Like It Love It Products Ltd v Dun Laoghaire/Rathdown County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 05 February 2008 |
| Neutral Citation | [2008] IEHC 26 |
| Docket Number | RECORD NO. No. 177 CA/2007 |
| Court | High Court |
| Date | 05 February 2008 |
AND
[2008] IEHC 26
THE HIGH COURT
CIRCUIT COURT APPEAL
LANDLORD AND TENANT
New Tenancy
Application for new tenancy - Contract of tenancy expressed to be for temporary convenience - Contract subsequently renewed - Local authority landlord seeking vacant possession for scheme of development - Planning permission obtained by different public body - Whether premises tenement - Whether letting for temporary convenience - Whether renewal of tenancy rendered it no longer for temporary convenience - Whether planning authority excluded from provisions of Landlord and Tenant Acts - Eamon Andrews Productions Ltd v Gaiety Theatre Enterprises (Unrep, Circuit Appeal, 26/7/1972), Kramer v Ireland [1997] 3 IR 43, Igote Ltd v Badsey Ltd [2001] 4 IR 511 and Phillips v Medical Council [1991] 2 IR 115 applied; Murphy v O'Connell [1949] IR Jur Rep 1 distinguished - Vocational Education Act 1930 (No 29), s 7 - Local Government (Planning and Development) Act 1963 (No 28), s 75 - Landlord and Tenant (Amendment) Act 1980 (No 10), ss 5 & 21 - Application for new tenancy refused (2007/177CA - Murphy J - 5/2/2008) [2008] IEHC 26
Like It Love It Products Ltd v Dun Laoghaire Rathdown County Council
LANDLORD & TENANT (AMDT) ACT 1980 PART II
LANDLORD & TENANT (AMDT) ACT 1980 S21
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S75(4)
LANDLORD & TENANT (AMDT) ACT 1980 S5(1)(a)(iv)
EAMONN ANDREWS PRODUCTIONS LTD v GAIETY THEATRE ENTERPRISED LTD 1973 IR 295
WYLIE LANDLORD & TENANT LAW 2ED 1998 PARA 3.40
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S75(4)
LANDLORD & TENANT (AMDT) ACT 1980 S5(1)
DRISCOLL v RIORDAN 1885 16 LR IR 235
MURPHY v O'CONNELL 1949 IR JUR REP 1
VOCATIONAL EDUCATION ACT 1930 S7(3)
HAMILTON & HAMILTON ESTATES LTD v SUN ALLIANCE & LONDON ASSURANCE CO LTD UNREP MURNAGHAN 5.7.1971
IGOTE LTD v BADSEY LTD 2001 4 IR 511
KRAMER v ARNOLD 1997 3 IR 43
PHILIPS v MEDICAL COUNCIL 1991 2 IR 115
PICKARD v SEARS & BARRETT 1837 6 AD & E 469
LANDLORD & TENANT (AMDT) ACT 1980 S5
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S75(4)(b)
LANDLORD & TENANT (AMDT) ACT 1943
LANDLORD & TENANT (REVERSIONARY LEASES) ACT 1958
RENT RESTRICTIONS ACT 1960
By Landlord and Tenant Civil Bill dated 22nd May, 2007 the appellant gave notice of an application for a new tenancy of the premises known as Blackrock Town Hall (excluding the library and rates office), relying on evidence relating to the premises being a tenement held on a weekly tenancy from 26th January, 1998, varied by subsequent agreement in writing. The application was refused by the Circuit Court and comes by way of appeal to this Court of the whole of the judgment of that court, of 2nd July, 1997.
The respondent claimed that the tenancy had terminated on 31st August, 2006 by means of a notice in writing dated 23rd June, 2006. The appellant claimed that that notice was not a valid notice to quit.
In the event that the notice in writing was a valid notice to quit and that the tenancy determined on 31st August, the appellant claimed a new tenancy pursuant to Part II of the Landlord and Tenant (Amendment) Act, 1980. As, in the whole of the five years preceding that date, the premises was bona fide used by the appellant as tenant for the time being wholly for the purposes of carrying on a business. On 30th August, 2006 the appellant, complying with the provisions of s. 21 of the Act, duly served on the respondent a notice of intention to claim the relief sought, and claimed a new tenancy and compensation for improvements and/or compensation for disturbance. The parties failed to agree on the terms of a new tenancy.
By defence and counterclaim delivered 18th June, 2007 the respondent denied the plaintiff's entitlement. The agreement of 26th January, 1998, extended by letter of 22nd July, 1998 was for a temporary convenience letting of the premises for the purposes of s. 75(4) of the Local Government (Planning and Development) Act, 1963. Accordingly, the said agreement is excluded from the provisions of the Landlord and Tenant (Amendment) Act, 1980.
