Camiveo Ltd v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 09 May 2019
• Neutral Citation: [2019] IECA 138
• Date: 09 May 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 138

BETWEEN/

CAMIVEO LIMITED

PLAINTIFF/RESPONDENT

- AND -

DUNNES STORES

DEFENDANT/APPELLANT

[2019] IECA 138

Costello J.

Irvine J.

Baker J.

Costello J.

Neutral Citation Number: [2019] IECA 138

Record No. 2017/285

THE COURT OF APPEAL

Planning permission – Damages – Breach of covenants – Appellant seeking to appeal judgment and order of High Court – Whether the appellant breached planning permission

Facts: The High Court (Barrett J) held that the appellant, Dunnes Stores, was not entitled to close and keep closed the main doors of its retail unit situated in Edward Square in the city of Galway, and granted an order restraining Dunnes from disabling the automatic opening mechanism of the doors from its unit in Edward Square shopping centre onto Williams Street during the opening hours of its department store at the Centre, which was owned by the respondent, Camiveo Ltd, and ordering that it keep the doors open during the opening hours of its department store. In addition, the High Court awarded the respondent damages, including aggravated damages, in respect of the wrongful closure of the doors in breach of various covenants in the lease of the unit. Dunnes appealed the entire judgment and order. The issues in the case turned on the interpretation of the planning permission for the Edward Square Shopping Centre and the rights and obligations of Dunnes as a tenant of the anchor unit in the Edward Square Shopping Centre.

Held by the Court of Appeal (Costello J) that the planning permission for the Edward Square Shopping Centre, properly construed, required that the doors be open during the hours that the anchor unit was open for trade to facilitate linkages between the Edward Square Shopping Centre and the Eyre Square Shopping Centre; the closure of the doors on a permanent basis breached the planning permission. Costello J held that the closure of the doors breached the covenants on the part of Dunnes in clauses 4.16; 4.23.3; 4.29.2; 4.29.3; 4.29.5; 4.30.4; 4.31; 4.32.1 and 4.32.3 of the lease. Costello J held that Dunnes had no intention of reopening the doors in the absence of a court order and that the respondent was entitled to an injunction to restrain Dunnes from closing the doors while the demised premises were open for trade. Costello J held that the provisions of clause 4.19.1 of the lease did not entitle Dunnes to close the doors indefinitely and did not entitle it to breach the other clauses in the lease. Costello J held that the trial judge erred in holding that the facts established that the closure of the doors by Dunnes caused HMV to cease paying rent due under its lease and that Dunnes was liable to compensate the respondent for this failure by HMV to pay the rent due by it to the respondent. Costello J held that there was no evidence to support the finding that the actions of Dunnes had caused any other financial loss to the respondent arising from the withholding by other tenants of rent due to the respondent and a consequent loss of rent-roll or any other loss sounding in damages. Therefore, Costello J held that the awards of quantified and unquantified compensatory damages must be set aside. Costello J held that the trial judge erred in holding that the facts established that Dunnes had committed the tort of causing loss by unlawful means as there was no evidence to support the conclusion that the harm asserted had been caused by Dunnes. Costello J held that there was ample evidence upon which the trial judge was entitled to conclude that it was appropriate to award aggravated damages against Dunnes; the award of €45,000 was not excessive in the circumstances. Costello J held that the respondent had not derogated from its grant but rather was seeking to enforce the grant of the three leases. Costello J held that there was no misrepresentation by Radical Properties Ltd in agreeing to clause 4.19.1 of the lease and the respondent was not estopped from enforcing the clauses in the lease by reason of the provisions of clause 4.9.1. Costello J held that the trial judge was correct to dismiss Dunnes’ counterclaim.

Costello J held that the appeal would be dismissed save that the award of damages would be reduced to €45,000.

Appeal dismissed.

JUDGMENT of Ms. Justice Costello delivered on the 9th day of May 2019

1 The deceptively simple issue for determination on this appeal is whether the appellant (‘Dunnes’) is entitled to close and keep closed the main doors of its retail unit situate in Edward Square in the city of Galway. In the High Court, Barrett J. held that it was not, and granted an order restraining Dunnes from disabling the automatic opening mechanism of the doors from its unit in Edward Square shopping centre onto Williams Street (‘the Doors’) during the opening hours of its department store at the Centre, which is owned by the respondent, and ordering that it keep the Doors open during the opening hours of its department store. In addition, the High Court awarded the respondent damages, including aggravated damages, in respect of the wrongful closure of the Doors in breach of various covenants in the lease of the unit. Dunnes appealed the entire judgment and order.

