Square Management Ltd v Dunnes Stores Dublin Company

JurisdictionIreland
JudgeMs. Justice Whelan
Judgment Date06 October 2017
Neutral Citation[2017] IECA 256
Date06 October 2017
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2017] IECA 256 Court of Appeal Record No. 2017/162

[2017] IECA 256

THE COURT OF APPEAL

Whelan J.

Ryan P.

Hogan J.

Whelan J.

Neutral Citation Number: [2017] IECA 256

Court of Appeal Record No. 2017/162

BETWEEN/
THE SQUARE MANAGEMENT LTD., NATIONAL ASSET PROPERTY MANAGEMENT DAC

AND

INDEGO LTD.
PLAINTIFFS / RESPONDENTS
- AND -
DUNNES STORES DUBLIN COMPANY
DEFENDANT / APPELLANT

Development – Planning permission – Leases – Appellant seeking to appeal against High Court orders – Whether the respondents were entitled to carry out development on foot of planning permission

Facts: The defendant/appellant, Dunnes Stores Dublin Company, held the leasehold interest in two units at Tallaght Shopping Centre. On 23rd September, 2014, An Bord Pleanála granted planning permission to the third plaintiff/respondent, Indego Ltd, for the phased construction of a multi-storey car park to include 832 car parking spaces on part of the common areas including the Northern Car Park Area of the Shopping Centre. Dunnes contended that they enjoyed rights either under the terms of an Indenture dated 1st August, 1991 or otherwise pursuant to the terms of leases dated 11th June, 1990 (the E & G Lease) and 21st August, 1992 (the F Lease) of such a nature as to entitle it to veto or otherwise restrain the proposed development. They further insisted that the common areas of the shopping centre and, in particular, the Northern Car Park Area be maintained for the respective terms of the said leases in its configuration of 289 surface level car parking spaces. On 2nd March, 2017, Barrett J in the High Court found for the first and second plaintiffs/respondents, the Square Management Ltd and National Asset Property Management DAC (the Landlords), holding that the 1991 Indenture was null and void. He further held that the development was permitted by the terms of the E & G and F Leases and that the proposed development was not a derogation from the grants of either of the said leases. Dunnes appealed to the Court of Appeal from aspects of the judgment and orders made in the High Court. The Landlords filed a notice of cross appeal. The appeal concerned whether the Landlords, as owners of the Shopping Centre and its common areas, were entitled to carry out the development on foot of the planning permission.

Held by Whelan J that in respect of Orders 5 and 6 of the High Court, she would dismiss grounds 1 and 2 of the appellant's appeal. With regard to the contention in ground 3 that the trial judge erred in law and fact in holding that the 1991 Indenture sought to effect a bare assignment of a licence coupled with an interest, Whelan J accepted that this was well founded; however, this finding did not alter the conclusions regarding the central issue in the appeal. In relation to ground 4, Whelan J dismissed it since it was predicated on Dunnes succeeding in their claim to have a proprietary interest in the lands outlined in blue. In regard to Dunnes' claim that the trial judge erred in law in failing to find that the first respondent, being a party to the 1991 Indenture, could not disclaim it by reason of the doctrine of estoppel by deed, Whelan J upheld that ground of appeal; however, that finding did not alter the conclusions regarding the central issue in the appeal. Turning to Dunnes' claim that the trial judge erred in law in holding that principles of contractual interpretation were to be applied to the interpretation of deeds, Whelan J dismissed that ground of appeal. In respect of Order 7 made by the trial judge dismissing all of Dunnes' counterclaim, Whelan J dismissed Dunnes' grounds of appeal save and except as follows: 1) she would grant the declaration that the said licence was irrevocable save in the circumstances provided for in clause 2 (a) of Part III; 2) she would also grant the declaration that the letter from the plaintiffs' solicitors dated 29th October 2015 did not have the effect of revoking the said licence. Whelan J held that those findings did not alter the conclusions regarding the central issue in the appeal.

Whelan J held that all other grounds of appeal should be dismissed. Whelan J also dismissed the cross appeal.

Appeal and Cross Appeal dismissed.

JUDGMENT of Ms. Justice Whelan delivered on the 6th day of October 2017
Introduction
1

Dunnes Stores Dublin Company (hereinafter 'Dunnes') holds the leasehold interest in two units at Tallaght Shopping Centre (hereinafter 'the Shopping Centre'). On 23rd September, 2014 An Bord Pleanála granted planning permission, Planning Register Reference Number SD13A/0192 to the third named respondent, Indego, for the phased construction of, inter alia, a six level multi-storey car park to include 832 car parking spaces on part of the common areas including the Northern Car Park Area of the Shopping Centre. Overall, the development proposed results in a net increase in parking capacity of 432 spaces at the Shopping Centre.

2

This appeal concerns whether the first and second named respondents (hereinafter referred to as 'the Landlord'), as owners of the Shopping Centre and its common areas are entitled to carry out the development on foot of the planning permission.

