Supreme Court dismisses appeal upholding High Court order restraining unauthorized public bar use under expired planning permission.

THE SUPREME COURT

Hardiman J.

Geoghegan J.

McCracken J.

307 & 325/02

IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000

and

IN THE MATTER OF AN APPLICATION BY AMPLEFORTH LIMITED TRADING AS THE FITWILLIAM HOTEL

BETWEEN/

AMPLEFORTH LIMITED TRADING AS THE FITZWILLIAM HOTEL

Applicant/Respondent

and

CHERATING LIMITED

Respondent/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 11th day of April 2003

The appellant (hereinafter referred to as “the hotel”) is the owner of the Fitzwilliam Hotel in the St. Stephen’s Green Centre in Dublin.

The respondent on the appeal (hereinafter referred to as “Cherating” is the occupier of a unit in the same building complex known as

Unit 5B. The proceedings arise out of a dispute between the parties in relation to proposed user of Unit 5B as a public bar. On the

18th of September, 2002, the hotel obtained an order of the High Court (Finnegan P.) against Cherating in the following terms. It was

ordered that pursuant to section 160 of the Planning and Development Act, 2000, Cherating, its servants or agents or any persons

acting in concert with it and all persons having knowledge of the making of the order should be restrained from operating a public bar

in the basement of Unit 5B without a further grant of planning permission having first been obtained. The order was sought on a

number of grounds but essentially, the ground on which it was granted was that although a planning permission 252/95 authorised

user of the basement as a restaurant and/or bar, the latter use, in the view of the President of the High Court, to include trading

under an ordinary seven day publican’s licence, the only trading which had in fact been carried on during the relevant five year period

under section 2 of the Local Government (Planning and Development) Act, 1982 was as a restaurant with a restaurant licence

attached. It is accepted that during that period there was not an ordinary seven day publican’s licence in respect of the basement. It

was held in the High Court that the trade carried on in the relevant period was consistent with a licensed restaurant business rather

than a publican’s business and that as the relevant five year period had expired, there was no planning permission for public bar use

under a seven day licence. It was also held that public bar use could not be regarded as merely a continuation of the licensed

restaurant use because both as a matter of common sense and of law they were quite different businesses with the effect that the

addition of a publican’s trade would amount to a clear intensification and, therefore, material change of use. In arriving at this

conclusion the learned President relied in part on the authority of Carrighall Holdings Limited v. Dublin Corporation [1983] I.L.R.M. 268

in which McWilliam J. had observed that a public bar would attract a greater number of patrons than would a licensed restaurant. The

learned President went on to observe that this would be particularly material where the public bar would have live music and dancing

and avail of extended trading hours so that it bore great similarity to what colloquially would be called a nightclub rather than to a

licensed restaurant. The President also had regard to the substantial differentiation in the volume of drink sales.

In the written submissions of Cherating relating to its appeal it is suggested that the learned President in making these findings did

not have proper regard to the affidavit of Mr. McGovern who was a “bar server” from the day that Planet Hollywood (predecessor in

title of Cherating) opened business in November, 1997 until November 1999. Mr. McGovern had then been made bar/restaurant

manager of Planet Hollywood, a job which he retained until October, 2000. In Cherating’s said submissions it is pointed out that Mr.

McGovern referred in his affidavit to a “sports bar” showing major sporting events to customers and diners and that therefore, there

was clearly a public bar. I cannot agree that the evidence on affidavit of Mr. McGovern has any legal significance and, in my view,

the points made in relation to it in the written submissions of Cherating have been effectively answered in the submissions of the

hotel on the appeal. Those submissions correctly point out that in all the affidavits it was accepted that the premises was operated

as one unit with a licensed restaurant business and that nowhere in his affidavit does Mr. McGovern suggest that the premises was

operated as a public bar open to members of the public. Of course, if such a business had been carried on it would have been illegal

and I doubt very much that such illegal use under the licensing code could be taken into account as use for the purposes of the

planning code, but having regard to the facts it is not necessary to consider that issue. As pointed out in the hotel submissions,

paragraph 6 of Mr. McGovern’s affidavit which is the only paragraph that actually describes the nature of the bar use on the premises

states as follows:

“In addition, the dispense bars (my emphasis) on the ground floor and in the basement played a significant part in the

business activities on the premises. The bar on the ground floor was located in the lounge where customers would frequently

gather before dining or, in some cases avail themselves of special cocktails or finger food (which was also available).”

As pointed out in the hotel submissions it seems quite clear therefore that the only bars on the premises were dispense bars which

were clearly compatible with the operation of a special restaurant licence, it being perfectly normal to have an area in which potential

dining patrons may have a pre-dinner drink. In short, there is nothing in Mr. McGovern’s affidavit which undermines the reasoning of

the learned President to the effect that the only use to which the premises was put was a licensed restaurant use and that that use

was altogether different from an ordinary publican’s use.

The ground on which the President granted the injunction was the second ground put forward on the application. He, effectively,

rejected the first ground and hence the notice to vary in this case. The first ground was based on a supplementary planning

permission. That supplementary planning permission contained a condition which, in the submission of the hotel and its experts,

removed any right, if there ever was one, to carry on in this premises a public bar trade.

