SMITH v Córas Iompair Éireann (CIE) & Iarnród Éireann (IRISH RAIL)

• Jurisdiction: Ireland
• Judge: Justice Michael Peart
• Judgment Date: 09 October 2002
• Neutral Citation: [2002] IEHC 103
• Court: High Court
• Date: 09 October 2002

SMITH v. CORAS IOMPAIR EIREANN (CIE) & IARNROD EIREANN (IRISH RAIL)

DUBLIN CIRCUIT

THE COUNTY OF THE CITY OF DUBLIN

BETWEEN

NOEL SMITH

APPLICANT

AND

CORAS IOMPAIR EIREANN AND IARNRÓD EIREANN - IRISH RAIL

RESPONDENTS

[2002] IEHC 103

No.8492/2001

9CA/2002

THE HIGH COURT

Synopsis:

LANDLORD AND TENANT

Lease

Licence - Appeal from Circuit Court - Whether agreement, notwithstanding its description as a licence, created a lease - Whether creation of lease ultra vires respondent's powers - Landlord and Tenant (Amendment) Act 1980 sections 3, 20, 21(2), 23, 66, 85 - Dublin, Wicklow and Wexford Railway (City of Dublin Junction Railways) Act, 1884 - Land Act 1881 - Land Clauses Act 1885 (2002/9CA; 2001/8492 - Peart J - 9/10/02)

Smith v Irish Rail

Facts: The applicant appealed from the order of the Circuit Court whereby her Honour Judge Linnane dismissed an application made by the applicant for a new lease under the provisions of section 21(2) of the Landlord and Tenant (Amendment) Act 1980. The applicant stated that the premises were a tenement within the meaning of the 1980 Act and the applicant was a tenant and the respondent a landlord. The agreement described the arrangement as a licence. However, the applicant stated that notwithstanding its description, on its true construction, the agreement had the effect of creating a tenancy. The respondent submitted that the intention of the parties to create a licence was clear and unambiguous from the pre-contractual correspondence and the wording of the agreement itself and the conduct of the applicant. The respondent also claimed that the creation of a tenancy by it would be ultra vires its powers.

Held by Peart J.in allowing the appeal and substituting for the order of the Circuit Court an order pursuant to section 21(2) of the 1980 Act that the agreement created a lease. The applicant was granted exclusive possession of the premises and there was nothing in the agreement apart from the use of the words licence agreement, licencor, licencee and licence fee that could not distinguish the document from a tenancy agreement. The creation of a tenancy was not ultra vires

the powers of the respondent.

Citations:

LANDLORD & TENANT (AMDT) ACT 1980 S21(2)

LANDLORD & TENANT (AMDT) ACT 1980 S23

LANDLORD & TENANT (AMDT) ACT 1980 S20

STREET V MOUNTFORD 1985 1 AC 809

IRISH SHELL & PB LTD V JOHN COSTELLO LTD 1981 ILRM 66

WYLIE LANDLORD & TENANT LAW 2ED 1997 2.26 2.38

NATIONAL MATERNITY HOSPITAL V MCGOURAN 1994 1 ILRM 521

LANDLORD & TENANT (AMDT) ACT 1980 S85

LANDLORD & TENANT (AMDT) ACT 1980 S66

GATIEN MOTOR CO V CONTINENTAL OIL 1979 IR 406

DUBLIN WICKLOW & WEXFORD RAILWAY (CITY OF DUBLIN JUNCTION RAILWAYS) ACT 1884

PEARCE LAND LAW 2ED 2000

TEXACO (IRL) LTD V MURPHY UNREP BARRON 17.11.1991 1991/10/2432

SHELL-MEX V MANCHESTER GARAGES LTD 1971 1 WLR 612

TAYLOR V CAULDWELL 1863 3 B & S 826

ERRINGTON V ERRINGTON & WOODS 1952 1 KB 290

FOSTER V LONDON CHATHAM & DOVER RAILWAY COMPANY 1985 1 QB 711

HAMILTON V DUBLIN WICKLOW & WEXFIRD RAILWAY COMPANY 1895 28 ILTR

LAND ACT 1881

LAND CLAUSES ACT 1884 S127

AG V GREAT EASTERN RAILWAY CO 5 AC 473

LANDLORD & TENANT (AMDT) ACT 1980 S3

GREAT SOUTHERN AND WESTERN RAILWAY (IRL) ACT 1844 S224 (PRIVATE)

GREAT SOUTHERN AND WESTERN RAILWAY (IRL) ACT 1844 S223 (PRIVATE)

1 Justice Michael Peart delivered on the 9thn day of October 2002.

2 This matter comes for decision to this Court by way of an Appeal from the Order of the Circuit Court made by her Honour Judge Linnane on the 16 ^th day of January 2002, wherein the learned judge dismissed an application made by the applicant for a new lease of premises set out hereunder, under the provisions of Section 21 (2) of the Landlord and Tenant (Amendment) Act 1980. The premises in question (hereinafter referred to as "the premises ") are those referred to in an agreement dated the 4 ^th of December 1991 and made between Coras Iompair Eireann (thereinafter called "the Board") of the first part Iarnród Eireann - Irish Rail (thereinafter called "the Company") of the second part, and the applicant Noel Smith (thereinafter called "the licencee ") of the third part, as follows:-

