The High Court has overturned a decision that would have allowed a former pub premises in a Galway shopping centre to be used as a community centre for an Islamic organisation.
The Western Islamic Cultural Centre had wanted to take over the lease on the former pub unit in the Westside Shopping Centre but a dispute followed over whether the existing tenant, Cambervale Ltd, was entitled to assign the lease to it.
Mr Justice Garrett Simons on Tuesday ruled that the landlord, Westside Shopping Centre Ltd, was entitled to refuse to allow Cambervale to assign the lease for use as a community centre.
The judge said Cambervale had not put forward any expert evidence to contradict the evidence on behalf of the landlord that use of the unit as a community centre would represent “dead frontage” and as such was an unsuitable use in the context of a small-scale shopping centre.
A Californian woman in Dublin: ‘Ireland’s not perfect, but I do think as a whole it is moving in the right direction’
Will Andy Farrell’s Lions sabbatical hurt Ireland’s Six Nations chances?
How does VAT in Ireland compare with countries across Europe? A guide to a contentious tax
Prof Donal O’ Shea: ‘The positioning of Ronald McDonald House at the entrance to the new children’s hospital makes me angry’
In August 2020 Cambervale entered into a contract for the sale of its interest in the unit to a company known as the Western Islamic Cultural Centre Ltd.
The premises was last used as a pub in 2018 and is currently in what the judge described as a dilapidated condition, inside and out. In its current state of disrepair, the judge said, it was an eyesore and detracted from the shopping centre.
When Cambervale first told the landlord it was going to assign the lease, it was asked to fill in a questionnaire about the intended use. In information provided, Cambervale said it would be sold as a unit with a pub lease but permission would later be sought to use it as a community centre.
When Westside Shopping Centre Ltd, a wholly owned subsidiary of Elkstone Capital Partners Ltd, failed to respond to the request for permission to assign the lease, Cambervale brought proceedings seeking an order from the Circuit Court allowing the assignment to go ahead.
The landlord, in its defence of those proceedings, said the proposed assignment as a community centre “runs contrary to the good estate management” of the shopping centre.
The Circuit Court ruled the landlord’s consent could be dispensed with. Westside Shopping Centre Ltd appealed to the High Court.
In the appeal, Westside argued that, apart from good estate management, use of the unit as a community centre represented “dead frontage” and, as such, was unsuitable for a shopping centre.
Cambervale argued the landlord was acting unreasonably in withholding consent. It also claimed this withholding was informed by the ulterior motive of facilitating the landlord in obtaining possession of the unit by way of a surrender at an undervalue.
Mr Justice Simons was satisfied, on the balance of probabilities, that the expert evidence established that it was important that there be a good mix of retail uses in a multi-unit shopping centre and that dead frontage was to be avoided.
He was also satisfied, based on the limited information which had been provided to the landlord by the tenant, that the proposed community centre use was properly regarded as dead frontage.
He noted that the suggestion the landlord’s valuation of the premises at €500,000 was a significant undervalue was not corroborated. It appeared from Cambervale’s own accounts it was valued at €481,279, he said.
He was satisfied, on the balance of probabilities, that the withholding of consent was not informed by an ulterior motive.
Cambervale failed to discharge the onus upon it to establish that the landlord acted unreasonably in withholding its consent. He ordered that the Circuit Court decision be set aside and the proceedings dismissed.
- Sign up for push alerts and have the best news, analysis and comment delivered directly to your phone
- Find The Irish Times on WhatsApp and stay up to date
- Our In The News podcast is now published daily – Find the latest episode here