Application of Perfect Pies Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-HC 1309
• Docket Number: 07685
• Court: High Court
• Date: 01 January 1994

1993 WJSC-HC 1309

THE HIGH COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

07685

PERFECT PIES LTD v. DORAN & ORS

IN THE MATTER OF THE LICENSING ACTS 1833 TO 1988

AND IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT

1961

AND IN THE MATTER OF THE INTOXICATING LIQUOR ACT 1960

SECTIONS 14 AND 15

AND IN THE MATTER OF AN APPLICATION BY

PERFECT PIES LIMITED

APPLICANT

AND

REDMOND DORAN AND OTHERS

OBJECTORS

Citations:

INTOXICATING LIQUOR ACT 1960 S15

INTOXICATING LIQUOR ACT 1960 S14

INTOXICATING LIQUOR ACT 1960 S14(1)(c)(ii)

INTOXICATING LIQUOR ACT 1960 S14(1)(c)

IRISH CINEMAS LTD, IN RE 106 ILTR 17

JAGGERS RESTAURANT V AHERN & ORS 1989 IR 308

TIVOLI CINEMAS LTD 1992 ILRM 522

MCGRATH (APPL OF), IN RE UNREP O'HANLON 4.8.87 1987/7/1912

CHARTON INVESTMENTS, IN RE UNREP O'HANLON 4.8.87 1987/5/1380

WARD, IN RE 1966 IR 413, 101 ILTR 161

POWERS SUPERMARKETS LTD 103 ILTR 137

COMPETITION ACT 1991

URBAN RENEWAL ACT 1986

Synopsis:

EVIDENCE

Onus of proof

Discharge - Negative - Establishment - Applicant - Prima facie proof - Evidential burden - Shift - Respondent to displace prima facie proof - (Appeal from the Circuit Court - Lynch J. - 12/2/93) - [1994] 3 IR 179 - [1993] ILRM 737

|Perfect Pies Ltd. v. Doran & Ors|

LICENSING ACTS

Licence

New premises - Substitution - Old premises - Demolition - Location of new premises - Effect on business of licensed premises in neighbourhood - Vicinity of old premises - Evidence - Onus of proof - Evidential burden - Change - Intoxicating Liquor Act, 1960, s. 14 - (Appeal from Circuit Court - Lynch J. - 12/2/93) - [1994] 3 IR 179 - [1993] ILRM 737

|Perfect Pies Ltd. v. Doran & Ors|

WORDS AND PHRASES

"Vicinity"

Licence - Application - Premises - Demolition - New premises - Location - Vicinity of demolished premises - (Appeal from Circuit Court - Lynch J. - 12/2/93) - [1994] 3 IR 179 - [1993] ILRM 737

|Perfect Pies Ltd. v. Doran & Ors|

1 Judgment of Mr. Justice Lynch delivered the 12th day of February 1993.

2 This is an appeal by the Objectors against an Order of the Dublin Circuit Court made on the 31st of July 1992 which declared, pursuant to Section 15 of the Intoxicating Liquor Act 1960(the Act), that premises situate at No. 40 Dawson Street, Dublin 2 would be fit and proper to be licensed pursuant to Section 14 of the Act if constructed in accordance with plans produced and proved in the Circuit Court and also produced and proved before me.

3 There was no objection by the public authorities, that is to say, the Fire Officer, the Garda Siochana or otherwise to the application and planning permission had already been obtained for the proposed new premises. Accordingly, only two issues arose on the hearing of the appeal before me, both under the provisions of Section 14 (1)(c)(ii) of the Act. Section 14 (1)(c) of the Act provides that the Applicant must show that the new premises are located on the site of the original premises or:

4 i "(ii) If they are not so located, that they are located, either, partly on that site or in the immediate vicinity and that the location of the new premises where they are rather than on the site of the original premises is unlikely of itself to have a materially adverse effect on the business carried on in any licensed premises in the neighbourhood."

5 The proposed new premises are not situate on the site of the demolished premises and the first question for decision is therefor whether or not they are situate in the immediate vicinity of the site of the demolished premises. The second question for decision which arises only if the first question is answered in the affirmative is whether or not the location of the premises situate where they are rather than on the site of the demolished premises is unlikely of itself to have a materially adverse effect on the business carried on in any licensed premises in the neighbourhood of the proposed new premises. I shall deal with the two questions in the order in which I have stated them.

6 The demolished premises were known as Bartley Dunnes and were situate in Stephen Street Lower beside the former Mercers Hospital, to the west of Grafton Street. The proposed new premises are No. 40 Dawson Street which also has an access at the rear to Anne's Lane and are situate opposite the Mansion House, to the east of Grafton Street. The distance by the shortest walking route from the site of the former Bartley Dunnes to the front door of the proposed new premises in Dawson Street is 472 yards: to the rear door in Anne's Lane is 397 yards: and as the crow flies from the nearest point of each site is 328 yards. These distances can easily be walked in four to five minutes, and are therefore of little account, to adapt the wording used in the Case of Leo Ward Applicant 101 I.L.T.R. 161. Moreover, these distances are within the range which the Courts have declared as being within the immediate vicinity in a number of previously decided cases. That is not the end of the matter however.

7 Premises which are quite near to demolished premises will not be in the immediate vicinity of such demolished premises if they are in social or economic areas which are incompatible with each other. The evidence established that in medieval times Stephen Street and Dawson Street were in the same ward and parish but no longer are. Since the 1920's Stephen Street is in the Royal Exchange ward and Dawson Street in the Mansion House ward. The boundary between these two wards, however, runs down the middle of Grafton Street and obviously does not prevent the west side of Grafton Street from being in the immediate vicinity of the east side of that street. The difference in wards is a factor to be taken into account but only a factor. So far as the parish is concerned both premises were in St. Peter's parish until 1707 when St. Anne's parish was formally instituted, including Dawson Street, taking that out of St. Peter's Parish. Again this is only a factor to be taken into account.

8 It is also the case that the Dublin Corporation Plan adopted in December 1991 zones Dawson Street as D and the site of Bartley Dunnes as H2. Such different zoning in modern times could well carry more weight than the difference in wards and parishes but I am satisfied that the probable main reason for the difference was to ensure the preservation of the facade of the former Mercers Hospital beside the former Bartley Dunnes whereas Bartley Dunnes itself had been demolished in May 1991 and therefore no longer existed when the Dublin City Plan was adopted in December 1991. Moreover, there is a conservation requirement regarding Dawson Street so that the difference in zoning is less than might appear at first glance and no more than another factor which is far from conclusive.

9 Having carefully considered all the extensive and interesting evidence on the topic of immediate vicinity, I have come to the following conclusions. The site of the demolished premises, Bartley Dunnes, is on the western extremity of, but is nevertheless within, the Grafton Street trading and social area. The fact that the Stephen Street area has become run down and is in need of redevelopment and indeed appears to be on the verge of redevelopment judging by planning applications to Dublin Corporation relating to it does not prevent it from being in the Grafton Street area. Cities and areas within cities need to be redeveloped from time to time as former...