The Gazette 1986

SEPTEMBER 1986

GAZETTE

an absolute order of certiorari to quash the order of the Board. The State (Coras lompair Eireann) -v- An Bord Pleanala, Supreme Court (per Henchy J. Nem. Diss.). 12 December 1984 — unreported. John F. Buckley LANDLORD AND TENANT Right of Landlord to re-enter Premises where Tenant in Arrears with Rent. The Plaintiffs were the lessees of a Unit at Powerscourt Shopping Centre of which the Defendants were the lessors. The lease reserved a rent of £11,160 and also imposed a liability for service charge. The lease also contained a re-entry clause for inter alia non payment of rent and breach of covenant. In April 1984 the Plaintiffs owed the Def- endants over a years rent and over £3,000 for service charges. The Defendants Solicitors sent a letter expressed to be a notice under Section 14 of the Conveyancing Act 1881 calling on the Plaintiffs to pay the arrears of rent and service charges within 14 days. Negotiations followed but the money was not paid. On 6 May 1984 the Defendants re- entered the premises by using a master key. 6 May was a Sunday and no one was present in the shop. The Plaintiffs sought an injunction res- training the landlords from their re-entry. The Court held that a lessor who had a valid re-entry clause for non-payment of rent and/or breach of covenant may after serving a valid notice under Section 14 of the Con- veyancing Act, re-enter peacably and forfeit the lease. Section 14(1) of the Act mentions that a right of re-entry or forfeiture shall not be enforceable "by action or otherwise" unless and until. . . Sub Section (2) refers to a lessor proceed- ing "by action or otherwise" to enforce such a right. The Court referred to Re Riggs [1901] 2 KB 16 which held that the phrase "or otherwise" meant "peacable entry". The Court also referred to a passage in Deale "The Law of Landlord and Tenant in the Republic of Ire- land" at Page 261. "If the lessee does not give up possession peacably the lessor may re-enter. He may not use forc^ for this is a criminal offence. What is required is an unequivocal act showing the lessors intention to re-enter for the breach of covenant and to determine the lease by for- feiture; Sergeant -v- Nash Field A Co. [1903] 2KB". The Court was satisfied that what was done by the Defendants in regaining possession was peacable entry. They had served a notice under Section 14 of the Conveyancing Act which appeared to the Court to be sufficient. The Plaintiffs made no move to claim relief against forfeiture. The Court held that a lessor was not obliged to go to Court. He may enter peacably under a valid re-entry clause for a valid cause after service of a valid notice under Section 14 of the Conveyancing Act. The lessees rights are fully protected by being able to apply to the Court for relief against forfeiture under Section 14 of that Act. F. G. Sweeney Ltd. -v- Powerscourt Shop- ping Centre Ltd. High Court (per Carroll J.)

Bord Pleanala outline permission was granted. There was no oral hearing of the appeal and Dublin Corporation appeared to have been the only party to make direct representations to the Bord in connection with the appeal. The site in question is situate within an area that had been ear-marked by Coras lompar Eireann for development as part of a pro- jected Dublin Transportation Centre. C.l.E. had made some direct representations to the Bord through the planning department of Dublin Corporation but was not a party to the appeal. Part of the Bord's reasons for allowing the appeal were:- While the site is within an area which may be affected by C.l.E. proposals for Dublin Transportation Centre the Bord is not satisfied that it is an essential part of the land required for such a centre and having regard to the status of the relevant C.l.E. proposal it is not considered that a refusal of outline permission for the proposed development would be warranted by ref- erence to those proposals". C.l.E. obtained a conditional order of cer- tiorari quashing the order of the Bord but the cause shown by the Bord was allowed and the order discharged by the High Court. C.l.E. appealed to the Supreme Court against the discharge. The Court noted that C.l.E. had in 1976 adopted a proposal for a Dublin Transport- ation Centre which would be sited on each side of the Liffey between O'Connell Street and Capel Street and connected by a tunnel under the Liffey. C.l.E. proceeded to acquire many properties in the area designated and Dublin Corporation as planning authority gave recognition to the C.l.E. proposal in its Dublin 1980 Development Plan which stated:- In fact no application for development within the designated areas which would materially interfere with the implement- ation of C.I.E.s proposal for the Dublin Transportation Centre has been granted by Dublin Corporation. It was in conformity with that policy that Dublin Corporation twice turned down the developers application for planning permission in this case. Dublin Corporation has no reason to expect that in the appeal their policy of seeking to give effect to the C.l.E. proposals would be interfered with without hearing C.l.E. but that is what hap- pened. The Court stated that it was a classical example of departure from the rule of audi alterem partem. The Court noted that the failure to observe natural justice was particu- lar serious because the party affected was C.l.E. which under Article 65 of the Local Government (Planning and Development) Regulations 1977 was designated as a "public authority for the purposes of Section 5 of the Local Government (Planning and Develop- ment) Act 1976 and accordingly there was a duty on the Bord" so far as may in the opinion of the Bord be necessary for the performance of its functions" to keep itself informed of "the policies and objections for the time being" of C.l.E. In this case the Bord not only breached a rule of natural justice but also disregarded the spirit, if not the letter, of the liaison which the statute envisaged as operating between the Bord and C.l.E. in a case such as this. The Court allowed the appeal and granted

6 June 1984. [1984] IR 501.

John F. Buckley

Copies of judgments In the above cases are available on request from the Society's Library. The photo- copying rate is lOp per page.

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