Ampleforth Ltd t/a The Fitzwilliam Hotel v Cherating Ltd

 
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[2003] IESC 27

THE SUPREME COURT

Hardiman J.

Geoghegan J.

McCracken J.

307 & 325/02
AMPLEFORTH LTD T/A FITZWILLIAM HOTEL v. CHERATING LTD
IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000

and

IN THE MATTER OF AN APPLICATION BY AMPLEFORTH LIMITED TRADING AS THE FITWILLIAM HOTEL
BETWEEN/
AMPLEFORTH LIMITED TRADING AS THE FITZWILLIAM HOTEL
Applicant/Respondent

and

CHERATING LIMITED
Respondent/Appellant

Citations:

PLANNING & DEVELOPMENT ACT 2000 S160

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S2

CARRIGHALL HOLDINGS LTD V DUBLIN CORPORATION 1983 ILRM 268

QUINN V BOURKE 1906 2 IR 94

INTOXICATING LIQUOR ACT 1988 S16

INTOXICATING LIQUOR ACT 1988 S2

XJS INVESTMENTS LTD V DUN LAOGHAIRE CORPORATION 1987 ILRM 659

Synopsis:

INJUNCTION

Restraining order

Order restraining use of premises as public bar pending further grant of planning permission - Whether intensification of use amounting to material change of use - Whether use of premises as public bar materially different to use as restaurant with licence attached - Licensing - Planning permission attaching to premises authorising restaurant/bar use - Licence attaching to premises for use as licensed restaurant (307 & 325 - Supreme Court - 11/04/2003)

Ampleforth Ltd t/a the Fitzwilliam Hotel v Cherating Ltd

JUDGMENT of
Mr., Justice Geoghegan
delivered the 11th day of April 2003 [Nem Diss]
1

The appellant (hereinafter referred to as"the hotel") is the owner of the Fitzwilliam Hotel in the St. Stephen's Green Centre in Dublin. The respondent on the appeal (hereinafter referred to as "Cherating" is the occupier of a unit in the same building complex known as Unit 5B. The proceedings arise out of a dispute between the parties in relation to proposed user of Unit 5B as a public bar. On the 18th of September, 2002, the hotel obtained an order of the High Court (Finnegan P.) against Cherating in the following terms. It was ordered that pursuant to section 160 of the Planning and Development Act,2000, Cherating, its servants or agents or any persons acting in concert with it and all persons having knowledge of the making of the order should be restrained from operating a public bar in the basement of Unit 5B without a further grant of planning permission having first been obtained. The order was sought on a number of grounds but essentially, the ground on which it was granted was that although a planning permission 252/95 authorised user of the basement as a restaurant and/or bar, the latter use, in the view of the President of the High Court, to include trading under an ordinary seven day publican's licence, the only trading which had in fact been carried on during the relevant five year period under section 2 of the Local Government (Planning and Development) Act, 1982was as a restaurant with a restaurant licence attached. It is accepted that during that period there was not an ordinary seven day publican's licence in respect of the basement. It was held in the High Court that the trade carried on in the relevant period was consistent with a licensed restaurant business rather than a publican's business and that as the relevant five year period had expired, there was no planning permission for public bar use under a seven day licence. It was also held that public bar use could not be regarded as merely a continuation of the licensed restaurant use because both as a matter of common sense and of law they were quite different businesses with the effect that the addition of a publican's trade would amount to a clear intensification and, therefore, material change of use. In arriving at this...

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