Kingston v Licensing Act

JurisdictionIreland
JudgeMr. Justice Roderick Murphy
Judgment Date21 March 2006
Neutral Citation[2005] IEHC 444,[2006] IEHC 93
CourtHigh Court
Date21 March 2006

[2005] IEHC 444

THE HIGH COURT

451 CA/2005
KINGSTON, IN RE
ON CIRCUIT
CORK CIRCUIT COUNTY OF CORK
IN THE MATTER OF THE LICENSING ACTS 1833 TO 2004

AND

AND

IN THE MATTER OF THE LICENSING (IRELAND) ACT, 2002, SECTION 6

AND

IN THE MATTER OF THE INTOXICATING LIQUOR ACT, 1960, SECTION 15

AND

IN THE MATTER OF AN APPLICATION BY PETER KINGSTON

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

LICENSING (IRELAND) ACT 1902 S6

CENTENNIAL PROPERTIES LTD, RE UNREP CIRC APP FINALY 20.12.1983 1984/4/1072

CHARIOT INNS LTD, RE UNREP CIRC APP JOHNSON 12.4.1991 1991/8/1738

LYONS, RE UNREP HIGH COURT O CAOIMH 30.7.2004 2004/28/6594

WHITESHEET INN LTD, IN RE 2003 2 IR 156 2003 2 ILRM 177

R (LESLIE) v MONAGHAN 1901 35 ILTR 35

CUMMINS, RE 1964 IR 67

INTOXICATING LIQUOR ACT 2000 S18

LICENSING (IRELAND) ACT 1833 S4

R (MARSHALL) v TYRONE 1895 2 IR 174

POWER SUPERMARKETS, RE 1988 IR 206

R (COLLINS) v DONEGAL 1903 2 IR 533

THOMAS O'BRIEN, RE 1974 108 ILTR 141

INTOXICATING LIQUOR ACT 1960 S15(5)

COURTS OF JUSTICE ACT 1936 S38

O'CONNOR v FAHY 1945 IR 50

OSHAWA, RE 1992 2 IR 425

TIVOLI CINEMA, RE 1992 1 IR 412 1992 ILRM 522

NUTRGROVE INNS LTD, RE UNREP CIRC APP BARRON 19.7.1984 1984/8/2569

WOODS LIQUOR LICENSING LAWS OF IRELAND 274

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1988

CROWLEY, RE 1964 IR 106

INTOXICATING LIQUOR ACT 1927 S28(1)

LICENSING (COMBATING DRUG ABUSE) ACT 1997 S2

LICENSING (COMBATING DRUG ABUSE) ACT 1997 S3(3)

PHEASANTRY LTD, STATE v DONNELLY & AG 1982 ILRM 512

INTOXICATING LIQUOR ACT 1960 S16

LICENSING

extension

Existing licence - Application for declaration that extension to existing licensed premises would be fit and convenient to be licensed - Application refused in Circuit Court - Unfitness of premises - Whether premises inconvenient - Whether same principles apply to application for licence or renewal of licence as to declaration in relation to existing licensed premises - Whether court can have regard to future apprehensions of gardaí regarding public order - Whether court can have regard to number of public houses in neighbourhood - Appeal granted - (2005/451CA - Murphy J - 21/12/2005) [2005] IEHC 444

In re Kingston

Facts: the Circuit Court refused to grant to the applicant a declaration pursuant to section 15 of the Intoxicating Liquor Act 1960 that an extension to his premises were fit and convenient to be licensed for the sale of intoxicating liquor on the premises. The applicant appealed to the High Court. The objection to the grant of the declaration came from the Gardai who submitted, inter alia, that they had apprehensions that public order would be adversely affected into the future and that there were already sufficient similar premises in the vicinity,

Held by Murphy J in granting a declaration, pursuant to section 15 of the Act of 1960, that the premises were fit and convenient to be licensed that there was no constitutional right to a liquor license or a renewal thereof. They were only rights granted by statute, subject to limitations and conditions prescribed thereby. The same principles applied to the grant of a declaration that premises were fit and convenient to be licensed pursuant to section 15 of the Intoxicating Liquor Act 1960. In that respect, "unfitness" had to do with the premises themselves, whereas "inconvenience" included the location of the premises. As the criterion of adequacy was not relevant to an application for a declaration under section 15 of the Act of 1960, the court was entitled, pursuant to section 4 of the Licensing (Ireland) Act 1833, to have regard to the number of public houses in the neighbourhood but not the number of extensions for night clubs. Moreover, the court was not entitled to have regard to the future apprehensions of the Gardai insofar as public order was concerned.

