Galfer Filling Station Ltd v Licensing Acts

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 08 July 2020
• Neutral Citation: [2020] IEHC 478
• Court: High Court
• Docket Number: [2019 No. 859 SS]
• Date: 08 July 2020

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

GALFER FILLING STATION LIMITED

APPLICANT

AND

SUPERINTENDENT PATRICK O'CALLAGHAN

NOTICE PARTY

[2020] IEHC 478

Meenan

[2019 No. 859 SS]

THE HIGH COURT

JUDGMENT of Mr. Justice Meenan delivered on the 8th day of July, 2020

Introduction

1 This is a consultative case stated which concerns an application pursuant to s. 2(1) of the Licensing (Ireland) Act, 1902 (as amended) (the Act of 1902) to revive wine, beer and spirits off licences attaching to a Spar premises at Cloghan, County Offaly (the premises). The questions posed in the consultative case stated are the following: -

(1) Is the franchise agreement sufficient estate or interest in the premises to allow the District Judge to grant the application to revive the licences in the name of the franchisee/applicant; and

(2) Is lawful occupation as set out in the franchise agreement sufficient to entitle the franchisee/applicant to apply for a licence in its sole name.

2 All necessary statutory proofs were adduced in evidence before the District Court. There was no objection to the application by the statutory notice party, who is the notice party in this Court, or any other person.

Franchise Agreement (The Agreement)

3 Whatever estate or interest that the applicant has in the premises arises from the agreement.

4 The relevant terms of the agreement are as follows: -

(i) The applicant has a right to use the premises for the purpose of carrying on the business specified in the first schedule therein;

(ii) The applicant agreed not to assign, transfer or in any way deal with the benefit of the franchise agreement without the written consent of the licensor (Triode Newhill Cloghan Limited);

(iii) The applicant agreed to promptly pay and discharge all outgoings (including electricity bills, telephone bills, rates bills, gas bills);

(iv) The applicant agreed to discharge the cost of all insurances;

(v) For a period of one year after the determination of the agreement, the applicant agreed not to be engaged either directly or indirectly in any business in the field of the sale of groceries or any allied business within a radius of five miles of the premises; and

(vi) The applicant agreed to acknowledge (in writing) at all times upon being requested to do so by the licensor, that he has no estate, rights or entitlements whatsoever in the premises… which are the sole and exclusive properties of the licensor.

5 The agreement further provided that it would cease on the happening of certain events: -

(i) The effluxion of ten years from 27 May 2018;

(ii) In the event of the applicant failing to observe and perform any of the stipulations in the agreement and if they “shall not comply with the said stipulations and agreements within fourteen days of receiving written notice by the licensor of such failure”.

6 It is clear from the agreement that the applicant did have an interest in the premises, but, the question is, is such interest sufficient for a grant of licence under the Act of 1902? To answer this question, it is necessary to consider a number of legal authorities.

Legal authorities

7 Mr. Feichín McDonagh SC, on behalf of the applicant, referred the Court to a number of authorities. The following passage from the judgment of Holmes J. in The Queen (at the prosecution of Ellen Murphy) v. Recorder and Justices of Cork [1895] 2 I.R. 104 states the general principle: -

“It is, I believe, now firmly settled as a cardinal principle of the licensing law that the holder of a license must have such an estate or interest in the licensed premises as entitles him to occupy them. The Vice-Chancellor in Brennan v. Dorney (1) gives a singularly clear and complete analysis of this branch of the law: and the first three of the four propositions with which, he concludes have never, as far as I am aware, been questioned. It is there laid down that no right to the benefit of a publican's license can exist apart from the ownership and possession of the licensed premises, and that the rightful possession of the licensed premises carries with it the right of transfer or renewal, subject to the statutory requirements applicable to such cases.”

8 Though Holmes J. refers to “ownership and possession,” it appears to be the case that the estate or interest in a licenced premises required for a licence is an entitlement to occupy the premises.

9 More recently, this issue was considered by the Court of Appeal in Triode Newhill LHP Ltd v. Superintendent Alan Murray [2018] IECA 356. This was an appeal against an Order of the High Court in answer to a consultative case stated by a District Judge arising from an application for a transfer of two wine, beer and spirit off licences. The question posed was: -

“Does a franchise agreement between the applicant for an ad interim transfer and its...