Dursley v Watters

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Court: High Court

High Court

Dursley v. Watters

In the matter of the Landlord and Tenant (Amendment) Act

1980.

Kenneth Dursley

Applicant

and

Pádraig Watters and Castleblaney Plant Hire Limited

Respondents

Cases mentioned in this report:—

Mason v. Leavy [1952] I.R. 40.

O'Reilly v. Kevans and Others (1935) 69 I.L.T.R. 1.

Terry v. Stokes [1993] 1 I.R. 204.

Landlord and tenant - Tenancy - Expiration - Application for a new tenancy - "Tenement"- Whether applicant was entitled to a new tenancy - Landlord and Tenant (Amendment) Act, 1980 (No. 10), s. 5.

Words and phrases - "Tenement" - "Buildings" - "Subsidiary and ancillary" - Whether self assembled shed, holding tank, cage and small lock up shed constituted buildings - Whether the surrounding land was subsidiary and ancillary to the buildings - Usage of the buildings by the tenant for his business - Landlord and Tenant (Amendment) Act, 1980 (No. 10), s. 5.

Appeal from the Circuit Court.

The facts and the relevant statutory provisions have been summarised in the headnote and are fully set out in the judgment of Morris J., post.

The appeal was heard by the High Court on circuit (Morris J.) sitting at Monaghan on the 27th October, 1992.

Section 16 of the Landlord and Tenant (Amendment) Act, 1980, provides as follows:—

"… where this Part applies to a tenement, the tenant shall be entitled to a new tenancy in the tenement beginning on the termination of his previous tenancy …"

Section 5 of the Landlord and Tenant (Amendment) Act, 1980, provides inter aliaas follows:—

"(1) In this Act 'tenement' means—

• (a) premises complying with the following conditions:

  • (i) they consist either of land covered wholly or partly by buildings or of a defined portion of a building;

  • (ii) if they consist of land covered in part only by buildings, the portion of the land not so covered is subsidiary and ancillary to the buildings;…"

The applicant was the tenant of a car wash premises carried on in the forecourt and surrounding area of the respondent's garage premises. The applicant and his predecessors in title had carried on a car wash business on the premises without interruption since the 23rd April, 1988, paying a weekly rent of £60.

The premises consisted of a site containing a cage which was used for the protection of the applicant's equipment when the equipment was not in use, a small lock-up shed or hut, a pit or holding tank to catch water as it drained away from the cars as they were washed and a self assembled office shed. The applicant also had several mobile cleaning units. The office shed was required by the applicant to house his books and ledgers and to protect his machinery at night. There was no telephone in the shed and no work was done from the shed.

A notice to quit was served on the 3rd August, 1991, to expire on the 17th August, 1991. The applicant served a notice of intention to claim relief pursuant to s. 20 of the Act of 1980 on the 10th September, 1991. The matter came before the Circuit Court by way of notice of application dated the 10th January, 1992. The Circuit Court refused the applicant's claim for a new tenancy and granted the respondents possession of the premises. On the applicant's appeal to the High Court against the order of the Circuit Court is was

Held by Morris J., in dismissing the applicant's appeal and refusing his claim to a new tenancy, 1, that the premises were not a tenement pursuant to s. 5 of the Act of 1980.

2. That the lands were partly covered by buildings but that the remaining lands were not subsidiary and ancillary to the buildings.

O'Reilly v. Kevans and Others (1935) 69 I.L.T.R. 1 and Mason v. Leavy[1952] I.R. 40 followed. Terry v. Stokes[1993] 1 I.R. 204 considered.

Cur. adv. vult.

Morris J.

This...