Keating & Company Ltd v Jervis Shopping Centre Ltd
| Jurisdiction | Ireland |
| Judge | Keane J. |
| Judgment Date | 01 January 1997 |
| Neutral Citation | 1996 WJSC-HC 1546 |
| Docket Number | [1995 No. 9606P],No. 9606P/1995 |
| Court | High Court |
| Date | 01 January 1997 |
BETWEEN
AND
1996 WJSC-HC 1546
THE HIGH COURT
Synopsis:
INJUNCTION
Interlocutory
Fair question - Convenience - Balance - City centre - Trespass - Building works - Use of tower crane by defendant builders - Excessive use of parking spaces by builders" trucks - Interference with trade at plaintiff's public-house - Crane used to erect party wall pursuant to agreement between parties - Injunction refused - (1995/9606 P - Keane J. - 1/3/96) [1997] 1 IR 512
|Keating & Co. Ltd. v. Jervis Shopping Centre Ltd.|
TRESPASS
Land
Airspace - Building - Construction - Equipment - Use of tower crane over plaintiff's property - Defendant's claim to use by right - Crane used to erect party wall pursuant to agreement between parties - (1995/9606 P - Keane J. - 1/3/96) [1997] 1 IR 512
|Keating & Co. Ltd. v. Jervis Shopping Centre Ltd.|
Citations:
PATEL & ORS V W H SMITH (EZIOT) LTD 1987 2 AER 569
AMERICAN CYNAMID CO V ETHICON LTD 1975 1 AER 504
WOOLERTON & WILSON LTD V RICHARD COSTAIN LTD 1970 1 AER 483
KELSEN V IMPERIAL TOBACCO CO LTD 1957 2 QB 334
AG & ANOR V BRIGHTON & COVE CO-OPERATIVE SUPPLY ASSOCIATION (1900–3) AER 216
VANDERPANT V MAYFAIR HOTEL CO LTD 1930 1 CH 138
JUDGMENT delivered the Keane J. by 1st March, 1996
The first named defendants, (hereafter "the developers"), are engaged in a very extensive development project in the City of Dublin on a site bounded by Jervis Street, Liffey Street, Mary Street and Abbey Street on part of which the Jervis Street Hospital formerly stood. The second named defendants, (hereafter "the builders") are the building company carrying out the actual work. The plaintiffs, (hereafter "Keating") are the owners of a licensed premises on the corner of Jervis Street and Mary Street and of sites in Mary Street and Jervis Street adjoining the licensed premises.
Keating have issued proceedings against the developers and builders claiming damages for nuisance, negligence, trespass and wrongful interference with Keating's contractual relations with their customers. They have now brought a motion seeking interlocutory relief in the following form:-
a "(a) An injunction restraining the defendants or either of them either by themselves or by their servants or agents or any party having notice of this order from carrying out the development work at the Jervis Street Shopping Centre site insofar as such work would constitute a nuisance to the premises of the plaintiffs situate at Mary Street, Dublin 2 and/or interfere with the conduct of the plaintiff's lawful business thereon until further order;
b "(b) An injunction restraining the defendants or either of them their respective servants or agents or any party having notice of this order in carrying out such development work at the Jervis Street Shopping Centre site unless they undertake or agree to abide by certain terms and conditions in relation to the carrying out of the said development work as are recited in a Schedule dated the 22nd day of December, 1995 issued by Gilroy McMahon, Architects, which is exhibited in the Affidavit of John Keating upon which this application is grounded".
When the application came on for hearing before me last Friday, Mr. Brian Leonard, S.C., on behalf of Keating, indicated that the form of relief which was now being sought was significantly more confined in its nature. In effect, it is now sought simply to restrain the operating by the builders of a tower crane on a site adjoining the licensed premises to the extent that the jib of the crane moves into the air space above the licensed premises and also to restrict the parking of lorries and other vehicles close to the licensed premises. He seeks to have these restrictions imposed only during certain hours of the day.
Although the relief now being sought is thus far more confined than the terms of the Notice of Motion indicate, it is still necessary to recount, in necessarily summary form, how the dispute between the parties developed. Keating acquired the licensed premises at No. 15 Mary Street and 23 Jervis Street from a company called Cementation Limited and began to trade there in 1990. The adjoining premises at No. 16 and 17 Mary Street and No. 22 Jervis Street were also in the ownership of Cementation Limited, as was No. 17 Mary Street. Cementation Limited sold No. 16 Mary Street to Keating and No. 17 Mary Street and No. 22 Jervis Street to the developers. In turn the developers sold No. 22 Jervis Street to Keating by an agreement in writing dated the 30th September, 1994. By Deed dated the 30th September, 1994 and made between Keating, the developers and other parties, various easements and rights relating to the property were extinguished. On the 13th October, 1995, the developers entered into an agreement with Keating with regard to the demolition and reconstruction of a party wall between Nos. 16 and 17 Mary Street. This also provided for the construction of a new party wall between No. 22 Jervis Street and No. 21 Jervis Street (the ownership of which was retained by the developers.)
In addition to the complaints already referred to, Keating have objected to other features of the developers" activities. They say:
(a) The developers have closed Jervis Street to vehicular traffic for longer periods than was permitted by Dublin Corporation.
(b) There is a very large volume of trucks and heavy traffic in on the site of the development at points close to the plaintiff's premises, resulting in problems of dirt and debris, which Keating say is deterring potential customers from entering their premises.
(c) Building works have been frequently carried out on a twenty four hours basis by the builders, thus causing an undue volume of noise.
(d) The builders have erected hoardings in certain locations, which have the effect of interfering with the visibility of the licensed premises to persons using the western end of Henry Street.
(e) Essential services to the licensed premises have been cut off, including the water supply.
On the 22nd December, 1995, Keating's solicitors wrote to the solicitors for the developers and builders enclosing a report from Gilroy McMahon, architects, detailing conditions which the architects advised should be applied to the development so as:
"To minimise the effect on (Keating's) business, while letting the development proceed for the common good."
The accompanying letter requested...
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Wallace v Kershaw
...restraining trespass were set out a judgment of Keane J. (as he then was) in Keating & Co. Limited v. Jervis Shopping Centre Ltd. [1997] 1 I.R. 512. Keane J. said, at p. 518 of the report:- ‘It is clear that a landowner, whose title is not in issue, is prima facie entitled to an injunction......
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KBC Bank Ireland Plc v McGann
...law is clear. It was stated by Keane J. (as he then was) in Keating and Company Limited v. Jervis Street Shopping Centre Limited [1997] 1 I.R. 512 at p. 518 and had been consistently applied since. What Keane J. said was that:- “It is clear that a landowner, whose title is not in issue, is......
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Harrington v Gulland Property Finance Ltd
...property right can necessarily be said to be an adequate remedy.' 33 In Keating & Co. Limited v. Jervis Shopping Centre Limited & Anor. [1997] 1 I.R. 512 where the plaintiff sought an injunction restraining the defendants from trespass by the operation of a tower crane which moved into the......
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Clare County Council v Bernard McDonagh and Helen McDonagh
...normally be entitled to orders restraining trespass on the one hand (see, e.g., Keating & Co. Ltd. v. Jervis Street Shopping Centre Ltd. [1997] 1 IR 512) and restraining a breach of the 2000 Act on the other. If in this situation the applicant for such relief was a purely private party, the......