Michael Terry v Edward J. Stokes

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

Terry v. Stokes

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

1980.

Michael Terry

Applicant

and

Edward J. Stokes

Respondent

High Court

Landlord and tenant - New tenancy application - Business premises - Whether absence of planning permission precluding right to new tenancy - Landlord and Tenant (Amendment) Act, 1980 (No. 10), s. 5.

Words and phrases - "Tenement" - Land "subsidiary and ancillary" to buildings - Landlord and Tenant (Amendment) Act, 1980 (No. 10), s. 5.

By virtue of s. 16 of the Landlord and Tenant (Amendment) Act, 1980, a tenant who has occupied a tenement for three years and bona fide used it, wholly or partly, for the purposes of a business, is entitled to a new tenancy in the tenement on the termination of his previous tenancy.

Section 5, sub-s. 1 of the Act of 1980 provides that "tenement" means premises complying with, inter alia, 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 rented a yard with a derelict shed from the respondent in 1973, refurbished the shed and built another similar structure. The sheds were built without foundations, and planning permission was never sought. The sheds and the yard were used by the applicant for the purposes of his business, namely the installation and repair of radiators for motor vehicles. The vehicles were kept in the yard, while work was carried out on the relevant parts in one of the sheds. The other shed was used for administrative purposes. Excluding the driveway, the total area of the yard was approximately 1,700 square feet, of which approximately 400/500 square feet were covered by the sheds.

When the applicant's lease expired in 1982, the respondent sought to recover possession of the property, while the applicant claimed to be entitled to a new tenancy, under the terms of the Act of 1980. The respondent resisted, on the grounds that the premises were not a "tenement" for the purposes of that Act, in that (a) the sheds were not "buildings" and (b) the portion of the yard not covered by the sheds was not"subsidiary and ancillary to" the sheds.

Evidence was called by the respondent to demonstrate that the sheds contributed little or nothing to the value of the yard. The respondent also contended that the applicant could not claim a new tenancy in premises for which there was no planning permission.

When the matter came before the Circuit Court, the application for a new tenancy was rejected, and the ejectment proceedings were successful. On the applicant's appeal to the High Court, it was

Held by O'Hanlon J., in upholding the entitlement of the applicant to a new tenancy and in referring the matter back to the Circuit Court for the terms of the new tenancy to be fixed in default of agreement, 1, that the definition of "tenement" in the Act of 1980 referred to buildings simpliciter, as opposed to "permanent buildings" referred to elsewhere in the Landlord and Tenant Acts.

2. That the question of whether or not a structure was a building, or whether the surrounding land was "subsidiary and ancillary" to it was a matter of fact to be determined by the court.

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

3. That it was not...