144 / 262
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
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