Although, because of the view which I have formed on the appeal, I will not find it necessary to determine the issues on the notice to

vary, I think it appropriate nevertheless to explain the context of the notice to vary which was based on the first ground of

application before the High Court.

On the 22nd of November, 1995 permission was granted by An Bord Pleanála (Reference 252/95) in the following terms:

“Retail and hotel development on a site including Nos. 128-134 St. Stephen’s Green West and bounded by Nos. 124-127

(inclusive) St. Stephen’s Green West (the former Green Cinema), Glovers Alley and the St. Stephen’s Green Shopping Centre,

including retail use at ground floor and first floor restaurant/bar use at basement level with access from St. Stephen’s Green

West. Hotel with service areas at basement level, entrance foyer at ground level and approximately 130 bedrooms on second,

third, fourth and fifth floor. Basement level also includes approximately sixty-four parking spaces and service areas.

Development will be connected into the existing St. Stephen’s Green Centre at basement, ground and first floor level. Vehicle

access will be from Glovers Alley.”

On the 19th of June, 1997 planning permission was granted by Dublin Corporation (Reference Number 528/97) for a change of use of

the premises as follows:

“A partial change of use of Unit 5B in respect of a permitted hotel and retail development (planning permission 252/95)

incorporating the following; change of use of 50 sq. m. of loading bay to licensed restaurant floor area at basement level; and

change of use of 735 sq. m. of retail area to licensed restaurant at ground floor level.”

Attached to this 1997 permission were a number of conditions. But only condition 2 is relevant to these proceedings. That condition

read as follows:

“The proposed restaurant shall be laid out and permanently maintained at all times with seating and no part thereof shall be

cleared and used as a stand-up drinking area or dance floor.”

Arising out of both of these permissions (there were others which are not relevant to these proceedings) two highly controversial

points of interpretation arose and which were argued on this appeal. These were:

1. The meaning of the expression “restaurant/bar use” in the 1995 permission.

2. The question of whether the condition No. 2 attached to the 1997 permission was intended to apply merely to the extended

permitted “licensed restaurant” use area under the 1997 permission or whether it was intended to apply to the entire

restaurant.

As I have already indicated, the learned President took the view that “restaurant/bar” use meant restaurant and/or bar use and he

further indicated that in his view bar use covered ordinary trading under a publican’s licence. Famously, Palles CB adopted a definition

of “public bar” by reference to a definition in “Mr. Murray’s Dictionary” as “a barrier or counter, from which drink (or food) is served

out to customers in an inn, hotel, or tavern; and hence in a coffee house, at a railway station, etc.; also the space behind the

barrier and sometimes the whole apartment containing it.” (Quinn v. Bourke [1906] 2 I.R. 94 at 97). It is provided in section 16 of

the Intoxicating Liquor Act, 1988 that the holder of a special restaurant licence is expressly prohibited from having a bar on the

premises. A “bar” is then defined in section 2 as “any open bar or any part of a licensed premises exclusively or mainly used for the

sale and consumption of intoxicating liquor and shall include any counter or barrier across which drink is or can be served to the

public.” In the light of these definitions the learned President was left with a difficult question as to what was intended by the 1995

permission, but it seems quite clear that for the purposes of determining this appeal it is not necessary to consider whether he arrived

at the right decision on this point or not.

On the second controversial point of interpretation the learned President held that the condition only applied to the extended bit of

premises and not to the entire restaurant. Again, for reasons which will emerge, I do not find it necessary to form any view as to

whether he was correct or incorrect in that finding. As far as this court is concerned that question only arises on the notice to vary

and, therefore, it does not need to be considered if the court comes to the view that the appeal should be dismissed. In relation to all

questions of interpretation of planning permissions or conditions attached thereto it is important to bear in mind the dicta of McCarthy

J. in XJS Investments Limited v. Dun Laoghaire Corporation [1987] ILRM 659 as set out in the judgment of the learned President.

“Certain principles may be stated in respect of the true construction of planning documents:

(a) To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and

inviting the accepted canons of construction applicable to such material.

(b) They are to be construed in their ordinary meaning as it would be understood by members of the public, without legal

training as well as by developers and their agents, unless such documents, read as a whole necessarily indicates some other

meaning.”

Legal definitions of words therefore whether coming from eminent judges or contained in statutes are of limited value only in

interpreting such permissions and conditions. They are, however, of some value in that within the planning community the legal

meaning of a particular word or phrase may over long years of usage come to be the accepted meaning.

I have digressed into dealing with these problems of interpretation merely because they loomed large at the hearing of the appeal, but

as I have indicated, I am quite satisfied that they do not determine the appeal. What determines the appeal, in my view, is that an

alteration from the kind of restaurant trading accompanied with the limited serving of drink (whether in fact authorised or

unauthorised under the licensing code) which pertained during the relevant five year period was a quite different use than an ordinary

seven day publican’s trade use. Even if on a true construction of the planning permissions when combined or otherwise there had

been permission to carry on a publican’s trade, that permission has expired as the relevant five years without such user has elapsed.

A new permission is now obviously needed and in the absence of it, the hotel was clearly entitled to the order which it obtained from

the learned President.

Accordingly, I would dismiss the appeal. That being so, the issues raised on the notice to vary do not call for consideration.