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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Like It Love It Productions -v- Dun Laoighre/Rathdown County Council [2008] IEHC 26 (05 February 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/H26.html Cite as: [2008] IEHC 26 |
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Judgment Title: Like It Love It Productions -v- Dun Laoighre/Rathdown County Council Composition of Court: Murphy J. Judgment by: Murphy J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 26 THE HIGH COURT CIRCUIT COURT APPEAL RECORD NO. 2007 No. 177 CA BETWEEN/LIKE IT LOVE IT PRODUCTS LIMITED PLAINTIFF/APPELLANT AND DUN LAOGHAIRE/RATHDOWN COUNTY COUNCIL DEFENDANT/RESPONDENT Judgment of Mr. Justice Roderick Murphy dated the 5th day of February, 2008. 1. Pleadings By Landlord and Tenant Civil Bill dated 22nd May, 2007 the appellant gave notice of an application for a new tenancy of the premises known as Blackrock Town Hall (excluding the library and rates office), relying on evidence relating to the premises being a tenement held on a weekly tenancy from 26th January, 1998, varied by subsequent agreement in writing. The application was refused by the Circuit Court and comes by way of appeal to this Court of the whole of the judgment of that court, of 2nd July, 1997. The respondent claimed that the tenancy had terminated on 31st August, 2006 by means of a notice in writing dated 23rd June, 2006. The appellant claimed that that notice was not a valid notice to quit. In the event that the notice in writing was a valid notice to quit and that the tenancy determined on 31st August, the appellant claimed a new tenancy pursuant to Part II of the Landlord and Tenant (Amendment) Act, 1980. As, in the whole of the five years preceding that date, the premises was bona fide used by the appellant as tenant for the time being wholly for the purposes of carrying on a business. On 30th August, 2006 the appellant, complying with the provisions of s. 21 of the Act, duly served on the respondent a notice of intention to claim the relief sought, and claimed a new tenancy and compensation for improvements and/or compensation for disturbance. The parties failed to agree on the terms of a new tenancy. By defence and counterclaim delivered 18th June, 2007 the respondent denied the plaintiff’s entitlement. The agreement of 26th January, 1998, extended by letter of 22nd July, 1998 was for a temporary convenience letting of the premises for the purposes of s. 75(4) of the Local Government (Planning and Development) Act, 1963. Accordingly, the said agreement is excluded from the provisions of the Landlord and Tenant (Amendment) Act, 1980. Moreover, in the alternative the respondent requires vacant possession thereof for the purpose of carrying out a scheme of development which includes the said premises and in respect of which planning permission exists. Accordingly, the appellant is not entitled to a new tenancy. Furthermore, the creation of a new tenancy would not be consistent with good estate management. A notice to quit is not required in respect of the temporary agreement letting. The appellant is estopped and precluded from saying that a notice in writing dated 23rd June, 2006 is not a valid notice of termination. The appellant was at all material times fully aware of the nature of the temporary convenience letting as entitlement to occupy the premises. It was denied it made improvements or was entitled to a new tenancy or to compensation for improvements or compensation for disturbance. By way of counterclaim the respondent sought a declaration that the appellant was not entitled to a new tenancy in the premises or to compensation for improvements or compensation for disturbance under the provisions of the 1980 Act. The temporary convenience was the letting of the premises for such period until the respondent Council required possession of the premises for the purposes of its statutory powers, functions and duties and that the grounds thereof were stated in the agreement of 26th January, 1998. The Vocational Education Committee of the Council had obtained permission on 18th December, 2003 for the refurbishment, alterations and extension of the premises. 2. Issue to be determined The plaintiff/appellant, having appealed the order of the Circuit Court, submitted that the question as to whether the letting under which the premises was held as a temporary convenience letting was a matter to be determined under s. 5(1)(a)(iv) of the 1980 Act which states:
The plaintiff says that the temporary convenience was not identified. 3. Evidence on behalf of respondent Mr. Andrew Coffey, the principal of the plaintiff company (also known as Andy Ruane), gave evidence of his contact with Mr. O’Hare of the defendant Council with regard to the company’s use of the room above the library in autumn, 1997. The company wished to use the premises for the purpose of making programmes for TnaG, in early January, 1998. He gave evidence of spending IR£25,000 for repairs and looking for permanence. He agreed that the letting was a temporary convenience letting and was initially for five and a half months and that s. 75(4) of the 1963 Planning and Development Act applied. In cross-examination he agreed that the premises was 5,000 sq. ft. and the rent reserved was £100 per month. While repairs and refurbishment was done, there were not any improvements. He said he signed the agreement on 26th January, 1998 with legal advice. A letter from his solicitor of 19th December, 1997 referred to a caretaker’s agreement. He agreed that the wording of the letting agreement did not provide for permanence. 