The Supreme Court dismissed Cherating Limited’s appeal against an order restraining it from operating a public bar in the basement of Unit 5B at the St. Stephen’s Green Centre without first obtaining further planning permission.
The judgment, delivered by Mr Justice Geoghegan on 11 April 2003, concerned a dispute with Ampleforth Limited, trading as the Fitzwilliam Hotel. The hotel owns the Fitzwilliam Hotel in the centre; Cherating occupied Unit 5B.
The High Court had made the order on 18 September 2002 under section 160 of the Planning and Development Act 2000. It restrained Cherating, its servants or agents, people acting in concert with it, and anyone with knowledge of the order from operating the public bar without further permission.
The High Court’s decision rested on the use made of the basement during the relevant five-year period. Although a 1995 planning permission authorised “restaurant/bar use”, the Supreme Court said the use actually carried on during that period was a licensed restaurant business. There was no ordinary seven-day publican’s licence for the basement. The court considered that ordinary publican’s trade was a different use from restaurant trading with limited drink service, so the earlier use did not establish permission for a public bar. A new permission was needed.
Cherating argued that an affidavit from a former Planet Hollywood employee referred to a “sports bar” showing major sporting events, indicating that there had been a public bar. The Supreme Court rejected that argument. It said the affidavit described the premises as operating as one unit with a licensed restaurant and referred to dispense bars; it did not say the premises had operated as a public bar open to members of the public.
The court did not decide whether “restaurant/bar use” in the 1995 permission included ordinary publican’s trade, or whether a condition in a 1997 permission applied to the whole restaurant or only an extended area. Those issues arose in a notice to vary and did not require consideration after the appeal was dismissed. The Supreme Court therefore left the High Court order in place.