The Square Management Ltd v Dunnes Stores Dublin Company

JudgeMr Justice Max Barrett
Judgment Date02 March 2017
Neutral Citation[2017] IEHC 146
CourtHigh Court
Docket Number2015 No. 9118P
Date02 March 2017

[2017] IEHC 146


Barrett J.

2015 No. 9118P



- AND–

Licensing – Construction – Grant of lease – Effect of lease agreements – Acquiring of right by prescription – Contractual interpretation – Plain and natural meaning

Facts: The plaintiffs sought various declarations to the effect that the defendant had no proprietary or other rights in relation to certain lands beyond what was conferred to the defendant pursuant to the specific leases. The defendant, too, sought certain declarations against the plaintiffs. The defendant contended that the proposed development would be contrary to its rights under the relevant lease. The defendant claimed that it had acquired by prescription an easement to use the said lands for car parking, which right would be adversely affected by the proposed development of the said lands. The key issue pertained to the interpretation of various leases entered into between the parties.

Mr. Justice Max Barrett granted some of the declarations to the plaintiffs while refusing to grant the others. The Court refused to grant any declarations to the defendant. The Court held that the meaning that a document conveyed would be a meaning which a reasonable person would convey having all the background knowledge. The Court held that while interpreting the document, factual matrix needed to be considered but not the previous negotiations of the parties, and the words should be given their plain and natural meaning. The Court held that the plaintiffs were entitled for a declaration that the landlord was entitled to carry out the proposed development with the defendant having no irrevocable right to use that land for car park. The Court, however, held that the relevant lease provided for an express license to the defendant for car parking. The Court held that if the plaintiffs carried out the proposed development, it would not interfere with the rights of the defendant so as to cause derogation from grant.

JUDGMENT of Mr Justice Max Barrett delivered on 2nd March, 2017.
I. Overview

A few steps from the County Library building in Tallaght is the terminus of the Luas Red Line. Across from the terminus is a wide expanse of tree-dotted car park that runs up to the red-brick wall of the well-known shopping centre “The Square'.[1] This car park sits on the north-side of the Centre and on the far side of the car-park from the library is the northern entrance to the Centre. The car park appears generally to be busy during the Centre's opening-hours, but visitors looking for other parking can avail of an abundance of surface spaces, principally on the western and southern sides of the Centre, as well as in a multi-storey car park that sits at the north-eastern edge of the Centre.

[1] The court was provided at hearing with a laminated map entitled “TOWN CENTRE, TALLAGHT” and labelled “Plaintiffs' Map”. The court understands this map to replace the map that was annexed to the plenary summons. In this judgment (i) the shopping centre complex ringed in deep blue and stated on that map to mark the “Outline of the Centre lands” is referred to as “the Centre” or “the Square”, (i) the balance of the lands ringed in green on that map and surrounding the Centre is referred as “the Lands”, and (iii) the proposed area of development, including the proposed multi-storey car park, marked in hatched blue on that map is referred to in this judgment as “the Northern Car Park Area”.


The Square has enjoyed something of a fresh lease of life in recent years. Its owners now have grand plans to extend the shopping centre into the Northern Car Park Area. Their objective is, inter alia, to bring the centre physically closer to the heart of Tallaght[2] and to transform a still-popular but perhaps somewhat jaded shopping centre that is now close on 30 years old into a more modern and exciting commercial venue that is better placed to compete with what was referred to in court as the “necklace” of high quality shopping centres that straggle the M50 motorway loop around Dublin City. Moving from south to west to north these are Dundrum Town Centre, Liffey Valley Shopping Centre, Blanchardstown Shopping Centre and the Pavilions in Swords. The Square sits roughly between Dundrum and Liffey Valley Shopping Centres, and it seems that its principal competitor, at least in its revamped form, would be Liffey Valley Shopping Centre.


Planning permission has been obtained for the proposed re-development and, while the diggers are not quite lined up on-site, the roll-out of the project seems largely ready to commence. Indeed, it has been suggested by the plaintiffs that there is now some urgency to starting into the development works in order that the Centre can maintain and enhance its competitiveness in a manner that is to the economic benefit of the owners and also, it is claimed, the existing tenants at the Centre whose commercial interests will be advanced by the increased visitor footfall that the planned refurbishments are expected to bring.


