The Gazette 1973

he has a bona fide intention to pull down and rebuild or reconstruct premises so as to satisfy the provisions of Section 22, Sub-Section (1) of the Landlord and Tenant Act, 1931. The Court was giving its decision in a case stated by Mr. Justice Butler in the High Court, in which Hugo A Dolan had sought a new tenancy in respect of his licensed premises in Corn Exchange Buildings, Burgh Quay, Dublin. Mr. Dolan had brought proceedings in the Circuit Court against the Corporation of the Corn Exchange Building Company of Dublin and Vico Estates Ltd., seeking a new tenancy in the premises. The respondents had disputed Mr. Dolan's claim for a new tenancy, but the court held that Mr. Dolan was entitled to one and directed that he should be given a new lease of 21 years from 15 April 1969, at an annual rent of £430 (exclusive of rates). Vico Estates and the Corporation appealed from the decision to the High Court when it was stated that under an agreement of August 1970 the Exchange Company agreed to sell the entire of the Corn Exchange Building to Vico Estates, subject to a large number of exiting tenancies, including Mr. Dolan's. On 13 April 1966 the Minister for Local Government, on appeal by the Exchange Company, granted it outline planning permission for the construction of an office block on Burgh Quay. This development envisaged the demoli- tion of Corn Exchange Building. The High Court was further told that on 3 February 1971 Vico Estates applied to Dublin Corporation for planning approval for the construction of a new office and commercial block on the site of the building, in- cluding Mr. Dolan's tenancy. The application was refused, but on 25 May 1971 Vico Estates submitted a revised application which also entailed the pulling down and reconstruction of the interior of the building. The application was still the subject of discussion and correpondence between the Vico Estates' architect and Dublin Corporation. In his case stated, Mr. Justice Butler found that at all times since they bought the premises, Vico had bona fide intended to redevelop it and that it would involve the substantial demolition and reconstruction of the building, including Mr. Dolan's tenancy. He also found that as a matter of probability Vico would obtain the necessary planning permission for such re- development and that the company required vacant possession of Mr. Dolan's premises for such redevelop- ment. Mr. Justice Butler stated that each party had in- dicated the intention of asking him to state a case and the questions for the Supreme Court were: (1), In determining whether the conditions existed which were set out in Section 22, Sub-Section (1) of the Act, and which would disentitle Mr. Dolan to a new tenancy under Part III of the Act, should the Court have regard to the circumstances obtaining at (a) the date of service of notice of application to the Court to determine the tenant's right to relief or (b), the date of the hearing of such application. The court was further asked, Mr. Justice Butler said, to decide if a landlord who had not obtained the necessary planning permission for redevelopment, but who had applied for such permission, could be held to have a bona fide intention to pull down and rebuild or reconstruct premises so as to satisfy the provisions of Section 22, Sub-Section (1) (a) of the Act. Delivering the unanimous judgment of the court, Mr. Justice Henchy said that an applicant would 143

decision met with strong and immediate reaction from the plaintiffs, who were members of the Dublin Cattle Salesmasters' Association. They contended that the cor- poration was bound by statute to keep the market open. The plaintiffs instituted proceedings in the High Court seeking orders which would have the effect, not alone of keeping the market open but of compelling the defendants to provide an auction mart in the mar- ket. The President of the High Court held that there was no legal obligation on the Corporation to keep the market open and dismissed the plaintiffs' claim. From that decision the plaintiffs had appealed to the Supreme Court. An interlocutory injunction had been granted in the High Court restraining the Corporation from closing the market pending the decision of the Supreme Court. On 31 July 1972 the Supreme Court granted the plaintiffs a further injunction pending the determina- tion of the appeal. Mr. Justice Henchy, in a long judgment, dealt with the powers given to the Corporation under several sections of the Dublin Improvement Act, 1849, and to the meaning of the section : "It shall be lawful for the Council (the corporation) . . . for ever afterwards to maintain and improve" that market place. Was that power, he asked, to be treated as a duty? He found that the words could not be held to imply an obligation. He said if it were mandatory on the Corporation to maintain the market, then it would also be mandatory to improve it; but, in the absence of clear and unambiguous words, there should not be imputed an intention to impose on the Corporation a perpetual obligation to maintain and improve a market place, regardless of the cost to the ratepayers or the absence of public demand, or its unsuitability. Mr. Justice Henchy said that in his opinion Section 80 of the Act did no more than its marginal note ("council empowered to provide market places") indi- cated; it gave a power, and no more than a power, to build, provide, maintain and improve market places. There was nothing in the wording of the section or in the rights or interests of the public, for whom the discre- tion was enacted, or in the general context of the statute as a whole, to suggest that the power should be treated as a duty. Therefore, the Corporation was within its rights in deciding not to maintain a market place any longer on the North Circular Road site and the plaintiffs pro- ceedings, which aimed at nullifying that decision, must fail. Mr. Justice Walsh and Mr. Justice Griffin agreed with the judgment. Mr. Niall McCarthy, S.C., for the plaintiffs, asked the court for time to consider his clients' position on the question of damages, in view of their undertaking to pay damages when the injunctions were granted. The Court, which awarded costs to the corporation, gave the plaintiffs until the first day of next term to consider the position. [Duffy and others v. Dublin Corporation—Supreme Court per Henchy J.—unreported—10 May 1973.] Planning Permission needed to prove Demolisher's Intentions—Supreme Court gives judgment. The Supreme Court, in a reserved judgment, held that a landlord must prove that he has obtained the necessary planning permission for redevelopment from the Planning Authority, before it can be held that