W. & L. Crowe Ltd and Another v Dublin Port and Docks Board

• Jurisdiction: Ireland
• Judgment Date: 20 May 1962
• Date: 20 May 1962
• Court: High Court

W. & L. Crowe Ltd. and Another v. Dublin Port and Docks Board

W. & L. CROWE LIMITED and SHAMROCK FERTILIZERS LIMITED

Plaintiffs

and

The DUBLIN PORT AND DOCKS BOARD

Defendants.

Landlord and tenant - Lease - Covenant against change of user - Proposed sale - Purchaser proposing to change user - Refusal of landlords to consent to change - Declaration sought that refusal was unreasonable - Proper parties to seek such declaration - Landlord and Tenant Act, 1931 (No. 55 of 1931),s. 57.

Witness Action.

The plaintiffs, W. &. L. Crowe Ltd. and Shamrock Fertilizers Ltd., brought proceedings in the High Court for a declaration that the defendants, the Dublin Port and Docks Board, as lessors of certain premises situated at Alexandra Wharf, Dublin, had unreasonably withheld their consent to a proposed change of user of the premises from use for the purposes of timber merchants to use for the purposes of mixing and storing fertilizers.

The facts have been summarised in the headnote and appear fully in the judgment of Haugh J., post.

At the conclusion of the plaintiffs' case the defendants sought an order nonsuiting the plaintiffs upon the grounds 1, that the premises were not a tenement, and 2, that the second-named plaintiffs were not a proper party to the proceedings.

The first-named plaintiffs held premises at Alexandra Wharf, Dublin, under two leases from the defendants, dated respectively the 16th December, 1920, and the 13th October, 1921. The premises held under the lease of 1920 originally comprised two plots on either side of Alexandra Road and the lease contained covenants to expend sums of money on buildings and machinery. Before any buildings had been commenced, one of the plots was surrendered and, in exchange, another plot adjacent to the remaining plot was leased to the first-named plaintiffs by the said lease of the 13th October, 1921. The latter lease also contained covenants to expend sums on buildings and machinery, and the amounts in the lease of the 16th December, 1920, were reduced by the amount covenanted for in this lease. Save as to these sums, the covenants in both leases were identical. The buildings erected in pursuance of the covenants were, with the consent of the defendants, erected substantially on the land demised by the lease of the 13th October, 1921. Each lease contained a covenant by the lessees restricting user of the premises for the purposes of the business of timber and slate merchants only. The first-named plaintiffs were timber merchants and used the premises for the purpose of their business. In the month of December, 1959, the first-named plaintiffs contracted to sell their interest in the said premises to the second-named plaintiffs. The second-named plaintiffs carried on business as fertilizer manufacturers and they proposed to use the premises for the storage and mixing of fertilizers. The contract for sale was made subject to the necessary consent of the defendants being obtained. This consent was applied for by both plaintiffs, but was refused upon the ground that it would not be in the interest of the Port of Dublin to use the site in the manner proposed.

Proceedings were instituted by both plaintiffs for declarations that the defendants' consent had been unreasonably refused and for consequential relief. The defendants contended that the ground upon which they refused consent was reasonable; that the premises were not a tenement within the meaning of the Landlord and Tenant Act, 1931, or that the portion held under the lease of 1920 was not such a tenement; and that the second-named plaintiffs had not any cause of action since there was no contractual relationship between them and the defendants.

Held by Haugh J. 1, that the second-named plaintiffs were proper plaintiffs;

2, That the premises were a tenement within the meaning of the Landlord and Tenant, Act, 1931; and

3, That the defendants were entitled to consider the interests of the Port in deciding whether or not to give their consent, and that their refusal was reasonable.

Haugh J. :—

For clarity's sake, I will refer to the first-named...