Stained-Glass “Windows” as Part of the Premises: Structural Accession, the Tenant’s Threshold Burden under Deasy’s Act, and the Limits of Fact-Finding

1) Introduction

This appeal concerned ownership of six celebrated Harry Clarke stained-glass works installed at Bewley’s Oriental Café on Grafton Street, Dublin: four “Four Orders” windows and two “Swan Yard” windows. The parties were (i) RGRE Grafton Limited, the present landlord of the premises, and (ii) Bewley’s Café Grafton Street Limited (the long-standing tenant) together with its parent, Bewley’s Limited. The dispute crystallised in 2020 when the Tenant purported to transfer the windows to its parent and then license them back for continued use in the café.

The central legal question was whether, upon installation in 1928, the works became: (a) “part and parcel” of the premises (i.e. part of the structure/realty), in which case the Landlord owned them and the Tenant could never remove them; or (b) tenant fixtures removable under the common law and/or section 17 of the Landlord and Tenant (Amendment) Act 1860 (Deasy’s Act), which (critically) requires proof that the chattels were affixed by the tenant “at his sole expense”.

Although the case is framed as a fixtures dispute, Collins J emphasised the practical driver of the appeal: the limits of reliable judicial fact-finding where contemporaneous records are fragmentary and later evidence invites reconstruction by inference.

2) Summary of the Judgment

The Supreme Court dismissed the Tenant’s appeal and affirmed the Court of Appeal’s order that all six works are owned by the Landlord.

• The Court upheld the finding that the Four Orders operated as conventional windows from installation and became “part and parcel” of the premises.
• The Court agreed with the Court of Appeal that the High Court erred in treating the Swan Yard windows differently. The High Court’s acceptance of a “double fenestration” hypothesis (outer clear-glass windows with Clarke panels acting as inner “mock windows”) lacked adequate evidential foundation and was inconsistent with the weight of evidence and common sense.
• Independently, the Tenant failed to prove a threshold requirement for any section 17 claim: that it paid for, or undertook liability for, the windows. The key contemporaneous document relied upon (a board minute of 9 March 1928) was too ambiguous and incomplete to discharge that burden.

3) Analysis

3.1 Precedents Cited

A. The “part and parcel / fixture / chattel” framework

Collins J adopted the tripartite classification (chattel / fixture / part and parcel of the land) stated in Elitestone Ltd v Morris [1997] 1 WLR 687. The Court treated the distinction as decisive because—on the parties’ common case—if the works were part of the structure, they could not be tenant fixtures and could not be removed in any circumstances.

The judgment restated the foundational principle from Bain v Brand (1876) 1 App Cas 762: (i) what is fixed to the freehold becomes part of it; and (ii) there is a tenant-favouring exception allowing removal of some fixtures (notably trade fixtures) during the term. Importantly, Collins J used Bain v Brand to structure the analysis but insisted that the present dispute was resolved at the prior stage: whether the works were “part and parcel” of the premises on installation.

B. Annexation tests and the burden/onus dimension

The Court relied on the orthodox dual inquiry from Holland v Hodgson (1871-72) LR 7 CP 328 (mode/extent of annexation; purpose/object of annexation), and noted Blackburn J’s articulation of onus: slight affixation tends toward realty unless circumstances show an intention to retain chattel status.

Irish authority on objective purpose was reaffirmed via Ardfert Quarry Products v Moormac Developments Limited (In Receivership) [2013] IEHC 572 (purpose assessed objectively).

C. “Windows cases” and why they mattered (and did not)

The Court reviewed several window-related decisions primarily to assess whether they truly assisted on ownership/removal:

• Climie v Wood (1868-69) LR 4 Ex 328: treated “doors or windows” as examples of things so essential to convenient use that even a tenant could not remove them. Collins J accepted the relevance of the illustration but treated the real controversy as factual: were these works installed as windows forming the building envelope?
• Boswell v Crucible Steel Company [1925] 1 KB 119: emphasised “original structure” in the context of repairing covenants and rejected “landlord’s fixtures” as including elements forming the skin/walls. Collins J treated Boswell as context-specific and not determinative of the present ownership/removal dispute, but it supported the general proposition that elements constituting the building’s enclosure are not “fixtures” as additions—they are the premises.
• Holiday Fellowship Ltd v Hereford [1959] 1 WLR 211: held windows are “in” walls but not “of” walls for repairing covenant language (“main walls”). Collins J rejected an attempt (seen in the Court of Appeal dissent) to transpose this into the “part and parcel” inquiry; the case was about contractual interpretation of repair obligations, not structural accession for ownership.
• Easton v Isted [1903] 1 Ch 405: “a window is not less a window because it is not capable of being opened.” Collins J treated this as essentially self-evident and not central: the key here was that the works were designed to ventilate and were inconsistent with the Tenant’s double-window hypothesis.
• Burt v Haslett (1856) 18 C B 161 and R v Hedges (1779) 1 Leach 201 were considered of limited assistance: they did not materially resolve the core structural accession question on these facts.