3

Dunnes contends that they enjoy rights either under the terms of an Indenture dated 1st August, 1991 (hereinafter 'the 1991 Indenture') or otherwise pursuant to the terms of leases dated 11th June, 1990 (hereinafter 'the E & G Lease') and 21st August, 1992 (hereinafter the 'F Lease') of such a nature as to entitle it to veto or otherwise restrain the proposed development. They further insist that the common areas of the shopping centre and, in particular, the Northern Car Park Area be maintained for the respective terms of the said leases in its current configuration of 289 surface level car parking spaces. In the case of the E & G Lease the residue of the term outstanding is in excess of 9,950 years.

4

In a comprehensive judgment delivered 2nd March, 2017, Barrett J. in the High Court found for the Landlords holding inter alia that the 1991 Indenture was null and void: see [2017] IEHC 146. He further held that the development was permitted by the terms of the E & G and F Leases and that the proposed development was not a derogation from the grants of either of the said leases.

The Title
5

The title was considered in detail by Barrett J. in his judgment. Given that the respective rights of the parties at issue in this appeal are governed by the terms of certain key deeds it is necessary to briefly set them out again.

6

The Landlord's title may be summarised as follows:-

On 22nd October, 1984, an Agreement was made between Dublin Corporation of the one part and L & C Properties Limited of the other part whereby L & C agreed to build the development which later came to be known as Tallaght Shopping Centre. Dublin Corporation agreed to grant to L & C Properties a lease on the terms of a draft Head Lease annexed to the said agreement subject to the terms as therein provided.

7

A specific proviso contained in the said agreement provides as follows:-

'(5) The Corporation shall provide by way of licence to the Lessee at a fee of 1 Pound (IR £1.00) per annum in the form annexed hereto car – parking facilities for up to 2,000 car spaces on completion of the Approved Development with finished and adequate access roadways services and roadways to service yard areas footpaths and pedestrian malls and lighting to serve the same at a location or locations agreed or to be agreed between the Corporation and the Lessee in proximity to the Approved Development regard being had at all times to the further development of the Town Centre, Tallaght, such car parking facilities to be maintained by the Lessee to the satisfaction of the Corporation and the same shall be handed over by the Corporation to the Lessee complete in all respects as to such access roadways, footpaths and pedestrian malls, lighting, entrances and exits, surface markings, foundations and surfaces not later than the date of completion of the approved development under clause (3) hereof. The said Licence shall provide, inter alia, that the Lessee shall be entitled to make such appropriate regulations as it may consider necessary in relation to the operation of the said car park.'

8

This agreement was ultimately rescinded by a subsequent agreement made between the same parties on 8th September, 1988 and was superseded by a Lease executed on the same date.

The 1988 Indenture
9

The Landlord's leasehold root of title thus derives from an Indenture of Lease made on 8th September, 1988 (hereinafter 'the 1988 Indenture') between Dublin Corporation of the first part, Dublin County Council of the second part, and the Landlord's predecessor in title, L & C Properties Limited of the third part.

10

In the 1988 Indenture, 'the licensed lands' are defined as meaning the lands 'hereby licensed upon the terms and conditions contained in the First, Second and Third parts of the Third schedule hereto.'

11

It demises 10 acres for the term of 10,000 years from 8th September, 1988.

12

The Third Schedule to the 1988 Indenture is in three parts each pertaining to a different parcel of the adjoining lands. Various elements are of note in the context of these proceedings. Part 2 of the Third Schedule pertains to the lands described by the parties in these proceedings as the 'call back lands', being lands the title to which was retained by Dublin Corporation and which it reserved for anticipated future building development and in respect of which it reserved to itself the right to call for possession of all or part of same. In the meantime, Dublin Corporation granted a licence to the lessee to lay out the 'call back lands' as car parking facilities on a temporary basis pending it being required by the Corporation or its successors or assigns for building purposes.

13

The 'call back lands' comprised three plots of ground over part...

To continue reading

Request your trial
3 cases
  • Beacon One Management Company clg v Beacon Leisure Investments Ltd
    • Ireland
    • High Court
    • 23 Julio 2019
    ...applicable to construction of deeds, upon which counsel are agreed. 18 In The Square Management Limited v. Dunnes Stores Dublin Company [2017] IECA 256, the Court of Appeal cited with approval the summary of the law by the authors of Wylie & Woods, Irish Conveyancing Law (3rd ed., 2005) wh......
  • O'Donnell v Ryan
    • Ireland
    • High Court
    • 20 Octubre 2017
    ...77 The covenant was recently considered by the Court of Appeal in The Square Management Ltd. & Ors. v. Dunnes Stores Dublin Company [2017] IECA 256, a decision which mostly upheld the decision of Barrett J., which I consider more fully below. 78 As Parker J. said in Browne v. Flower [1911] ......
  • Begley v Damesfield Ltd
    • Ireland
    • High Court
    • 23 Marzo 2018
    ...in The Square Management Ltd v. Dunnes Stores Dublin Company [2017] IEHC 146, and by the Court of Appeal in its judgment on the appeal [2017] IECA 256. Whelan J. expressly approved the reasoning and conclusions of Barrett J. and both Barrett and Whelan JJ. cited with approval the judgment ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT