The High Court dismissed claims by Frank Towey Limited and Sibra Building Company Limited over a median opening near the Foxhunter pub on the N4, finding that South Dublin County Council had not promised to keep it open indefinitely.
Mr Justice Michael Peart delivered judgment on 16 March 2005. The proceedings, begun in 1989, sought to prevent the Council from closing the opening or obtain damages if closure was permitted. The court discharged an undertaking the Council had given during an earlier application for interlocutory relief, allowing it to proceed with closure. The judgment did not itself order that the opening be closed.
Sibra owned the licensed premises and Towey traded there. The companies relied on letters exchanged in 1983 between the Council and the premises’ then owner, Langan. The Council’s reply confirmed six items as agreed on site, including that openings in the completed median would permit specified turns. The companies argued that the arrangement gave them rights through equitable principles, including an easement, estoppel or restrictive covenant.
The Council disputed that the letters created enforceable rights for the companies. It also argued that it could close the opening on road-safety grounds under the Road Traffic Act 1994. A superintendent gave evidence that, in his opinion, the remaining opening posed an extreme danger to traffic.
The judge found that the 1983 discussions arose while roadworks were disrupting access and business at the pub. He interpreted “permanent” access in the meeting note as access after the works, rather than a guarantee that openings would remain for all time. He said a commitment of that breadth would require greater certainty in the agreement. The letters gave the purchaser some comfort about the Council’s intentions, but did not warrant that the openings could never be closed as road plans changed.
The judge also considered the proposed easement. Eastbound traffic had another route to reach the premises, although it was less convenient. He rejected extending the idea of necessity to cover maintaining the pub’s previous profit level. The restrictive-covenant argument likewise failed in light of his interpretation of the 1983 arrangement.
Because those findings disposed of the claims, the court did not examine the evidence about the amount of business the companies feared losing if the opening closed. It dismissed the claims and discharged the Council’s undertaking.