Dublin Corporation, O'Gorman

• Jurisdiction: Ireland
• Judgment Date: 12 November 1949
• Date: 12 November 1949
• Court: High Court

O'Gorman v. Dublin Corporation

PATRICK O'GORMAN

Plaintiff

and

THE RIGHT HON. THE LORD MAYOR, ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN

Defendants.

Landlord and Tenant - Covenant against using premises for sale of intoxicating liquor - Refusal of landlords to consent to such user - General policy of landlords not to permit premises on their housing estates to be so used - Fear that permission would cause other lessees to seek waiver of similar covenants in their leases - Not resonable grounds for refusing consent to proposed alteration of user - Landlords also planning authority under Town and Regional Planning Act, 1934 - Likelihood of planning authority refusing to consent to proposed alteration of premises irrelevant to reasonableness of refusal of landlord's consent to proposed alteration of user - Landlord and Tenant Act, 1931 (No. 55 of 1931), s. 57 - Town and Regional Planning Act, 1934 (No. 22 of 1934) - Town and Regional Planning (Amendment) Act, 1939 (No. 11 of 1939).

Sect. 57 of the Landlord and Tenant Act, 1931, provides:—

"1. Every lease . . . of a tenement which contains a covenant . . . absolutely prohibiting the alteration of the user of such tenement shall have effect as if such covenant . . . were a covenant . . . prohibiting the alteration of the user of such tenement without the . . . consent of the lessor.

2. In every lease . . . of a tenement in which there is contained a covenant . . . prohibiting either expressly or by virtue of the foregoing sub-section of this section, the alteration of the user of such tenement without the . . . consent of the lessor, such covenant . . . shall . . . be deemed to be subject:—

• (a) to a proviso to the effect that such . . . consent shall not be unreasonably withheld . . ."

A lease under which the plaintiff held certain premises from the defendants contained a covenant not to permit the premises to be used for the sale of intoxicating liquor. On the application by the plaintiff for leave to use the premises for the sale of intoxicating liquor, the defendants refused their consent. The reasons the defendants assigned for their refusal to consent were as follows: 1. It was the general policy of the defendants not to permit licensed premises on their housing estate: 2. If permission were granted by the defendants to the plaintiff, other lessees of the defendants would seek similar facilities: 3. That the proposed alteration of user would involve structural alteration of the premises which would thus encroach on the yard space at the rere of the premises.

The defendants in their capacity as planning authority for the area under the Town and Regional Planning Acts, 1934 and 1939 refused to permit the plaintiff to make the structural alterations proposed.

The plaintiff instituted proceedings for a declaration that the defendants had unreasonably withheld their consent to the proposed alteration of user of the premises.

Held:—

1. Following the decision of Davitt J. in Rice v. The Dublin Corporation,[1947] I. R. 425, that total prohibition of licensed premises on the defendants housing estates was unreasonable.

2. That the fear of creating a precedent rendering refusal of subsequent similar applications difficult was not a reasonable ground for ignoring the special circumstances of a particular case.

3. That refusal on the ground that structural alteration would alter the original building scheme was unreasonable, as it assigned no importance to the individual case.

4. That the likelihood of permission being granted or refused by the planning authority under the Town and Regional Planning Acts, 1934 and 1939, for proposed structural alteration, is irrelevant to the reasonableness or unreasonableness of a lessor refusing consent to a proposed alteration of user.

Appeal from the Circuit Court.

By an indenture of lease dated the 28th December, 1943 and made between the defendants of the one part, the Minister for Local Government and Public Health of the second part and Patrick Freeney of the third part, the defendants, with the consent of the Minister, demised unto Patrick Freeney a plot of ground forming part of the estate of the defendants, situate on the north side of Faussagh Avenue, Cabra, in the City of Dublin. The lessee erected on the said plot a shop and residence which became known as No. 30 Faussagh Avenue, in compliance with a covenant to that effect contained in the lease. Subsequently, the lessee assigned all his interest under the lease together with the shop and residence to the plaintiff for the residue of the term.

By the said lease the lessee covenanted, inter alia, that he would not during the continuance of the demise "permit or suffer the said premises hereby demised, or any part thereof, to be used for the sale of intoxicating liquor."

The plaintiff carried on a general grocery business in the premises. By letter, dated the 24th January, 1944, his solicitors requested the defendants to waive the covenant prohibiting the sale of intoxicating liquor on the premises. It was then indicated to the defendants that the plaintiff wished to apply for an off-licence in respect of the premises. In reply to that letter the City Manager, by letter dated the 8th February, 1944, wrote to say that the defendants could not comply with the plaintiff's application for a waiver of the covenant. In reply to a further letter written on the 8th June, 1944, on behalf of the plaintiff, the City Manager, by letter dated the 12th June, 1944, wrote setting out the position of the defendants as follows:—"Mr. O'Gorman leased the site from the Corporation after it had been advertised in the public press, and these restrictive covenants formed part of the conditions of letting. There are eight other shop-dwellings in this block, and if I were to consider complying with Mr. O'Gorman's request as regards the removal of restrictive covenants, I have no doubt that many of the other shopkeepers in the same block would seek similar facilities. Having regard to the policy as regards this restriction on licensed premises in Corporation housing estates, which is long established, I regret that I cannot see my way to consider Mr. O'Gorman's application for waiving the restrictive covenant." By a further letter dated the 19th June, 1945, the City Manager informed the plaintiff that he saw no reason to depart from the decision already arrived at.

On the 2nd November, 1945, the plaintiff instituted proceedings against tho defendants by issuing a Civil Bill claiming a declaration that the consent of the defendants to the waiver of the covenant in the lease to enable him to sell intoxicating liquor in the premises had been and was being unreasonably withheld. He further claimed an order that the defendants do and execute all such acts, instruments and things as might be necessary for the purpose of giving effect to the waiver of the covenant. In their defence the defendants said that the plaintiff was not entitled to require them to consent to the premises being used for the sale of intoxicating liquor and said that the defendants had not withheld their consent to such user of the...