Background

2 The issues in the case turn on the interpretation of the planning permission for the Edward Square Shopping Centre and the rights and obligations of Dunnes as a tenant of the anchor unit in the Edward Square Shopping Centre. I propose first to deal with the planning permission for the development and then to consider the provisions of the lease under which Dunnes occupies the anchor unit in the Centre.

Application for planning permission

3 In July 1997 Radical Properties Limited (‘Radical’) applied for planning permission to develop a site in Galway city centre. The site was bounded by William Street to the north-west, Eyre Square to the north-east, Merchants Road to the south-east and Abbeygate Street to the south-west. The site was an in-fill u-shaped site accessible only from William Street via Castle Street (also called Barrack Lane). It adjoined and backed onto the existing developments of Eyre Square Shopping Centre and Corbett Court Shopping Mall.

4 The application was for planning permission for:-

‘A mixed development on lands between Barrack Lane/Castle Street and Whitehall (formally Corbetts' Yard) and at No 11 Abbeygate Street. The development comprises residential, office use and retail linking into the existing Eyre Square Shopping Centre in Galway City Centre. Permission (1) to construct a building of four storeys above ground floor and lower ground floor to provide 7,499 sq. m. retail floor space (department store and up to 8 no. retail units and extension to existing retail unit), 72 m2 retail kiosks, 343, sq.m. office floor space and 3,749 residential floor space (49 no. residential units), including alterations to existing Eyre Square Shopping Centre to facilitate proposed linkages…’ (emphasis added)

5 As the application for planning permission included linking into the existing Eyre Square Shopping Centre and alterations to that Centre to facilitate the proposed linkages, the application for planning permission included letters from the owners of properties who were affected by the proposed pedestrian or other linkages acceding to the proposed alterations.

6 Radical submitted revised plans and additional information on the 17th October, 1997 and on the 7th January,1998 Galway Corporation decided to grant Radical planning permission. That decision was appealed to An Bord Pleanála. Further documents were submitted by Radical in response to objections raised by third parties.

7 On the 1st September, 1998 An Bord Pleanála granted Radical planning permission for the development described in the public notice as:-

‘Residential, office use and retail linking into Eyre Square Shopping Centre in Galway city centre. The above planning application seeks permission (1) to construct a building of four storeys above ground floor and lower ground floor to provide 7,499 square metres retail floor space (department store and up to eight retail units and extension to existing retail unit), 72 square metres retail kiosks, 343 square metres office space and 3,749 residential floor space (49 residential units), including alterations to existing Eyre Square Shopping Centre to facilitate proposed linkages…in accordance with plans and particulars lodged with [Galway] Corporation.’ (emphasis added)

8 The decision was:-

‘to grant permission for the said development in accordance with the said plans and particulars, subject to the conditions specified in the Second Schedule hereto, the reasons for the imposition of the said conditions being set out in the said Second Schedule and the said permission is hereby granted subject to the said conditions.’

9 Condition 1 in the second schedule provided:-

‘The proposed development shall be carried out in accordance with the plans and particulars lodged with the application as supplemented and amended by the plans and particulars received by the planning authority on the 14th day of October, 1997, the 3rd day of November, 1997 and the 18th day of November, 1997 and by An Bord Pleanála on the 6th day of March, 1998 and the 20th day of July, 1998, except as may otherwise be required in order to comply with the following conditions.

Reason: to clarify the development permitted.’

10 One of the drawings submitted in March 1998 to An Bord Pleanála showed, inter alia, revised entrance doors from the anchor unit into the open U-shaped courtyard around which the other retail units in the development were situate. The entrance comprised a lobby with double automatic doors two abreast the Doors

11 A block plan referred to as L:37 was submitted to An Bord Pleanála on the 6th March, 1998, and is one of the documents referred to in Condition 1 of the grant of planning permission. The block plan shows...