Irish Glass Bottle Company Ltd v Dublin Port Company

• Jurisdiction: Ireland
• Judge: Carroll J.
• Judgment Date: 15 February 2005
• Neutral Citation: [2005] IEHC 89
• Docket Number: No. 5158 P/2001
• Court: High Court
• Date: 15 February 2005

[2005] IEHC 89

THE HIGH COURT

No. 5158 P/2001

IRISH GLASS BOTTLE CO LTD v DUBLIN PORT CO

BETWEEN/

THE IRISH GLASS BOTTLE COMPANY LIMITED

PLAINTIFF

AND

DUBLIN PORT COMPANY

DEFENDANT

LANDLORD & TENANT ACTS 1931-1996

LANDLORD & TENANT (AMDT) ACT 1980 S67

LANDLORD & TENANT (AMDT) ACT 1980 S67(2)

LANDLORD & TENANT ACT 1931 S2

RICE v DUBLIN CORPORATION 1947 IR 425

O'GORMAN v DUBLIN CORPORATION 1949 IR 40

WHITE v CARLISLE TRUST 1976-7 ILRM 311

W & L CROWE LTD v DUBLIN PORT & DOCKS BOARD 1962 IR 294

MURPHY v O'NEILL 1948 IR 72

LLOYD v EARL OF PEMBROKE & ANOR 1954 89 ILTR 40

OHS LTD v GREEN PROPERTY CO LTD 1986 IR 39 1986 ILRM 451

WANZE PROPERTIES (IRL) LTD v MASTERTRON LTD 1992 ILRM 746

HARBOURS ACT 1996 S11

Carroll J.

1 The plaintiff (IGB) are lessees from the defendant (Dublin Port) a statutory company formed by the Harbour Act,1996, of three plots of land which together amount to about 25 acres under three leases in the area of Dublin Port near to Strand Road, Sandymount and East Link Bridge. It is a very valuable site. It adjoins a site fronting on to Strand Road, known as the Fabrizio site, which is undeveloped.

2 The first lease is dated 13th May, 1965, for 99 years from 1st April 1994 containing 14.463 acres at an annual rent of £4338.15 (reduced to £4300).

3 The second lease, dated 26th April, 1973 for 24 years 8 months from 1st August, 1972 containing 2.27 acres, the initial annual rent being £3,063.

4 The third lease was granted on the surrender of a lease dated 13th May, 1965. It is dated 31st March, 1994 and is for 99 years from 1st April, 1964 at a rent of €2,478.75 containing 8.462 acres.

5 The second lease is a long strip on the east side of the other two plots, running their combined length.

6 A large hangar-type building was erected about half way down the plot and was used for the storage of soda ash, a necessary ingredient of glass manufacture. At the side of the hangar four demountable concrete bays were put in place for the storage of cullet, i.e. broken glass of different colours, which is a necessary ingredient of glass manufacture. In the course of the trial it was discovered that these bays had been dismantled and removed and are no longer used for storage. The remainder of the site has been surfaced for the storage of containers with glass in them. Access to the hangar building and the two areas used for parking is along a road constructed on the other two sites and servicing the complex. There is no access to the hangar from either side bordering on the parking area.

7 The covenants as to user in the leases are as follows.

"will use the demised premises and all buildings and structures thereon for the manufacture of glass and the products thereof as the main purpose and may also use the same for purposes which are ancillary to the main purpose, including the manufacture of containers and packages of all descriptions, but will not use the said premises, buildings or structures or any part thereof, for any other main purpose without first having obtained the consent in writing of the landlord."

"will use the demised premises and all buildings and structures thereon for the manufacture of glass and products thereof as the main purpose and may also use the same for purposes which are ancillary to the main purpose, including the manufacture of containers and packages of all descriptions, but will not use the said premises, buildings or structures or any part thereof for any other main purpose without first having obtained the consent in writing of the landlord."

Clause 14 of the first lease provides that the lessee:-

Clause 14 of the second lease provides that the lessee:-

8 Clause 3(xii) of the third lease provides that the lessees covenant that they:-

"will use the demised premises and all buildings and structures thereon for the manufacture and storage of glass and products thereof as the main purpose and may also use the same for purposes which are ancillary to the main purpose including the manufacture and storage of containers and packages of all descriptions but will not use the said premises, buildings or structures, or any part thereof, for any other main purpose without first having obtained the consent in writing of the landlords which consent shall not be unreasonably withheld."

9 Dublin Port contends that the premises demised by the second lease are not a tenement within the meaning of the Landlord and Tenant Acts,1931 to 1996. If the premises are not a tenement, then s. 67 of the Landlord and Tenant (Amendment) Act, 1980 which entitles a lessee to apply for a change of user, such consent not to be unreasonably withheld, does not apply.

10 On 4th August, 2000 IGB wrote to Dublin Port saying they were constantly reviewing the development of their business. As part of their current review they were looking at increasing or changing the utilisation of their site by providing warehousing for third parties in addition to their existing activities or even relocating the manufacturing part of the business to a facility on the outskirts of Dublin. They requested an endorsement in respect of each of the leases amending the permitted use to "the manufacture of glass and the products thereof and the manufacture of containers and packages of all descriptions and/or as warehousing both in connection with the Tenant's business and/or in connection with the provision of warehousing and logistical services to third parties."

11 On 22nd August, 2000 Dublin Port replied to say that it was not in a position to consent to the proposed change of use.

12 IGB wrote again on 20th October, 2000 to say their information was that there was a growing shortage of warehousing capacity for third-party customers in the general port area. They could not see how the use of their warehousing space and employee skills to provide warehousing and logistics to third parties could in any way be detrimental to the objectives of the Dublin Port Company and the Docklands area in general. IGB asked that if the Dublin Port continued to withhold consent to a change of use they would be grateful if it would set out the basis of its decision and the factors which had been taken into account as grounds for refusal.

13 Dublin Port replied as follows on 16th November, 2000:

"IGB were given possession of the site it currently occupies in Dublin Port for the sole purpose of using same for the use as specified in the leases i.e. the manufacture of glass products with warehousing and offices ancillary to such use. The raw material essential to the manufacturing of IGB's products requires to be imported through Dublin Port and, indeed, to assist in this process a pipeline has been laid from the IGB site to the quayside. Possession of the site would not have been given to IGB if it had intended using the same for the new uses proposed. It is vital for the proper development and use of port land that businesses situated therein are those that have an essential requirement of easy access to ships entering Dublin Port."

14 The letter continued that the plans, i.e. the city plan and the docklands plan referred to by IGB were not relevant. The Dublin Port was not the author of either of these plans and had no control over the contents. The letter concluded by saying they had carefully considered the request...