The High Court has ruled that the owners of The Square in Tallaght may proceed with a planned redevelopment affecting the Northern Car Park Area, rejecting Dunnes Stores’ claims that the project breached its rights over the shopping centre’s car parks.
In a judgment delivered on 2 March 2017, Mr Justice Max Barrett held that clause 6 of Dunnes’ E&G lease permitted development on nearby or adjoining premises, including the northern car park. He found that the proposed works would not amount to a derogation from the grant of Dunnes’ leases. Dunnes had argued that losing the surface spaces would permanently interfere with customers’ use of its supermarket and stores.
The court said Dunnes had provided no factual evidence of the commercial detriment it predicted. It accepted evidence that alternative surface parking would remain available during construction and that more than 1,000 surface spaces were expected after completion, alongside a new multi-storey car park. The judgment noted that the multi-storey car park was planned to be built first, in about 14 months.
Dunnes also claimed that a 1991 indenture gave it an irrevocable right for its customers to park on the lands. The court held that the indenture attempted to assign licences separately from the property interests to which they were attached, and was therefore null and void. It rejected the plaintiffs’ alternative argument that the document operated as a sub-licence.
The court did not decide whether the plaintiffs’ 2015 notice revoking any additional parking rights was effective. It said that, had the question needed to be decided, the notice would have been ineffective because the licence was expressly irrevocable except in circumstances of breach, which did not arise.
Dunnes’ alternative claim to a prescriptive easement over the Northern Car Park Area also failed. The court held that Dunnes had an express licence to park, so the use could not establish a right by prescription.
The court declined to grant Dunnes any of the declarations it sought. It said it would grant the plaintiffs a declaration that Dunnes had no right to use the Agreed Lands beyond the rights expressly provided in the E&G and F leases, and a declaration that the purported assignment in the 1991 indenture was null and void. Other declarations sought by the plaintiffs were declined or considered redundant. The judgment’s conclusion records which declarations the court would grant; it does not set out a separate final order on costs.