The Minister for Communications and Others v Figary Watersports Development Company Ltd

CourtHigh Court
JudgeMr. Justice William M. McKechnie
Judgment Date03 Sep 2010
JurisdictionIreland
Neutral Citation[2010] IEHC 541

[2010] IEHC 541

THE HIGH COURT

Rec. No.: 3374 P/2005
Min for Communications v Figary Watersports Development Co Ltd

Between:

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES
Plaintiff
-and-
FIGARY WATERSPORTS DEVELOPMENT COMPANY LIMITED
Defendant

FORESHORE ACT 1933 S2

FORESHORE ACT 1933 S7

FORESHORE (AMDT) ACT 1992 S4

CONVEYANCING & LAW OF PROPERTY ACT 1881 S14

WASTE MANAGEMENT ACT 1996 S4

EEC REG 1260/1999 ART 34

MCILVENNY v MCKEEVER 1931 NI 161 1931 65 ILTR 147

LANDLORD & TENANT LAW AMDT ACT IRL 1860 S52

MOFFAT v FRISBY & GOOD 2007 4 IR 572 2007/42/8729 2007 IEHC 140

GS FASHIONS LTD v B & Q PLC & ORS 1995 1 WLR 1088 1995 4 AER 899

LANDLORD & TENANT LAW AMDT ACT IRL 1860 S48

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

WILDGUST & CARRICKOWEN LTD v BANK OF IRELAND & NORWICH UNION LIFE ASSURANCE SOCIETY 2006 1 IR 570 2006 2 IRLM 28 2006/58/12376 2006 IESC 16

CHAPLIN v HICKS 1911 2 KB 786 1911-13 AER REP 224

DAVIES v TAYLOR 1974 AC 207 1972 3 WLR 801 1972 3 AER 836

ALLIED MAPLES GROUP LTD v SIMMONS & SIMMONS (A FIRM) 1995 1 WLR 1602 1995 4 AER 907 1996 CLC 153 1955-95 PNLR 701 1995 70 P & CR D14

FIRST INTERSTATE BANK OF CALIFORNIA v COHEN ARNOLD & CO (A FIRM) 1996 CLC 174 1996 PNLR 17

NORTH SEA ENERGY HOLDINGS NV v PETROLEUM AUTHORITY OF THAILAND 1999 1 AER (COMM) 173 1999 1 LLOYDS 483 1998 EWCA CIV 1953

PAUL & ORS v OGILVY 2001 SLT 171 2000 GWD 5-176 20002000 SCOT CS 19

REDMOND v MIN FOR THE ENVIRONMENT & ORS UNREP HERBERT 13.2.2004 2004/44/10023 2004 IEHC 24

QUINN (A MINOR) v MID WESTERN HEALTH BOARD & O'SULLIVAN 2005 4 IR 1 2005 2 ILRM 180 2005/51/10715 2005 IESC 19

FORESHORE ACT 1933 S3

PINE VALLEY DEVELOPMENTS LTD & ORS v MIN FOR THE ENVIRONMENT & ORS 1987 IR 23 1987 ILRM 747

CONVEYANCING & LAW OF PROPERTY ACT 1881 S14(1)

CONVEYANCING & LAW OF PROPERTY ACT 1881 S14(2)

WYLIE & FARRELL LANDLORD & TENANT LAW 2ED 1998 PARAS 24.14

WYLIE & FARRELL LANDLORD & TENANT LAW 2ED 1998 PARAS 24.15

ETS VEHICLES LTD v FARGATE DEVELOPMENTS LTD 1997 NI 25

BANK OF IRELAND LTD v LISA LADY IRL LTD 1992 1 IR 404 1993 ILRM 235 1992/5/1414

LAW REFORM CMSN CONSULTATION PAPER ON GENERAL LAW OF LANDLORD & TENANT (LRC CP 28-2003)

WYLIE & FARRELL LANDLORD & TENANT LAW 2ED 1998 PARAS 24.25

O'REILLY v GLEESON 1975 IR 258

JONES v CARTER 153 ER 1040 1846 15 M & W 718

FOLEY v MANGAN UNREP LAFFOY 24.8.2009 2009/22/5318 2009 IEHC 404

WHIPP v MACKEY 1927 IR 372

JUDD & ORS (TRUSTEES OF BECTIVE RANGERS FOOTBALL CLUB) v MCALINDEN & ORS (TRUSTEES OF MERRION CRICKET CLUB) UNREP HAMILTON 28.3.1980 1980/6/1194

