Ampleforth Ltd t/a The Fitzwilliam Hotel v Cherating Ltd

• Jurisdiction: Ireland
• Judge: Mr., Justice Geoghegan
• Judgment Date: 11 April 2003
• Neutral Citation: [2003] IESC 27
• Court: Supreme Court
• Docket Number: 307 & 325/02
• Date: 11 April 2003

[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

the High Court, on application to it by the respondent’s neighbour, ordered that pursuant to section 160 of the Planning and Development Act, 2002, the respondent be restrained from operating a public bar without a further grant of planning permission having been first obtained on the grounds that, although a previous planning permission had authorised user of the premises in question as a restaurant and/or bar, during the relevant prior five year period, the only trading on the premises had been as a restaurant with a restaurant licence attached. It was held by the High Court that public bar use could not be regarded as merely a continuation of the licensed restaurant use and accordingly, that the addition of a publican’s trade would amount to an intensification and, therefore, material change of use. In appealing that decision, the respondent argued, inter alia, that it was entitled to a publican’s licence as it would merely be licensing a continuation of activities which it had carried on in the premises previously.

Held by Geoghegan J, delivering the judgment of the court in dismissing the appeal that the only use to which the premises had been put was a licensed restaurant use and that an alteration from restaurant trading accompanied with the limited serving of alcohol was a wholly different use than an ordinary seven day publican’s trade use which the applicant sought to restrain.

Obiter dictum: that planning documents are to be construed in their ordinary meaning and legal definitions of words are of limited value in interpreting planning permissions or conditions attached thereto.

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 18^th 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 conclusion the learned President relied in part on the authority ofCarrighall Holdings Limited v. Dublin Corporation [1983] I.L.R.M. 268 in which McWilliam J. had observed that a public bar would attract a greater number of patrons than would a licensed restaurant. The learned President went on to observe that this would be particularly material where the public bar would have live music and dancing and avail of extended trading hours so that it bore great similarity to what colloquially would be called a nightclub rather...