Dunnes Stores v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 02 March 2017
• Neutral Citation: [2017] IEHC 148
• Court: High Court
• Docket Number: 2016 No. 173 JR
• Date: 02 March 2017

[2017] IEHC 148

THE HIGH COURT

Barrett J.

2016 No. 173 JR

IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

Between:

DUNNES STORES

Applicant

– and –

DUBLIN CITY COUNCIL

Respondent

– and –

TACULLA LIMITED

Notice Party

Local government – Grant of license to use public road – S. 254 of the Planning and Development Act 2000 – Use of front awnings without planning permission – Expiration of license

Facts: The applicant sought an order for quashing the proposed decision of the respondent contained in a letter whereby the respondent had granted permission to the notice party to use the front awnings at its restaurant. The applicant contended that the grant of permission was in contravention of the relevant clause of the license agreement wherein it was expressly held that the use of the front and side awnings was allowed to cover the licensed area, but with prior permission. The applicant argued that it was not able to display its products to the intended customers by the use of front awnings by the notice party.

Mr. Justice Max Barrett granted the desired relief to the applicant. The Court held that the respondent had legitimised the use of front awnings in contravention of the relevant licensing condition. The Court found that the appropriate way for the notice party was to make an application for retention permission and then the respondent could have invited submission in that regard. The Court found that the overhead front awnings as situated had blocked the line of certain window displays on the applicant's premises.

JUDGMENT of Mr Justice Max Barrett delivered on 2nd March, 2017.

I. Background

1 Dunnes Stores is an unlimited company that operates a number of clothes, homeware and grocery stores. Perhaps its most prominent Dublin City premises is its anchor store in the St Stephen's Green Shopping Centre on the north-west corner of St Stephen's Green. The store can be entered via an entrance to the shopping centre on South King Street; some of the display-windows of its store also front onto that street.

2 Taculla Limited is a limited liability company that operates a public house and eatery known as Harry's on the Green that is situate at Unit B3A of St Stephen's Green Shopping Centre; the unit is entered via an entrance on South King Street.

3 South King Street is a public road within the meaning of s.2(1) of the Roads Act 1993, as amended. Section 254 of the Planning and Development Act 2000 contains a mechanism whereby a person may apply to a planning authority for a licence to permit the erection, construction, placing or maintaining of an apparatus or structure on the public road. Regulation 201(b) of the Planning and Development Regulations 2001, as amended, provides that ‘tables and chairs outside a hotel, restaurant, public house or other establishment where food is sold for consumption on the premises’ are among the structures requiring a licence under s.254. Section 254(9) makes clear that any person who erects, constructs, places or maintains an apparatus or structure on a public road without a licence or otherwise than in accordance with the terms of a licence granted under s.254 ‘ shall be guilty of an offence’.

4 In the past a Mr Boland, an officer of Taculla Limited, was granted a licence under s.254 that was effective from 27th June, 2014, to 26th June, 2015, titled a ‘ Licence for Tables and Chairs outside a Hotel, Restaurant, Public House or other Establishment where Food is Sold for Consumption on the Premises’, and which licensed the placing outside Harry's of some 12 tables and 24 chairs in two screened areas measuring 28 square metres. There were 29 general conditions attaching to the licence, including a condition that ‘ Side awnings or front awnings may only be used to cover the licensed area where planning permission has been granted.’ Central to the within proceedings is the fact that for a long period, most likely a period in excess of seven years, Taculla has had a couple of overhead front awnings that can be winched forwards and backwards, at the election of Taculla, to provide a protective canopy for on-street patrons of Harry's as the weather demands.

