FORMER RALLY driver Rosemary Smith has won her High Court action claiming breach of a legal settlement which granted her lifelong rent-free accommodation in a studio apartment at a major Dublin sports centre.
She had sued fitness centre owner Albert Gubay and his Isle of Man-based company, Mardown Ltd, on foot of an agreement based on her vacating her family home, Four Winds, Blackglen Road, Sandyford, Dublin, where Mr Gubay built one of his Total Fitness centres.
Mr Gubay, Crogga Mill, Santon, Isle of Man, and Mardown Ltd had denied Ms Smith's claim for specific performance of the settlement agreement which had arisen out of separate High Court proceedings which were settled in February 2007.
Under that settlement, Ms Smith vacated Four Winds in July 2007 to move to the studio apartment in Total Fitness, Blackglen Road, which, she claimed, had turned out to be a 25sq m (269sq ft) room with no storage facilities and not big enough for long-term habitation.
She also claimed that planning permission for the sports complex contained a condition which excluded long-term residential occupancy of apartments associated with the development, thereby breaching the settlement she had reached with Mr Gubay and Mardown Ltd.
Her solicitor David M Turner said yesterday that Ms Smith had left Four Winds but had not moved into the apartment and had instead lived in the family home of one of her friends.
Colm Ó hOisin SC, for Ms Smith, told the High Court the apartment was part of a Sports Science Village which included dormitory-type accommodation only for athletes and coaches to live in on a short-stay basis. Hugh Mohan SC, for Mr Gubay and Mardown Ltd, contended that a condition in the planning permission which had stated that the dormitory facilities "shall be used solely for visiting athletes and coaches" had been amended by An Bord Pleanála by substituting the word "mainly" for the word "solely".
Mr Justice Liam McKechnie said the case had narrowed to whether or not planning permission for the dormitory development allowed for permanent residential use by someone such as Ms Smith who had planned to use it as her principal and only residence for the rest of her life.
He concluded that the settlement agreement had been breached on the basis the dwelling Ms Smith had been offered did not have planning permission.
He said he could not accept that the use of the word "mainly" could have been substituted by An Bord Pleanála to permit the development of long-term residential dwellings in an area zoned non-residential.
Mr Ó hOisin said he would now move to quickly formulate a claim in damages and any other necessary relief for Ms Smith.
There was considerable urgency on the grounds she was still living with friends and was without a permanent residence.