premises”.  It sets out the various matters on which it forecasts what the respondent would rely on including clear admissions of a tenancy and references to rent and notice to quit.  No application has been made for liberty to amend this notice.  There are frequent references in the documents to “tenancy”, “rent” and “lease”.  The respondent had to pay £82 stamp duty and one would expect a licence to be unstamped or carry only stamp duty at a nominal rate.  It is submitted that the document was stamped as a tenancy, both have exclusive obligation to pay rates to do all interior repairs indemnified by the Board and insure.  The fact that the interests of the Board are to be noted on the insurance is typical of a tenancy, it would not be found on a genuine licence because the relevant insurance would be maintained by the owner.  The documents contains a prohibition against assigning without prior consent.  If it were a licence for  L. & J. Marine Limited the licensee would have no right to assign the licence anyway.  The documents do not use the language of a licence, that is licence or licensee, licence fee and do create tenancies.  See Griffin J. in the Irish Shell v. John Costello Limited   [1981] ILRM 66 at p. 71.
	In that case Griffin J. says one of the most important indicators in an agreement that a tenancy and not a licence is given is where exclusive possession is given.  There are apparently conflicting Supreme Court decisions.  The Court was considering different documents which were in themselves different and the Court is urged to follow the judgment of Griffin J. p. 71 of the cited report:-

“In all the circumstances of this case, although some of the provisions of the Agreement appear to be personal in their nature ... In my opinion, what was given to the defendants went far beyond a personal privilege given to the occupier of the site, and was in the nature of a tenancy of the site.”

It is argued that the quay wall was an artificial structure and was built by the hand of a man therefore evidence exists on which the Court is entitled to hold it is a building or a part of the building.  See Maguire C.J. in Mason v. Leavy [1952] IR 40.  It is a substantial artificial structure, a permanent character and it would not be removed without this integration of its own substance, therefore it is a building (see Black J. in Mason’s case).  The applicant in his response to the submissions points out that the notice of application be determined and the respondent apply for a new tenancy.  It cannot be held to be a pleading or to be an admission of a tenancy.  It is usually the claimant who issues such an application but if the application is not processed in three months the landlord may do so.  There is no form provided for such application.  The above is a summary of the various submissions made on behalf of the parties both orally and in writing but it does not purport to include all the points made.  But the Court has carefully considered all the submissions and all the documentations.  The Court’s decision is as follows
	The plaintiff had no statutory power to give a lease in this case and if it did so it was ultra vires its powers.  The Court amends the Civil Bill to one on the title and makes an Order for possession in favour of the Dublin Port Companies Ltd.