An application by Nicholas Brown, nominated by McCloskey and O'Kane Building Company

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 28 June 2010
• Neutral Citation: [2010] IEHC 261
• Judgment citation (vLex): [2010] 6 JIC 2804
• Court: High Court
• Date: 28 June 2010

[2010] IEHC 261

THE HIGH COURT

McCloskey & O'Kane Building Company Ltd, In Re

IN THE MATTER OF THE LICENSING (IRELAND) ACT 1902 TO 2000 AND IN THE MATTER SECTION 2 OF THE LICENSING (IRELAND) ACT 1902 AND SECTIONS 19 AND 23 OF THE INTOXICATING ACT 1960

AND IN THE MATTER OF AN APPLICATION BY NICHOLAS BROWN, THE PERSON NOMINATED BY:

McCLOSKEY AND O'KANE BUILDING COMPANY LIMITED

LICENSING (IRL) ACT 1902 S2(1)

INTOXICATING LIQUOR ACT 1960 S23

LICENSING (IRL) ACT 1902 S2

LICENSING (IRL) ACT 1902 S2(2)

INTOXICATING LIQUOR ACT 1960 S21

INTOXICATING LIQUOR ACT 1960 S19

WOODS LIQUOR LICENSING LAWS OF IRELAND 3ED 2001 339

COURTS (NO 2) ACT 1986 S4(9)

BANNERTON, IN RE 1986 IR 758

INTOXICATING LIQUOR ACT 1960 S20

INTOXICATING LIQUOR ACT 1960 S32(1)

LICENSING LAW

Objection to grant of licence

Intoxicating liquor licence - Application to renew - Lapsed license - Dilapidated hotel - Refusal - Objection by Fire Officer - Whether premises in fit state to be used as licensed premises - Whether s 2(1) or 2(2) of Act of 1902 applied - Whether jurisdiction to revive or renew lapsed license - Whether premises within the definition of an hotel - Whether undertaking not to trade until Fire Officer satisfied adequate - Re Declan Bannerton [1986] IR 758 considered - Licensing (Ireland) Act 1902, s 2(1) - Intoxicating Act 1960 (No 18), ss 19, 23 and 32(1) - Courts (No 2) Act 1986 (No 26), s 4 - Circuit Court order affirmed (Peart J - 28/6/2010) [2010] IEHC 261

In re McCloskey and O'Kane Building Company Ltd

Facts The proceedings concerned an application by the owners of a hotel in Donegal to renew its liquor licence. It appeared upon purchasing the hotel that it was boarded up with the intention being to develop the lands attached to the hotel. Given the changed economic climate it appeared that the owners wished to renew the licence by virtue of s. 2(1) of the Licensing (Ireland) Act, 1902. The applicants were seeking to renew the licence on the basis that it was in respect of a premises which were licensed within the previous five years. Since the hotel had been boarded up the premises had been vandalised and it appeared that it would require significant reconstruction and refurbishment. This application was opposed by the local Fire Officer who was of the view that the premises were not in a fit state to be used as a licensed premises. The applicant was prepared to undertake that if the licence was revived, the premises would not trade until such time as the Fire Officer was satisfied that it was safe and appropriate to do so. The application had been refused by the Circuit Court and the present application was an appeal from that order. The central issue that fell to be decided was whether licence in question was one granted under section 2(1) of the 1902 Act or section 2(2) of the Act as different consequences flowed from either section.

Held by Peart J in dismissing the appeal. A hotel which was in existence prior to the passing of the Act of 1902 already had a full publicans' licence which enabled it to operate a public bar, and was not confined to serving guests of the hotel. Such licences could renewed annually and also (if they had lapsed) a new licence could be granted provided this was done within five years from the date of last expiry. On the other hand a licence granted under S.2(2) of the 1902 Act by virtue of the provisions of the Intoxicating Act, 1960 (S.19) meant that a hotel owner could extinguish an ordinary seven day licence and thereafter have a public bar in the hotel, thus entitling the owner to serve intoxicating liquors to persons other than hotel guests. However a licence under section 2(2) operated only for so long as the premises to which it relates continued to fulfil the definition of an hotel and operate as such. The applicant would have to seek a new licence under s. 4 (9) of the Courts (No. 2) Act, 1986 which, inter alia, required that a Bord Fáilte Certificate be produced. This presented the applicant with great difficulty given the present state of dilapidation of the premises. There was no jurisdiction to revive by way of renewal the intoxicating liquor licence which formerly attached to the premises and the order of the Circuit Court Judge would be affirmed.

Reporter: R.F.

Judgment of

Mr Justice Michael Peart

1 The applicant is a limited liability company which by Indenture of Conveyance dated 1^st October, 2004 purchased an hotel premises known as Greencastle Fort Hotel in Co. Donegal, together with about seven acres of adjoining land, and the licence and goodwill for a consideration of €2,775,000. According to the evidence which I have heard on this appeal, it appears never to have been the intention of the purchaser to operate the premises as a hotel. Upon the completion of the purchase the hotel premises was boarded up, and has not since traded. Rather, the premises appears to have been purchased with a view to developing the lands attached to the hotel, as the purchasing company is a building development company with, according to the evidence before me, a turnover of some €10 million per annum.

2 The hotel's intoxicating liquor licence last expired on the 30^th September, 2005. It has not subsequently been renewed at any Annual Licensing District Court, and has therefore lapsed. The applicant is anxious to revive it, and seeks to do so by means of the provisions of Section 2(1) of the Act of 1902 which (as amended by s. 23 of the Act of 1960) provides:

3 2 "2.-From and after the passing of this Act, no licence shall be granted for the sale of intoxicating liquors, whether for consumption on or off the premises, except:-

4 (1) For premises (not being premises which were licensed by virtue of paragraph (2) of this section) which were licensed at any time during the period of five years immediately before the day on which notice of an application for the grant of a certificate entitling the holder to receive a licence in respect of the premises is given, pursuant to rules of court, to the appropriate County Registrar or to the appropriate District Court Clerk, as the case may be; …"

5 As I have said, the said licence expired on the 30^th September, 2005, and the applicant filed a Notice of Application to the Circuit Court on the 25^th September, 2009 seeking to renew the licence on the basis that it is in respect of a premises which were licensed within the previous five years.

6 According to the evidence which I have heard, the reason why the applicant company wishes to revive this licence for the hotel premises is because, with the downturn in the national economy since the date of purchase of the premises, the plans for developing the lands attached to the hotel have not come to fruition, and the company wishes...