D. Tenant-favouring “ornament” authorities—and their limits here

Collins J acknowledged the liberalising line of authority enlarging tenant rights to remove ornamental annexations: In re De Falbe [1901] 1 Ch 523, Leigh v Taylor in [1902] AC 157, and Spyer v Phillipson [1931] 2 Ch 183. These cases supported the broader proposition that the tenant’s exception is not confined to trade fixtures and may cover luxury/ornament where annexation is for enjoyment of the chattel and removal causes no substantial damage.

However, the Supreme Court treated those cases as factually distinct: the tapestries/panelling were purely ornamental and were brought in by the tenant to enjoy as chattels. By contrast, the Clarke works were commissioned and designed as windows for this building, capable of weathering, lighting, and ventilating—features inconsistent with a purely ornamental chattel analysis.

Elliot v Bishop (1854) 10 Ex 496 was recognised as illustrating that items may be both functional and ornamental and still removable, but the Court found the present windows were not shown (as a matter of adequate evidence) to be tenant property affixed for the temporary purposes of the Tenant’s trade.

E. Evidence, speculation, and when courts must decide on the burden

A notable feature of the judgment is its explicit use of civil evidence principles to manage historical uncertainty. Collins J relied on: Rhesa Shipping CO SC v Edmunds ("The Popi M") [1985] 1 WLR 948 (a court is not forced to pick between competing narratives; it may conclude the party with the burden has not proved the fact), endorsed in Ireland by Quinn v Mid-Western Health Board [2005] IESC 19, and applied in a construction dispute in James Elliot Construction Ltd v Irish Asphalt Ltd [2011] IEHC 269.

This evidence-law strand directly powered two ultimate holdings: rejection of “double fenestration” as insufficiently grounded, and rejection of the Tenant’s payment case as too fragmentary to satisfy its threshold burden.

3.2 Legal Reasoning

A. The decisive classification: “part and parcel” ends the removal inquiry

The Court set out a clear decision-tree: if the windows became “part and parcel” of the premises on installation, then (i) they are the Landlord’s property, and (ii) they are not tenant fixtures capable of removal—regardless of who paid. This crystallises the primacy of the “part and parcel” category in landlord–tenant fixture disputes.

B. Rejecting “double fenestration” as an evidentially unsafe reconstruction

The High Court’s split outcome (Landlord owns Four Orders; Tenant owns Swan Yard) turned on acceptance that Swan Yard windows were inner decorative panels behind external clear glass. Collins J held this was not a reliable inference from the evidence. The judgment’s reasoning is multi-stranded:

• Design/function evidence: the Swan Yard windows (like Four Orders) were designed for ventilation, with bespoke opening mechanisms; a double-window arrangement would negate or materially reduce that function.
• Comparative coherence: the six windows were a single commission for a coherent “oriental café” design; treating two as mere mock windows without contemporaneous trace was inherently improbable.
• Absence of contemporaneous support: surviving Clarke correspondence spoke of “windows” and contained no reference to supplying or coordinating outer clear-glass windows.
• Expert evidence: unchallenged testimony that such a dual system was unknown in Clarke’s archive and atypical/unique in period stained glass practice.
• Temporal reasoning: what was observed in 1987 was an unreliable guide to 1928 given extensive intervening alterations, including blocking an opening and later backlighting.

A crucial methodological theme is the Court’s insistence on avoiding “impermissible speculation” and on preferring the simplest explanation consistent with evidence: the Swan Yard windows were installed for the purpose for which they were commissioned and designed—as windows.

C. Section 17 (Deasy’s Act): “sole expense” as a threshold condition, and the Tenant’s evidential failure

Collins J treated payment/undertaking of liability as a threshold requirement for any claim that the windows were tenant fixtures removable under section 17. The Tenant accepted the burden lay on it.