Of the existing tenants at the Centre, Dunnes is the largest. It is a so-called “anchor tenant” operating a supermarket (which competes with an on-site Tesco supermarket) and a general merchandise store in a 116,000 square foot space that is spread over two floors. Dunnes maintains that the proposed development will breach its existing rights under certain lease and licence arrangements, not least, though not only, in the building over of the Northern Car Park Area.

II. The Parties

The Square Management Limited (SML) is a limited liability company incorporated in Ireland. It is the management company for the Square. SML is also the freehold owner of the retail units located within the Square which it holds subject to and with the benefit of various leases pertaining to those retail units.


National Asset Property Management Limited is a limited liability company incorporated in Ireland. It is the freehold owner of certain lands, including lands used for car parking that surround the retail units located within the Square.


Indego is a company with unlimited liability incorporated in Ireland. It is the holder of a grant of planning permission for the redevelopment of the Square (the “Planning Permission”) issued pursuant to a decision of An Bord Pleanála dated 23rd September, 2014.


Dunnes Stores Dublin Company (“Dunnes”) is a company with unlimited liability incorporated in Ireland. It is the largest tenant and an “anchor tenant” at the Square.

III. Key Documentation

The key documentation at issue in the within proceedings is the following:

(1) the 1988 Indenture


By lease dated 8th September, 1988 made between Dublin Corporation of the first part, Dublin County Council of the second part and L&C Properties Limited (“L&C”) of the third part, the Corporation and the Council demised the Centre to L&C for a term of 10,000 years from the date of the lease.

(2) the 1988 Licence


In the 1988 Indenture, in addition to the demise of the Centre, the Corporation and the Council granted L&C a number of licences over the Lands, including a licence to lay out a car park on them and park vehicles there.

(3) the Guardian Indenture


By Indenture of Assignment and Transfer dated 1st August, 1989, made between L&C of the first part, the Corporation of the second part, the Council of the third part and Guardian Assurance plc of the fourth part: (i) L&C assigned its interests in the Centre under the 1988 Indenture to Guardian Assurance for the residue of the term under that Deed; (ii) the Corporation and the Council granted to Guardian Assurance the licences set out in the schedule to the 1988 Indenture, including the 1988 Licence.

(4) the 1989 Indenture


By Indenture of Lease of 1st August, 1989, made between Guardian of the first part and L&C of the second part: (i) Guardian sub-let the Centre back to L&C for 9,990 years from that date; (ii) Guardian granted to L&C, with the consent of the Corporation and the Council, ‘for the term of this Lease the benefit of’ licences over the Lands in identical terms to those contained in the 1988 Indenture. National Asset Property Management Limited is the successor in title to the Corporation and Council, each as licensor, their respective interests having subsequently vested in South Dublin County Council from whom National Asset Property Management Limited acquired the Lands on foot of a transfer of 24th October, 2014.

(5) the E&G Lease


Dunnes acquired units E and G in the Centre by way of lease dated 11th June, 1990, made between L&C of the first part, Ansbacher and Company Limited of the second part, and Dunnes of the third part, for the term of 9,980 years from 1st March, 1990. Included in the provisions of the Third Part of the First Schedule to the E&G Lease is para. 6 which provides as follows:

‘Subject to the conditions for reinstatement herein contained full and free right and liberty to alter and/or redevelop (by way of improvement, development, renovation, refurbishment or otherwise) or carry out modifications or extensions or additions to or at the Centre including the Common Areas and to authorise any present or future owner or occupier of nearby or adjoining premises (within or outside the Centre) to demolish, build or rebuild, alter or develop the building or buildings thereon or use the same in any manner notwithstanding that any such demolition, building, rebuilding, alteration, development or user as aforesaid may affect or interfere with or diminish the light coming to the Demised Premises or may temporarily interfere with the occupation, use or amenity or engagement of the Demised Premises.’


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3 cases
  • Square Management Ltd v Dunnes Stores Dublin Company
    • Ireland
    • Court of Appeal (Ireland)
    • 6 Octubre 2017
    ...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 der......
  • O'Donnell v Ryan
    • Ireland
    • High Court
    • 20 Octubre 2017 The Square Management Ltd. & Ors. v. Dunnes Stores Dublin Company (supra), approved the approach of Barrett J. in the High Court [2017] IEHC 146, where he had considered in detail the judgment of Neuberger J. in Platt v. London Underground Ltd. [2001] 2 E.G.L.R. 121, at 122. 94 Neuberge......
  • Begley v Damesfield Ltd
    • Ireland
    • High Court
    • 23 Marzo 2018
    ...from grant was recently considered by Barrett J. his judgment 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......

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