Moreover, in the alternative the respondent requires vacant possession thereof for the purpose of carrying out a scheme of development which includes the said premises and in respect of which planning permission exists. Accordingly, the appellant is not entitled to a new tenancy.
Furthermore, the creation of a new tenancy would not be consistent with good estate management. A notice to quit is not required in respect of the temporary agreement letting. The appellant is estopped and precluded from saying that a notice in writing dated 23rd June, 2006 is not a valid notice of termination. The appellant was at all material times fully aware of the nature of the temporary convenience letting as entitlement to occupy the premises. It was denied it made improvements or was entitled to a new tenancy or to compensation for improvements or compensation for disturbance.
By way of counterclaim the respondent sought a declaration that the appellant was not entitled to a new tenancy in the premises or to compensation for improvements or compensation for disturbance under the provisions of the 1980 Act.
The temporary convenience was the letting of the premises for such period until the respondent Council required possession of the premises for the purposes of its statutory powers, functions and duties and that the grounds thereof were stated in the agreement of 26th January, 1998. The Vocational Education Committee of the Council had obtained permission on 18th December, 2003 for the refurbishment, alterations and extension of the premises.
The plaintiff/appellant, having appealed the order of the Circuit Court, submitted that the question as to whether the letting under which the premises was held as a temporary convenience letting was a matter to be determined under s. 5(1)(a)(iv) of the 1980 Act which states:
"(iv) Such contract or tenancy is not a letting which is made and expressed to be made for the temporary convenience of the lessor or lessee and, (if made after the passing of the Act of 1931) stating the nature of the temporary convenience …"
Such temporary convenience must be stated in the agreement and must actually be made for a temporary convenience:Eamonn Andrews Productions Limited v. Gaiety Theatre Enterprises (Circuit Appeal - 26th July, 1972) and see Wiley: Irish Landlord and Tenant Law (second edition) p. 3.40.
The plaintiff says that the temporary convenience was not identified.
Mr. Andrew Coffey, the principal of the plaintiff company (also known as Andy Ruane), gave evidence of his contact with Mr. O'Hare of the defendant Council with regard to the company's use of the room above the library in autumn, 1997. The company wished to use the premises for the purpose of making programmes for TnaG, in early January, 1998. He gave evidence of spending IR£25,000 for repairs and looking for permanence. He agreed that the letting was a temporary convenience letting and was initially for five and a half months and that s. 75(4) of the1963Planning and Development Act applied. In cross-examination he agreed that the premises was 5,000 sq. ft. and the rent reserved was £100 per month. While repairs and refurbishment was done, there were not any improvements. He said he signed the agreement on 26th January, 1998 with legal advice. A letter from his solicitor of 19th December, 1997 referred to a caretaker's agreement.
He agreed that the wording of the letting agreement did not provide for permanence.
2 4.1 Mr. Eamonn O'Hare was then the Acting County Manager of the defendant until May, 2006. He was involved in the letting agreement of 26th September, 1998 which is a lease agreement and simply he was involved in the letting negotiations from 26th September, 1998.
There had been no funding for the development of the premises from 1994/1995. In 1997/1998 there was some discussion regarding a joint venture for the library refurbishment. There was nothing more specific. Now there was planning permission in place for the Vocational Education Committee of the County Council to extend into the building.
Under cross-examination Mr. O'Hare said that the plaintiff required the building for six months. He told them that they had plans for the building and, accordingly, agreed for a temporary convenience letting for six months. Normally the County Council gave eleven months convenience letting. The County Council wished to preserve the building and possibly to move the library upstairs and to upgrade it.
He was advised that the then open market rent would be £60,000 per annum on the basis of evaluation of £12 per sq. ft. (This equates to a monthly rent of £5,000)
2 4.2 Mr. Eugene Conlon said that the current plans of the County Council were to develop the library and the premises as a senior college. Planning permission had been granted to the VEC. The Council, as freeholder, would give a lease to the VEC who would develop the entire civic building.
Mr. Hugh O'Neill S.C., on behalf of the plaintiff/appellant submitted that the entitlement to a new tenancy under Part II of the 1980 Act was dependent on the premises being a "tenement" as defined in s. 5(1) of the Act as stated above.
He said that the evidence adduced established that no temporary convenience was ever identified other than a possible assertion by Mr. O'Hare to the effect that the Council required the property to be put into repair/made watertight. That general desire was not capable of...
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