LENNON v GANLY & ANOR 1981 ILRM 84 1981/10/1828

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND UNREP O'HANLON 3.12.1992 1993/3/668

SMITH v CLAY 1767 3 BRO CC 646 27 ER 419 1767 AMBLER 645

STATUTE OF LIMITATIONS 1957 S27

STATUTE OF LIMITATIONS 1957 S56

STATUTE OF LIMITATIONS 1957 S58

STATUTE OF LIMITATIONS 1957 S65

LANDLORD & TENANT LAW AMDT ACT IRL 1860 S53

BATES v DONALDSON 1896 2 QB 241 1895-99 AER REP 170

HOULDER BROS & CO LTD v GIBBS 1925 CH 575 1925 AER REP 128

RICE & KENNY v DUBLIN CORP 1947 IR 425

TREDEGAR v HARWOOD & ORS 1929 AC 72 1928 AER REP 11

OHS LTD v GREEN PROPERTY CO LTD 1986 IR 39 1986 ILRM 451 1986/4/1317

UPJOHN v HITCHENS 1918 1 KB 171

SINEY v DUBLIN CORP 1980 IR 400 1980/3/482

KENNEDY T/A GILES J KENNEDY & CO v LAW SOCIETY OF IRELAND & ORS (NO 4) 2005 3 IR 228 2004 1 ILRM 178 2003/23/5416

BEATTY v RENT TRIBUNAL 2006 2 IR 191 2006 1 ILRM 164 2005/4/623 2005 IESC 66

EMERALD MEATS LTD v MIN FOR AGRICULTURE & ORS (NO 2) 1997 1 IR 1 1997 2 ILRM 275 1997/8/2914

EEC REG 1260/1999 ART 34

HAYES v MIN FOR FINANCE UNREP SUPREME 23.2.2007 2007/28/5805 2007 IESC 8

WADE ADMINISTRATIVE LAW 5ED 1982

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1990/8/2084

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL 1993 2 IR 237 1993/3/568

ROWLING & ANOR v TAKARO PROPERTIES LTD 1988 AC 473 1988 2 WLR 418 1988 1 AER 163

FRANCOVICH & ANOR v ITALY 1991 ECR I-5357 1993 2 CMLR 66 1995 ICR 722

EEC REG 3889/89

EEC REG 4024/89

WARD v MCMASTER & ORS 1985 IR 29 1986 ILRM 43 1985/6/1600

WARD v MCMASTER & ORS 1988 IR 337 1989 ILRM 400 1988/6/1709

M'ALISTER (ORSE DONOGHUE) v STEVENSON 1932 AC 562 1932 SC (HL) 31 1932 SLT 317

ANNS & ORS v MERTON LONDON BOROUGH COUNCIL 1978 AC 728 1977 2 WLR 1024 1977 2 AER 492

JUNIOR BOOKS LTD v VEITCHI CO LTD 1983 1 AC 520 1982 3 WLR 477 1982 3 AER 201

CAPARO INDUSTRIES PLC v DICKMAN & ORS 1990 2 AC 605 1990 2 WLR 358 1990 1 AER 568

STOVIN v WISE 1996 AC 923 1996 3 WLR 388 1996 3 AER 801

HEDLEY BYRNE & CO LTD v HELLER & PARTNERS LTD 1964 AC 465 1963 3 WLR 101 1963 2 AER 575

High court - Landlord and tenant - Trespass - Damages - Foreshore - Breach of statutory duty - Lost opportunity - Rent arrears - Appeal - Conditions of relief - Landlord and Tenant Law Amendment (Ireland) Act 1860 - Conveyancing Act 1881

On the 26 th April 1993, the plaintiff leased an area of foreshore to the defendant for a period of 99 years from 1 st January 1993, for the specific purpose of developing and maintaining a marina. The plaintiff brought proceedings some years later claiming that the defendant had breached the lease agreement by failing to complete the construction of the marina within the agreed timeframe, and that the reserved rent had not been paid. This amounted to €206,749.28, up to and including the 1st January 2009. The plaintiff sought a number of reliefs, chief amongst which was repossession of the land pursuant to a notice of forfeiture issued on the 12th June 1998 and s. 52 of the Landlord and Tenant Law Amendment (Ireland) Act 1860. There was also a claim for trespass as it was alleged the partially constructed marina had crossed the demised boundary onto the plaintiff”s land.

