Closure of doors linking retail spaces amounted to a material breach of planning permission
In Camiveo Ltd v. Dunnes Stores, the Court of Appeal upheld a finding of the High Court that Dunnes Stores were in breach of the planning permission for Edward Square Shopping Centre in Galway by permanently closing doors that facilitated a pedestrian link between that premises and Eyre Square Shopping Centre. It found that the closure of the doors constituted a breach of covenants in the lease, and that Camiveo was entitled to an injunction restraining the closure of the doors during trading hours. The court upheld an award of €45,000 in aggravated damages on the basis that the wrongful closure of the doors breached various covenants in the lease agreement.
In 1997 planning permission was applied for to develop a u-shaped site in Galway city centre which backed onto the existing developments of Eyre Square Shopping Centre and Corbettt Court Shopping Mall. The application for planning permission included linking into the existing Eyre Square Shopping Centre and alterations to that Centre to facilitate the proposed linkages. The drawings submitted to An Bord Pleanala showed revised entrance doors from the anchor unit into an open u-shaped courtyard around which other retail units were situated. The entrance comprised a lobby with double automatic doors (the doors). There was no express condition in the grant of planning permission that there be pedestrian access provided through the doors of the anchor unit of the Edward Square Shopping Centre. When Dunnes closed the doors, the plaintiff initiated legal proceedings claiming that the closure constituted a material breach of the planning permission.
Planning permission interpretation
The question for the Court of Appeal was whether Dunnes was entitled to close and keep closed the main doors of its retail unit with reference to the grant of planning permission. Costello J reaffirmed the principle that planning permissions are not to be construed in the same manner as statutes and statutory instruments and noted that context was a key consideration for interpretation.
In the High Court, Barrett J. had concluded that the planning permission properly construed, required that the doors should operate as access and egress doors to the unit and not simply as fire doors and that the failure to operate the doors as such amounted to a breach of the planning permission for the Edward Square Shopping Centre. On appeal, the identification and application of the legal principles was upheld and Costello J agreed that an objective reading of the planning permission (in light of the relevant case law) required the creation and maintenance of pedestrian linkages between the Edward Square Shopping Centre and the Eyre Square Shopping Centre.
Costello J stated: "In order for there to be linkages between the two shopping centres, a pedestrian must be able to travel in a door in one shopping centre and exit through a door in the other shopping centre (or vice versa) and in so doing must be able to travel across the anchor unit and across the Eyre Square Shopping Centre".
While there was no express condition in the grant of planning permission that there be pedestrian access provided through the doors, reading the planning documentation as a whole, led to the inescapable conclusion that there was commitment that linkages between the two developments would be via the doors of the anchor unit. In essence, the use of the doors as a means of pedestrian access and egress, thereby facilitating pedestrian linkage and circulation, was integral to the grant of planning permission. The disabling of the automatic opening mechanism of the doors resulted in the closing of the doors and meant that they were no longer an entrance, as clearly depicted on the plans which were required by the planning permission. It followed that this constituted a material breach of the planning permission for the development regardless of the fact that it arose after the construction had been completed.
Dunnes argued that by virtue of the provisions of lease agreement it was not obliged to keep open the Doors. The covenant expressly provided that "nothing in this lease or otherwise shall oblige [Dunnes] to keep the Demised Premises or any part thereof open for trade or business".
Costello J held that the planning permission cannot be construed by reference to any rights which Dunnes may have under its lease. The planning permission was granted before ever the lease was entered into. The lease was created subsequent to the issue of the grant of planning permission and it could never alter the terms of the planning permission. Simply put, the lease could not authorise Dunnes to indefinitely close the doors as that would amount to a frustration of the conditions of the planning permission.
The Court of Appeal also upheld a number of findings in the High Court that Dunnes failed to comply with their obligations under the lease. They failed to observe lawful requirements and reasonable recommendations of the appropriate local authority in relation to fire and safety precautions affecting the unit. The indefinite closure of the doors and their conversion into emergency doors constituted an alteration of a non-structural nature for which the prior written consent of the respondent was required to be sought. The closing and refusing to reopen the doors while the unit was open for trade also breached the terms of the lease.
The trial judge awarded the respondent €53,860.50 in compensatory damages as a result of a breakdown of commercial relationships with other tenants of the centre and a loss of use of associated rent roll and awarded general damages in the sum of €10,000. In addition, he awarded aggravated damages in the sum of €45,000 to the respondent. Dunnes appealed in respect of each of these awards.
The Court of Appeal held that there was insufficient evidence adduced to ground the award of compensatory damages and the trial judge was in error in holding that the actions of Dunnes caused the losses pleaded by the respondent. On a related note, the ratio of the court meant that Dunnes had been incorrectly found to have engaged in the tort of Causing Loss by Unlawful Means. In relation to the aggravated damages of €45,000, Costello J held that there was ample evidence to support the award and agreed that the rights of the respondent were deliberately flouted by Dunnes without regard to its obligations under the lease or indeed to other occupants of the Edward Square shopping centre.
In summary, the awards of compensatory damages of €53,860.50 and €10,000 were set aside while the award of aggravated damages of €45,000 was affirmed.
*The successful respondent to the Appeal, Camiveo Ltd. was represented by A&L Goodbody.
For more information on this topic contact Ciaran Joyce or any member of A&L Goodbody's Litigation & Dispute Resolution team.
Date published: 20 May 2019