High Court of Ireland Decisions

1. The Applicant and Respondent are both restaurant owners. The Applicant carries on business at No.2, Old Bray Road, Cornelscourt, Foxrock, Dublin 18. The Respondent is the owner of the premises next door to the Applicant, namely No.1, Old Bray Road, Cornelscourt. He has from time to time carried on business as a restaurant owner in the said premises and in particular has prepared and served hot food in these premises for consumption off the premises. The Application is inter alia for an Order restraining that activity. By Notice of Motion dated 7th March, 1997 the Applicant claims:-

2. While the Applicant has had planning problems in respect of his own premises to which reference has been made during the hearing, I am satisfied that these problems are not material to the issues which arise in this Application. I will refer to this matter later in the judgment.

3. The Respondent's planning history may be summarised as follows:-

4. On the 12th March, 1996, the Respondent took an assignment of the remainder of a 35 year lease in the property No.1, Old Bray Road from one Thomas Murphy trading as Select Stores Limited and on the 19th February, 1997 he agreed to purchase the head lease of the premises. The premises had been used, prior to the Respondent's acquisition, as a shop and retail unit. The previous owner, Mr. Thomas Murphy, had occupied the premises between 1987 and 1996. The use to which Mr. Murphy put the premises during his occupancy has been an issue in the case. On acquiring the premises the Applicant refurbished the premises, as there had been a fire in the premises during Mr. Murphy's occupancy which had brought about the sale of the premises, and having refurnished them he opened the premises on 17th March, 1996. Part of the work carried out at that time comprised the re-styling of the shop front, the fitting of a security grill and a facie sign. This work was carried out without planning permission and a warning notice having been served by the Dun Laoghaire Rathdown County Council the Respondent applied on the 19th April, 1996 for permission to retain the shop front, security grill and facie sign. This permission was refused on the 18th July, 1996.

5. On the 7th May, 1996 the Applicant applied for planning permission for a change of use of the premises to a take-away. This application was refused by the Dun Laoghaire Rathdown County Council and this decision was upheld by An Bord Plenala on the 6th December, 1996. Enforcement proceedings were then commenced against the Respondent by the Dun Laoghaire Rathdown County Council and these proceedings concluded with the Applicant undertaking to the District Court on the 16th January, 1997 not to use the premises as a take-away restaurant (food outlet) and agreeing that the shop front was only to be changed in accordance with planning permission if and when granted and/or any exempted development if applicable.

6. The premises were closed thereafter until the 6th March, 1997 when the Applicant reopened and traded as a take-away food outlet.

7. Contemporaneous with the proceedings brought by the Applicant in this Court, proceedings were commenced by the County Council of the County of Dun Laoghaire Rathdown seeking the same reliefs under Section 27 of the 1976 Act against the Respondent and this application was heard by this Court at the same time as the present application. These proceedings concluded with an undertaking been given by the Respondent to discontinue the unauthorised use of the premises and to remove certain deep fat frying equipment from the premises.

8. The Applicant in the present proceedings, however, remains desirous of having this matter determined by the Court as he wishes to personally police any Order which he may obtain from the Court.

9. Counsel for the Respondent has identified the three issues upon which he relies on in disputing the Applicant's entitlement to the reliefs claimed in the Notice of Motion. They are:-

10. With regard to point (a). Counsel has referred me to a decision of Mr. Justice Barr, O'Connor and Another -v- Harrington and Others (unreported 28th May, 1987) as authority for the proposition that the principle that where a party seeks equitable relief by way of an injunction, the Court in exercising its discretion takes into consideration the conduct of that party, is equally applicable to applications made under Section 27 of the 1976 Act. I respectfully concur with Mr. Justice Barr when he says:-

11. In the present case, it is clear that the Applicant himself has had and continues to have problems insofar as his own planning position is concerned. However, he has made no secret whatsoever of these problems. From the outset his Counsel detailed these problems and placed them fairly before the Court. I am satisfied that nothing in his conduct demonstrates a lack of bone fides on his part. In O'Connors case, the learned Trial Judge was satisfied that the Applicant "caused an application to be made to the Court under the Section which was seriously misleading and the primary motivation for which had not been disclosed".

12. I as satisfied that nothing of this nature arises in the present case and accordingly this point does not arise.

13. With regard to point (b), that is to say, the suggestion that there has been no material change of user.

14. A consideration of this point involves an examination of the factual evidence before the Court. The lease of the 27th April, 1973 for which the Respondent took an assignment from Thomas Murphy contained a covenant as follows:-

15. Mr. Murphy who traded in the shop between 1987 and 1995 describes in his Affidavit the use to which the shop was put. He used it as a "shop, bakery, delicatessen selling hot foods for consumption off the premises". He says that the range of foods served by him were "in the main sausage rolls, lasagnes, shepherds pies, quiches, volauvants, side salads along with teas and coffees and minerals". A clear picture of the use made of the premises during Mr. Murphy's occupancy is to be obtained from the Affidavits filed in the case.

16. Mr. Hyland has visited the premises since April of 1993 on average three times a week. His description of the premises is as follows:-

17. Mr. Cram, in his Affidavit, says that he has regularly visited the premises during his childhood and teenage years and he describes the premises as "the shop also sold general provisions and general household utilities along with fruit and vegetables and briquettes. In addition, the shop also sold small cakes, rolls, sandwiches and buns. There was never on the premises a deep fat fryer and the proprietor of the premises never sold hot cooked fish, chicken burgers, onion rings or other hot foods which are now listed on the menu and normally sold from the take-away fish and chip shop. Any sales of heated foods would have taken place in very recent years and as such would have been very limited and minor compared to the main business of a retail shop selling sweets, briquettes, newspapers, fruit and vegetables and general provisions".

18. Ms. Eileen Gaynor also knew the premises and gives a full description of the purchase of milk, eggs, vegetables, rashers, sausages, newspapers, bottle gas and similar items.

19. From these Affidavits and the other Affidavits filed on the matter I am left in no doubt whatever that the premises was used prior to its acquisition by the Respondent as a neighbourhood shop nowadays described as a convenience store. This use bears no resemblance to the user now been made of the premises namely as a fast food outlet for sale for consumption off the premises. I reject the Respondent's submissions that the use now sought to be made of the premises is no more than a continuation of the use during Mr. Murphy's occupancy.

20. It is clear that the use of the premises for the purpose of sale of hot food for consumption off the premises is specifically excluded from the definition of a "shop" as defined in the Local Government (Planning and Development) Regulations, 1994 and as such is not an exempted development within the meaning of the Act.

21. I accordingly reject Counsel's submissions that there has not been a material change of user of the Respondent's premises.

22. With regard to submission (c). Section 27 of the 1976 Act (as substituted by Section 19 of the 1992 Act provides that an Application to the Court under the Section "shall not be made after the expiration of a period of five years beginning on the day on which such use first commenced".

23. I am satisfied that the earliest date upon which the unauthorised use of this premises commenced was 19th March, 1996 being the date upon which Mr. Murphy assigned his interest in the property to the Respondent and accordingly the limitation period has no application.

24. Accordingly, I will make an Order granting a relief on the Notice of Motion and I will hear Counsel for the Applicant as to what reliefs are now claimed. In view of the Orders made in the corresponding case in favour of the County Council.