Rice v Dublin Corporation. Kenny v Same

• Jurisdiction: Ireland
• Judgment Date: 31 March 1947
• Date: 31 March 1947
• Court: Supreme Court

Rice v. Dublin Corporation. Kenny v. Same.

PATRICK RICE

Plaintiff

and

THE RIGHT HON. THE LORD MAYOR, ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN

Defendants.

NORA KENNY

Plaintiff

and

SAME, Defendants (1)

Supreme Court

Landlord and Tenant - Housing of the Working Classes Acts, 1890 to 1921 -Land compulsorily acquired leased by local authority - Building erected by lessee in pursuance of covenant in lease - Whether building provided by local authority under Housing of the Working Classes (Ireland) Acts,1890 to 1921, within meaning of s. 3 of Landlord and Tenant Act, 1931 -Covenant against using premises for the sale of intoxicating liquor - Whether absolute prohibition of alteration of user - Refusal of landlords to consent to use of premises for sale of intoxicating liquor - No reason given - Onus of proof of unreasonableness of refusal when no reason offered - Landlord and Tenant Act, 1931 (No. 55 of 1931) ss. 3, 57.

Sect. 3 of the Landlord and Tenant Act, 1931, provides:—

"Where the buildings on any land or premises were or are provided by a local authority under the Housing of the Working Classes (Ireland) Acts, 1890 to 1921 . . . . the following provisions shall have effect, that is to say:—

(a) if such land or premises is or are held by such local authority in fee simple, this Act shall not apply in respect of such land or premises; . . . ."

Sect. 57 of the same Act provides:—

"1. Every lease . . . . of a tenement which contains a covenant . . . . absolutely prohibiting the alteration of the user of such tenement shall have effect as if such covenant . . . . were a covenant . . . . prohibiting the alteration of the user of such tenement without the . . . . consent of the lessor.

2. In every lease . . . of a tenement in which there is contained a covenant . . . . prohibiting either expressly or by virtue of the foregoing sub-section of this section, the alteration of the user of such tenement without the . . . . consent of the lessor, such covenant . . . . shall . . . . be deemed to be subject:—

(a) to a proviso to the effect that such . . . . consent shall not be unreasonably withheld. . . ."

A plot of ground was compulsorily acquired by the defendants under the Housing of the Working Classes (Ireland) Acts, 1890 to 1921, and leased to the plaintiffs in separate parcels. Each lease contained covenants by the lessee (a) to erect a two-storey shop and residence and (b) not to permit the premises so erected to be used for the sale of intoxicating liquor. On the application by the lessees for leave to use their respective premises for the sale of intoxicating liquor, the defendants refused their consent without assigning any reason. The plaintiffs thereupon instituted proceedings for declarations that the defendants had unreasonably withheld their consent. It appeared from the evidence that the defendants' refusal was based upon their general policy not to permit the sale of intoxicating liquor in any premises on their new housing estates.

On Cases Stated by Davitt J. for the opinion of the Supreme Court:—

Held by Maguire C.J., Murnaghan and Geoghegan JJ. (O'Byrne and Black JJ. dissenting) that the buildings erected by the plaintiffs in pursuance of their respective leases were not provided by the defendants under the Housing of the Working Classes Acts, 1890 to 1921, within the meaning of s. 3 of the Landlord and Tenant Act, 1931.

Held also by Maguire C.J., Murnaghan, Geoghegan and Black JJ.:—

(a) The covenants in the leases not to permit the premises to be used for

the sale of intoxicating liquor were covenants absolutely prohibiting the alteration of the user of the premises within the meaning of s. 57, sub-s. 1 of the Landlord and Tenant Act, 1931; (b) Notwithstanding that a landlord does not assign any reason for his refusal to consent to the proposed alteration of user, the onus of proof is still on the tenant to show that such consent is unreasonably withheld; (c) The reasonableness or unreasonableness of the landlord's refusal of consent does not depend for its determination upon the special circumstances of the tenant's case.

Accordingly the Cases were referred back to Davitt J.

Held by Davitt J. that it would not be reasonable for the defendants to adopt the attitude that in no circumstances would they permit the sale of intoxicating liquor in any premises upon their housing estates, but that they should consider each application for such permission upon its merits in relation to the policy or scheme formulated for the particular housing estate.

Cases Stated by Davitt J. pursuant to s. 38, sub-s. 3 of the Courts of Justice Act, 1936, for the determination of questions of law arising on the hearing of two appeals from the Circuit Court at Dublin on the 24th January, 1946.