4. Evidence on behalf of the respondent 4.1 Mr. Eamonn O’Hare was then the Acting County Manager of the defendant until May, 2006. He was involved in the letting agreement of 26th September, 1998 which is a lease agreement and simply he was involved in the letting negotiations from 26th September, 1998. There had been no funding for the development of the premises from 1994/1995. In 1997/1998 there was some discussion regarding a joint venture for the library refurbishment. There was nothing more specific. Now there was planning permission in place for the Vocational Education Committee of the County Council to extend into the building. Under cross-examination Mr. O’Hare said that the plaintiff required the building for six months. He told them that they had plans for the building and, accordingly, agreed for a temporary convenience letting for six months. Normally the County Council gave eleven months convenience letting. The County Council wished to preserve the building and possibly to move the library upstairs and to upgrade it. He was advised that the then open market rent would be £60,000 per annum on the basis of evaluation of £12 per sq. ft. (This equates to a monthly rent of £5,000) 4.2 Mr. Eugene Conlon said that the current plans of the County Council were to develop the library and the premises as a senior college. Planning permission had been granted to the VEC. The Council, as freeholder, would give a lease to the VEC who would develop the entire civic building. 5. Submissions of the plaintiff/appellant Mr. Hugh O’Neill S.C., on behalf of the plaintiff/appellant submitted that the entitlement to a new tenancy under Part II of the 1980 Act was dependent on the premises being a “tenement” as defined in s. 5(1) of the Act as stated above. He said that the evidence adduced established that no temporary convenience was ever identified other than a possible assertion by Mr. O’Hare to the effect that the Council required the property to be put into repair/made watertight. That general desire was not capable of rendering any letting made for that purpose a valid temporary convenience letting. It was not the reason stated for the letting in the agreement of 26th January, 1998. The Council did not identify the temporary convenience as being “until the Council in its absolute discretion requires clear possession (of the premises) for the purpose of its statutory powers, functions and duties”. The temporary convenience was never requested by the plaintiff. He referred to O’Driscoll v. Riordan [1985] 16 L.R. Ire, 235 where Palles C.B. quoted with approval the following passage from the judgment of Fitzgibbon L.J. in McCutcheon v. Wilson 12 L.R. Ir. 151:
He referred to Murphy v. O’Connell [1949] I.R. Jur. Rep. 1, where Murnaghan J. said:
Moreover, it was submitted that no evidence was led by the respondent to suggest that the creation of a new tenancy would not be consistent with good estate management. He referred to Hamilton v. Sun Alliance, a decision of 5th July, 1971, where Murnaghan J. was not prepared to say that the grant of a new tenancy for a term of 21 years was inconsistent with good management of the estate as the respondents have not as yet become the owners of the estate. (at p. 4). 6. Submissions of the respondent Council Mr. Connolly S.C. said that the appeal involved a determination of a net point of law as whether or not the premises in question constituted a tenement within the meaning of s. 5 of the 1980 Act. Counsel submitted that Mr. Ruane/Coffey in his evidence to the court stated that he had read and signed the agreement of 26th January, 1998 on behalf of the plaintiff which clearly, on its face, provided for a temporary convenience letting. The plaintiff had independent legal advice. The plaintiff remained in possession on foot of an agreement made by letter dated 22nd July, 1998 which expressly extended “your temporary convenience letting of Blackrock Town Hall”. The nature of the temporary convenience letting in the agreement of 26th January, 1998 was stated to be for the purposes of s. 75(4) of the 1963 Act until the Council in its absolute discretion “requires clear possession thereof for the purpose of its statutory powers, functions or duties”. In Igote Limited v. Badsey Limited [2001] 4 IR 511 at 561, Murphy J., delivering the judgment of the Supreme Court, referred to Kramer v. Ireland [1997] 3 I.R. 43 at 55:
Section 75(4) of the 1963 Act gives wide powers to planning authorities to dispose of lands in order to secure the best use of that land, including the granting of a lease where the authority considers that they will not require the use of the land for the period of the lease. That provision extends the provisions of the 1980 Act. It follows that the letting agreement was therefore not a tenancy within the meaning of the 1980 Act. 7. Decision of the Court 7.1 The issue in this appeal involves a determination of a net point of law as to whether the premises in question constitutes a tenement within the meaning of s. 5 of the Landlord and Tenant (Amendment) Act, 1980. Section 5(1) of the 1980 Act provides, insofar as it is material:- “In this Act ‘tenement’ means – (a) premises complying with the
(iv) such contract of tenancy is not a letting which is made and expressed to be made for the temporary convenience of the lessor or lessee and, (if made after the passing of the Act of 1931) stating the nature of the temporary convenience; and
Moreover, the letter of 22nd July, 1998 is expressed to extend the tenant’s temporary convenience letting. The short letter states:
7.3 It seems to me that the unambiguous intention of the parties may be gleaned from the agreement (including that letter) ultimately concluded by them as is clear from the judgments of Kramer v. Ireland [1997] 3 I.R. 43 at 55, and Igote Limited v. Bardsley Limited [2001] 4 IR 511 referred to in the defendant’s counsel’s submissions above. The statement in Pickard v Sears, approved by Costello J. in Phillips v. The Medical Council [1991] 2 I.R. 115 applies. Pickard v. Sears stated:
Moreover, in his evidence, Mr. Coffey, the principal of the appellant company, said that he had read and signed the agreement, had independent legal advice in doing so and, in this appeal, relies thereon.
Section 75(4)(b) provides that neither the Landlord and Tenants Acts, 1931 to 1958 nor the Rent Restrictions Act, 1960 shall apply in relation to a lease granted as aforesaid for the purpose of the section. That paragraph extends to the provisions of the 1980 Act pursuant to s. 20(1) of the Interpretation Act, 1937 which provides:
Murphy v. O’Connell, which does not concern a local authority, is, accordingly, not relevant.
In the circumstances the court affirms
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