321 / 330
GAZETTE
SEPTEMBER 1986
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
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.)
6 June 1984.
[1984] IR 501.
John F. Buckley
Copies of judgments In the above
cases are available on request from
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copying rate is lOp per page.
in