The Case Stated in the case of Patrick Rice was as follows:—

"This is a Case stated by me, Cahir Davitt, sitting as one of the Judges of the High Court in Dublin for the hearing of appeals from the Dublin Circuit.

The civil bill was brought by the plaintiff for a declaration that the defendants had unreasonably withheld their consent to the user for the sale of intoxicating liquor for consumption off the premises of No. 123, Galtymore Road, Crumlin, in the City of Dublin, and for an order requiring them to give their consent to such user.

The facts of the case are as follows:—

1. By indenture of lease dated the 17th August, 1940, and made between the defendants of the first part, the Minister for Local Government and Public Health of the second part and Thomas R. Dagg and Elizabeth Dagg of the third part, the defendants, with the consent of the said Minister, demised unto the said Thomas R. Dagg and Elizabeth Dagg all that plot of ground forming part of the estate of the defendants situate on the west side of Galtymore Road, Crumlin, in the City of Dublin, therein more particularly described, for the term of 150 years from the 29th September, 1939, subject to the yearly rent of £22.

2. The said lease contained (inter alia) (a) a covenant by the said lessees to erect on the said site within twelve months from the 11th March, 1940, a two storey premises consisting of a shop on the ground floor and a residence on the upper floor, of such design and material as should meet with the approval in writing of the housing architect of the defendants, and (b) a covenant by the said lessees not to permit or suffer the said premises or any part thereof to be used for the sale of intoxicating liquor or to be used or occupied as a brothel.

3. Pursuant to and in compliance with the covenant to that effect contained in the said lease the lessee erected a shop and residence which premises are now known as 123, Galtymore Road, Crumlin.

4. The lands on which the said premises are built were acquired by the defendants compulsorily under the provisions of the Housing of the Working Classes Acts, 1890-1932 and are now held by the defendants in fee simple.

5. By indenture of assignment dated the 23rd December, 1943, and made between the said Elizabeth Dagg of the one part and the plaintiff of the other part the said Elizabeth Dagg, in consideration of the sum of £3,750 paid to her by the plaintiff, assigned to him the premises comprised in the said lease for the residue of the term of 150 years.

6. A grocery and provision business has been carried on in the said premises since the 31st August, 1940.

7. By letter dated the 1st May, 1945, the plaintiff applied to the defendants for their consent to the user of the said premises for the sale of intoxicating liquor for consumption off the premises.

8. In 1938, the City Manager decided that all future leases on the defendants' new housing estates should contain covenants prohibiting the use of the demised premises for the sale of intoxicating liquor. The plaintiff and one Nora Kenny (who is plaintiff in a similar suit against the defendants in which I have stated a Case upon the same points of law as the present case) are, so far, the only lessees to request the defendants to waive such a prohibition. Their applications were referred to the defendants' housing committee. The housing committee decided as a matter of general policy not to consent in the case of any lease containing such a prohibition to the user of the demised premises for the sale of intoxicating liquor. In accordance with this policy they decided to refuse the plaintiff's application.

9. By letter dated the 4th June, 1945, the defendants refused to give their consent to the proposed user by the plaintiff of the said premises. They gave no reason for their refusal.

10. By order of the Circuit Court dated the 21st December, 1945, it was declared that the defendants had unreasonably withheld their consent to the said premises being used for the sale of intoxicating liquor for consumption off the premises, and from this order the defendants have appealed.

11. On the hearing of the appeal counsel for the plaintiff contended that the Landlord and Tenant Act, 1931, applied, and plaintiff's case was based upon s. 57 of the Act. The evidence adduced on plaintiff's behalf was directed only to the matters referred to in paragraphs 1, 2, 3, 5, 6, 7 and 9 of this Case, as well as to the circumstance that it would be for the convenience of the public if the plaintiff were the holder of an off-licence in respect of the said premises.

12. On the conclusion of the plaintiff's case counsel for the defendants applied for a direction on the following grounds:—

i. That assuming that the application of the Landlord and Tenant Act, 1931, was not excluded by reason of the provisions of s. 3 thereof, s. 57 did not apply to the case as the lease contained no covenant or agreement absolutely prohibiting the alteration of the user of the premises within the meaning of the first sub-section of that section.

ii That if s. 57 did apply, the plaintiff had not discharged the onus resting upon him of establishing that...