"ALL THAT the shop unit on the floor of (but excluding the subsoil thereunder) and within the airspace of the Railway arch (No 1) situate at Tara Street Railway Station in the City of Dublin and which shop unit is shown marked "shop unit" on Plan No (sic) annexed hereto and which Railway arch is shown edged red on the said plan (the said shop unit is hereinafter called "the premises") TOGETHER WITH permission for the Licencee and all persons authorised by the Licencee to use the staff toilet facilities at the station"

3 In his notice of application dated the 29 ^th of June 2001 the applicant seeks the following reliefs:-

4 (a) an order pursuant to Section 21(2) of the Landlord and Tenant (Amendment) Act 1980determining the right of the applicant to a new tenancy in the premises described in the schedule there to (being "the premises") hereinbefore referred to, and in the event of the applicant being found to be entitled to a new tenancy, an order pursuant to Section 23 of the said Act fixing the terms of such a new tenancy;

5 (b) an order providing for the costs of this application; and

6 (c) such further or other order as to this honourable Court shall seem fit and appropriate.

7 In his said application, the applicant indicated that he would rely on the following matters in support of the application:

8 (1) the premises are a tenement within the meaning of the said Act of 1980 and the applicant is the tenant and the respondent is the landlord of same within the meaning of the said Act.

9 (2) the premises are held by the applicant under a contract of tenancy dated the 4 ^th day of December 1991 and made between by the respondent of the first part, Iarnród Eireann - Irish Rail of the second part and the applicant of the third part for a term of ten years commencing on the 1 ^st day of July 1991 which said term will expire on the 30 ^th day of June 2001.

10 (3) on the 28 ^th day of May 2001 the applicant served a notice of intention to claim relief upon the respondent pursuant to Section 20 of the said Act of 1980.

11 (4) the applicant and respondent have been unable to agree as to the entitlement of the applicant to a new tenancy or as to the terms of such tenancy.

12 Against the said order dismissing the application in the Circuit Court, the applicant filed and served a Notice of Appeal dated the 18 ^th day of January 2002. The respondent Coras Iompair Eireann served Notice of Cross Appeal dated the 22 ^nd day of January 2002 against so much of the said order as fails to award costs to the said respondent.

13 The operative part of the said agreement recites at clause 1 thereof that the board and the company "grant the licencee permission during the continuance of this licence to use the premises for the sale of the articles or items hereinafter described in clause 12(3) hereof". Those items do not require to be set out in detail, but are all items one would expect to find in a newsagents shop at a railway station such as newspapers, magazines, sweets, confectionary, sandwiches, etc. The applicant carries on this business under the name "Tara Nova".

14 Clause 2 of the agreement states that the licence shall commence on the 1 ^st day of July 1991 and shall be for a period of 10 years from that date subject to earlier suspension or termination or revocation as thereinafter provided. Clause 6 contains provisions as to the annual licence fee payable during the term of the licence. Other clauses contain provisions one would expect to find in an agreement of this kind, or in some cases in a lease or tenancy agreement and some of these will be referred to later. However clause 10 is important and states as follows:-

"Nothing in this licence shall be construed as giving the licencee any tenancy in or right to possession of or any right or easement over or with respect to any part of the property of the Board or the property of the Company. In particular and without prejudice to the generality of the foregoing it is hereby declared that it is not the intention of either the board or the company on the one part or the licencee on the other part in relation to the premises or the said Railway arch or any part thereof to create between them the relationship of landlord and tenant or to confer such rights upon the licencee as would amount in law to a tenancy (including a tenancy at will) or to create any estate or proprietary interest for the licencee therein."

15 Clause 11 states:-

16 The arrangement hereby evidenced is made by the Board and the Company for their respective temporary convenience which is that the Board or the Company while retaining the ownership possession occupation control and management of the said Railway arch (which is an integral part of the station and the railway undertaking and necessarily and essentially required in connection with the operation thereof) should use the airspace of the said railway arch to good purpose and not allow same to remain idle without profit or return "

17 It is clear from the licence agreement itself, and indeed from the evidence given by the applicant himself and on behalf of the Respondent that the intention of the parties was that a licence would be granted for a period of 10 years at an annual licence fee. Of this there can be no doubt whatsoever. However, Mr. Alex Owens SC for the applicant submits that, in spite of having the outward appearance of a bare licence and in spite of the uncontroverted evidence of the parties' intentions at the time the agreement was entered into, the nature of the agreement is such as to grant a tenancy for the period thereof under the principles set forth in the English case of Street -v- Mountford (1985) 1AC 809 which held in the...