The defendant denied there was any breach on its part, claiming that the number of unreasonable interventions and failure to give consent for certain matters by the plaintiff was the cause of the delay in the project, and that the historic rent owed should be waived, at least partially, for that reason. Of particular importance was the claim that the plaintiff had failed to process an application for grant aid under an EU scheme called "Interreg IIIA" which it was said cost the business a substantial opportunity. A number of counter claims were made for the plaintiff”s actions.

Held by McKechnie J that the lease between the parties was still active meaning the conditions of the lease remained binding on the parties. The forfeiture notice that was issued in 1998 was followed by a series of correspondence between the parties that demonstrated that they were actively seeking to find a common ground in order to bilaterally enforce and comply with the covenants in the lease. At the same time, the defendant never accepted the notice. As such, it was clear that the intention behind the forfeiture notice had been either expressly or implicitly abandoned by the plaintiff meaning it could not be relied upon now. Due to the delay in time between the issue of the notice and its enforcement, it was held that even if the plaintiff did not intend to abandon the forfeiture, the court would use its discretion to grant relief against forfeiture under s. 14(2) of the Conveyancing Act 1881. In relation to the allegation of trespass, it was held that it was clear the partially constructed marina crossed the land subject to the lease onto the plaintiff”s territory.

In regards to the outstanding rent, it was held that €115,328.14, which represented the rent owing from 1999, was to be awarded to the plaintiff. The plaintiff had claimed for rent from 1993 but it was held that any rent pre-1999 was not recoverable due to the effect of the Statute of Limitations 1957. It was further held that the plaintiff had unreasonably refused consent or made unreasonable requests of the defendants on a number of occasions. These included the plaintiff”s refusal to remove dredge material as originally agreed. However, it was held that the plaintiff had not been unreasonable in requesting an updated Schedule of Works and detailed drawings, plans and technical specifications with regard to breakwaters, as well as a demand for a bond in accordance with an agreement of the 19th May 2000 in the sum of €317,434.52 of suitable duration and which specifies the cover of all works set out in the Schedule of Works.

In relation to the Interreg scheme, it was held that the defendant was entitled to damages for a breach of statutory duty for failing to process the application for grant aid which resulted in a significant missed opportunity for the defendant to a level calculated at 50%.

The case was then adjourned so further submissions could be made before a decision was made on whether conditions should be imposed on the relief made, such as the requests the plaintiff had made of the defendant that had been deemed reasonable, as well as the amount of general damages to be made in relation to the Plaintiff's unreasonable withholding of consent and breach of statutory duty and in relation to the Defendant's trespass or breaches of covenant.

Orders as described above made.

1

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 3rd day of September 2010

2

1. This action arises out of a lease made between the Plaintiff, as lessor, and the Defendant, as lessee, for a term of 99 years from the 1 st January 1993, in relation to lands in Co. Donegal, upon which the Defendant was to construct a marina. The Plaintiff claims that since the commencement of the lease the Defendant has failed, neglected and omitted to pay and discharge the rent thereby reserved. Up to and including the 1 st January 2009, rent in the sum of €206,749.28 remained due and owing, the Defendant having paid only four instalments...

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3 cases
  • HKR Middle East Architects Engineering LC v English
    • Ireland
    • High Court
    • 10 May 2019
    ...the plaintiffs accept that, in accordance with the guidance given by McKechnie J. in Minister for Communications v. Figary Watersports [2010] IEHC 541, they must show:- (a) That, on the balance of probabilities, HKRME had a real and substantial chance of success, not merely a speculative o......
  • Minister for Communications, Marine and Natural Resources v Figary Water Sports Development Company Ltd
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    • 30 July 2015
    ...the High Court before McKechnie J. over sixteen days, judgment, primarily on issues of liability, was delivered on 3rd September, 2010 ( [2010] IEHC 541) (the First Judgment). Subsequently, on 19th January, 2012, McKechnie J. delivered a further judgment ( [2012] IEHC 601) (the Second Judgm......
  • Powerteam Electrical Services Ltd v Electricity Supply Board
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