The Tenant’s case depended largely on the 9 March 1928 board minute, which referred to certain post-April 1927 “fittings necessary to adapt the premises for use as a café” and expenditure “on the company’s behalf”. The Supreme Court held this was not adequate to ground a positive finding that the Tenant paid for (or undertook liability for) the Harry Clarke windows: the minute did not mention the windows, was plainly incomplete, and could not be treated as determinative merely because it was one of the few surviving documents.

Importantly, the Court applied The Popi M logic in a property/fixtures setting: where evidence is fragmentary and ambiguous, the tribunal may conclude it cannot responsibly make a positive finding, and must decide against the party bearing the burden. Thus, even if the “part and parcel” analysis had not been decisive, the Tenant’s claim failed for want of proof on this threshold fact.

D. Ornamental character did not reclassify structural windows as tenant removables

The Court accepted the works were valuable and decorative, but refused to treat “ornament” as a shortcut to tenant ownership. Where an item is commissioned as a building element and performs building-envelope functions (weathering/light/ventilation), its artistic quality does not prevent it becoming part of the premises. The “ornament” cases (tapestries/panelling) were distinguished because those objects were, in substance, chattels displayed for enjoyment and not building-envelope components commissioned for the premises itself.

3.3 Impact

A. Practical precedent for heritage/artwork disputes in leased premises

The decision provides a robust framework for disputes involving high-value artistic installations that are also functional building components. It indicates that Irish courts may treat such works as structural accession (“part and parcel”) where they form the enclosure/skin of the building on installation, even if removable in a physical sense and even if they have exceptional artistic value.

B. Evidential discipline: resisting “historical reconstruction” by conjecture

The judgment’s wider significance lies in its explicit guidance on fact-finding under severe evidential scarcity: courts should (i) identify secure evidence, (ii) draw inferences with care, and (iii) refuse speculative “gap-filling”—and, where necessary, decide by the burden of proof. This is likely to be influential in other property disputes involving long timelines, lost records, and competing expert reconstructions.

C. Section 17 claims: payment is not a minor detail

For practitioners, the case underlines that section 17’s “sole expense” language is not formalistic. A tenant asserting removability must be prepared to prove—with adequate evidence—that it bore the cost or liability. Where corporate structures overlap (as here, with Ernest Bewley’s dual role), the Court will not infer payment/ownership from broad or incomplete accounting references.

4) Complex Concepts Simplified

“Chattel”, “fixture”, and “part and parcel”

• Chattel: a movable item of personal property (e.g., a freestanding object).
• Fixture: a chattel attached to land/building so it becomes part of the real property, subject to exceptions (especially for tenants).
• Part and parcel of the land/premises: an element that is not merely added-on, but forms part of the structure itself (the building as a building). Items in this category cannot be removed by a tenant as “fixtures”.

“Purpose (object) of annexation”

Courts ask: was the item attached to improve/enjoy the premises as premises (suggesting realty), or attached so the tenant could better enjoy/use the item as an item (suggesting chattel/tenant-removable fixture)? This is assessed objectively, from circumstances, not subjective assertions.

Section 17 of Deasy’s Act (in plain terms)

Section 17 allows a tenant to remove certain items affixed for trade/ornament/domestic convenience, but only if: (i) the tenant affixed them, (ii) at the tenant’s sole expense, (iii) removal causes no substantial damage, and (iv) there is no contrary agreement. If the tenant cannot prove it bore the cost/liability, the section cannot help.

“Deciding on the burden of proof”

Where evidence is too incomplete or ambiguous, a court is not obliged to choose one story because it seems slightly more plausible. If it cannot responsibly make a positive finding, it must decide against the party who had to prove the point (here, the Tenant on payment).

5) Conclusion

The Supreme Court’s decision establishes (and forcefully applies) two interlocking propositions. First, stained-glass works commissioned and installed as windows forming the building envelope can become “part and parcel” of the premises, defeating any tenant claim to remove them, regardless of artistic value and regardless of alleged tenant benefit. Second, where a tenant invokes section 17 of Deasy’s Act, proof of payment/undertaking of liability is a threshold requirement; and where historical evidence is fragmentary, the court may properly refuse speculative reconstruction and decide the issue by the burden of proof.

In doctrinal terms, the case strengthens Irish fixture law’s emphasis on objective function and structural integration; in methodological terms, it is a significant modern statement on evidential adequacy and the disciplined limits of inference in civil fact-finding.