High Court of Ireland Decisions

Neutral Citation No: [1989] IEHC 29

THE HIGH COURT

ON APPEAL FROM

THE CIRCUIT COURT

SOUTH EASTERN CIRCUIT COUNTY OF WEXFORD IN THE MATTER OF THE LANDLORD AND TENANT (AMENDMENT) ACT 1980

BETWEEN

GEORGE PLANT AND GWEN PLANT

APPLICANTS

AND

DOROTHY OAKES, EXECUTRIX OF WILLIAM OAKES, DECEASED

RESPONDENT

Judgment delivered by O'Hanlon J. the 16th day of March, 1989.

For the purpose of the present proceedings it is not in dispute that the Respondent is the legal owner of the house and premises, Kilcannon House, Enniscorthy, Co. Wexford, and that the first-named Applicant, George Plant, was given a tenancy of the said premises by the Respondent's late husband and predecessor in title, in or about the year 1971.

Since that time the Applicants, who are husband and wife, have lived in Kilcannon House as their family home. The house is set back from the Dublin Road about 500 yards, and at the road frontage and connected to the house by a long avenue, is a garage where the first-named Applicant has carried on business since the 1976/1977. period. The garage premises were erected on land sold to the said Applicant by William Oakes deceased.

In the year 1988 the Respondent served a Notice to Quit dated the 4th March, 1988, for the purpose of terminating the Applicant's periodic tenancy in Kilcannon House and the

Applicants have countered by claiming a new lease in the said premises pursuant to the provisions of the Landlord and Tenant (Amendment) Act, 1980, and relying on what is known as the "business equity" as referred to in Section 13, sub-sec. (1) (a) of that Act. I am satisfied that the original tenancy in the premises was granted to the first-named Applicant only and that the entitlement (if any) to a new lease would arise in his favour only and not in favour of the second-named Applicant.

For the purpose of satisfying the requirements of Section 13, sub-sec. (1) (a) of the Act the Applicant must show that the premises are a "tenement" within the meaning of the Act (an issue which has not been contested); that he was tenant for not less than three years ending with the termination of the previous tenancy (again undisputed), and that the premises were during the whole of such three-year period "bona fide used wholly or partly for the purpose of carrying on a business." The latter requirement is descriptive of the real issue which arises for determination in this case.

The Applicant claims that the dining-room in the house was set aside for use as an office as a necessary adjunct to the garage business carried on by him in the garage premises at the foot of the avenue leading to the Dublin road. His wife (the second-named Applicant) appears to have carried out all the book-keeping and other paper-work which arose in connection with the business, and for this purpose two, and in later times three, filing cabinets were installed in the said room on the ground floor of the house, together with a typewriter and whatever was needed for the Kalamazoo system of book-keeping and accounts.

There was a small office annex to the garage proper, but it was not used as such and all the secretarial and book-keeping work was said to have been carried out by Mrs. Plant in the family home. There was a telephone in the garage and also in the house with no internal telephone system linking the two. VAT Inspectors were called as witnesses to say that when they called to check the VAT returns they were directed up to the house and dealt with by Mrs. Plant. Both telephone numbers are listed in the telephone directory, with the addition of the descriptive words, "motor dealers", opposite the garage number only.

The description of the contents of the room where Mrs. Plant operated suggested that it was not used exclusively for office work, and she herself confirmed that some work done on a few days per week was generally sufficient to cope with the secretarial and book-keeping work of the garage business.

On the evidence I have heard as to the division of labour between the garage premises and the house I am driven to the conclusion that the house was, in fact, being used partly for the purpose of carrying on the garage business and as a necessary adjunct to the operations carried on in the garage proper, at all relevant times and certainly for a period of three years and upwards prior to the termination of the tenancy.

With regard to the meaning to be attributed to the phrase "bona fide" in the sub-section I think these words are probably intended to exclude a claim based on purported business user which was not genuine but was merely embarked upon as a subterfuge for the purpose of building up a "business equity" as a basis for a claim to a new lease under the Act.

In the present case, I am satisfied that the use made of the house for office purposes as an adjunct to the garage business was a means adopted to carry on the business in the most convenient and economic way having regard to the circumstances of the tenant and his family, and, was "bona fide" within the meaning of the sub-section.

A nice question arises as to whether the tenant was under an obligation to apply for "change of user" permission before converting part of his residence to business purposes, under the Local Government (Planning and Development) Acts, but the Respondent did not seek to rely on this failure in resisting the claim to a new lease, and as I had previously decided in the case of Terry v. Stokes (unrep. 13th March 1986) that I should not allow it to defeat a claim to a new tenancy. I would propose to adhere to that decision in deciding the present case.

I therefore propose to affirm the Order made by the learned Circuit Court Judge and declare the first-named Applicant (only) entitled to a new tenancy in the premises referred to in the Notice of Application, beginning at the termination of his previous tenancy and refer the matter back to the Circuit Court to make any further determination that may be necessary in relation to the terms of the new tenancy.

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