5 The manner in which Harry's has operated the on-street part of its business has for some time been a matter of irritation to Dunnes. A particular irritation arising is that the just-described awnings, when open, block certain window-displays that Dunnes uses to attract the custom of pedestrians who pass along South King Street. There is also a more general concern about an alleged more pervasive want of compliance with such street furniture licences as the Council has issued thus far to Taculla. Dunnes has been sufficiently vexed by alleged past breaches of the street furniture licence provisions that, on 10th October, 2014, it sent an e-mail to Dublin City Council which stated, inter alia, as follows:

‘…We have an issue with our Stephen's Green store in that a neighbouring tenant…Harry's Bar has a street licence allowing them to put tables and chairs on the pavements outside their premises. We have no issue with this if he actually complied with the restrictions in the licence that the council have given him, but they seem to do whatever they want on the street without any consideration for the impact on our business…. We are about to launch our Christmas marketing campaign and intend to invest considerably in our window displays. The impact of this will be lost on South King Street if the activities of Harry's Bar are not curtailed. I understand that the licence is an annual licence and would be obliged if you could let me know when it is up for renewal as we would want to object to renewal as this problem has been going on for some years. I believe that your colleagues in Planning did initiate proceedings against Harry's Bar under the enforcement regulations but then dropped them because of concerns that they could not prove that the breach had been going on for over 4 years and a deemed planning consent may exist….’.

6 This e-mail met with the following response that issued from Dublin City Council on 17th October, 2014:

‘…Harry's Bar was inspected on October 16th and found to be outside their licensed area by approximately 2m in length and 1m in width. They were found to have 14 tables instead of the licensed 12, however premises will sometimes change their table arrangement and use smaller tables in order to accommodate an extra table or two, this is not an issue for this department. Harry's Bar will be notified that they are in breach of their licence and advised that the licence will not be renewed should they continue to breach their licence conditions. Their licence is due for renewal on June 26th 2015….’.

7 By 11th June, 2015, Dunnes was back onto the Council again. In a letter of that date, Dunnes wrote to Mr Aidan Walsh in the Street Furniture Unit of Dublin City Council, complaining again about alleged breaches. This letter drew attention to Dunnes' retail business, noted that the window displays in Dunnes' premises play an integral part in attracting customers into its St Stephen's Green store, and asserted that it was unacceptable that Harry's should be allowed to erect unauthorised structures to block customer's sight lines to the store windows along South King Street. The letter is notably forceful, at points almost directional in tone, stating, inter alia, as follows:

‘In your email correspondence [of 17th June, 2014]…you acknowledged that the licensee was in breach of their Street Furniture Licence and advised that the licence will not be renewed should they continue to breach their licence conditions. As the Licensee clearly continues to operate its Street Licence in clear and blatant breach of the terms of its Licence, it is obvious that the breaches are so fundamental, numerous and continuous that the Street Renewal Licence must not be renewed by Dublin City Council on 26th June 2015….

Action Required

This is an extremely important issue for our business as the continued breach of licence coupled with unauthorised development (i.e. signage and canopy) along South King Street, in respect of which we call on Dublin City Council to issue appropriate enforcement action. This has escalated to a level that it is adversely impacting on our business operations and cannot be allowed to continue.

As a key retail stakeholder in Dublin City paying very substantial commercial rates we expect our complaint to be acknowledged and for the Council to put in place measures to rectify this situation within a reasonable timeframe.

We insist that the Street Licence is not renewed as the licensee has failed over the last 12 months to demonstrate a willingness to comply with the licence conditions…. In fact, it is difficult to identify any condition in the Licence that has been properly complied with, which makes a mockery of the statutory framework under which this scheme operates. There are so many breaches of the conditions in this case that this Street Licence is not suitable for renewal and in light of these documented breaches any renewal would be grossly negligent on the part of Dublin City Council and not consistent with your stated approach to this problem. We would also draw your attention to your email…dated 17th October 2014 in which you stated “Harry's Bar will be notified that they are in breach of their Licence and advised that the Licence will not be renewed should they continue to breach their Licence conditions. Their Licence is due for renewal on June 26th.' Clearly there have been continuous and material breaches of the Street Licence since October 2014 and so in the circumstances the only rational decision is to follow your own stated approach and refuse to renew the Street Licence for Harry's on the Green on 26th June….’.

8 A flurry of correspondence...