Reporter: P. C.

1

Judgment of Mr. Justice Roderick Murphy dated the 21st day of December, 2005.

1. Outline
2

2 1.1 This is an application pursuant to s. 15 of the Intoxicating Liquor Act, 1960 for a declaration that an extension to the premises known as the Classic Bar, situate at 1/3 South Main Street in the city of Cork ("the premises") would be fit and convenient to be so licensed. The capacity would be increased from 150 to 750. The applicant, Peter Kingston, was one of several partners developing the premises.

3

3 1.2 An applicant must show to the satisfaction of the court that if the acquisition, construction or alteration as the case may be of premises were then completed and the application for the grant of a certificate aforesaid were then made and no objection on the ground of the character, misconduct or unfitness of the applicant were made on the hearing of the application, it would be proper, having regard to the provisions of the Licensing Acts, 1833 to 1960, to grant the application.

4

The court, if it is so satisfied, may make a declaration on such terms as the court may think fit. Such declaration is an approval in principle to the granting of a new licence for a premises and is the application for a certificate leading to a licence. The declaration remains in force for two years from the grant of the application or for such longer period as the court granting the application may in any particular case think proper to provide.

5

4 1.3 The matter arises in relation to an appeal from an order of Judge Moran, Judge of the Circuit Court, refusing to extend an existing licence attaching to the premises. to be used primarily as a night club.

6

Full planning permission and fire safety certificates had already been obtained from the planning and fire authorities.

7

5 1.4 Objection was raised by Sergeant Alan Cronin of the Bridewell Garda Station, the relevant garda station, on the following grounds:

8

· - an objection to a night club on South Main Street;

9

· - the unfitness of the new premises;

10

· - the inconvenience of the new premises, and

11

· - the adequacy of the existing number of licensed premises of the same character in the neighbourhood.

12

6 1.5 Objections had also been raised by the Augustinian Fathers whose friary is nearby and by the fire and ambulance service. Agreement had been reached between the applicant, the lessor and the Augustinian Fathers. The fire services were satisfied with the planning and the fire chief had no objection to the proposed declaration. The ambulance service had some general reservations.

2. Circuit Court decision
13

Judge Moran refused the application on the basis that the premises were not fit to be licensed and that they were inconvenient. He referred to the application of Centennial Properties Limited, High Court, Finlay J. 20 th December, 1983 and distinguished the application of Chariot Inns Limited, High Court, 12 th April, 1991, Johnson J.

14

The learned Circuit Court judge also held that the number of licensed premises were adequate and referred the application of Colum Lyons, High Court decision of 30 th July, 2004, Ó Caoimh J.

15

The Circuit Court decision was based, inter alia, on the evidence of Sergeant Cronin that the premises were too large to inspect; the level of intoxication in the city was too high; there was a problem regarding the fire door between the subject and the adjoining premises (Captain Americas and Suas); the licensee could not have control of the premises; the premises was on a main artery of the city and there were 41 existing licensed premises in the area.

16

Inspector Cadogan had given evidence of the situation in the city in relation to public order.

17

On those grounds the Circuit Court judge decided that the premises were not fit to be licensed.

3. Evidence
18

The court has heard evidence from the following witnesses:

19

2 3.1. Tony Leonard, the landlord/lessor of the applicant and his partners gave evidence of his extensive holding which included the Classic Bar, the subject of the application, as well as Captain Americas which adjoins the premises and shares a common staircase with access through a fire door from the premises. Mr. Leonard referred to the undertaking of Mr. O'Mahoney on his behalf with the adjoining premises

20

The holding was the former Queen's old Castle Shopping Centre. The Classic Bar was a ground floor premises with two vacant overhead floors, which was being renovated.

21

The applicant and his partners, pursuant to a memorandum of agreement made 11 th April, 2005, were entitled, in respect of the premises, to a 25 year lease. They were successful and experienced businessmen.

22

The proposed lease annexed to the memorandum of agreement provided for the devise to the applicant and his partners, as tenants, the premises situate and known as 1, 2 and 3 South Main Street in the City of Cork and with certain fittings together with the easements and rights to hold the same excepting and receiving as provided therein unto the tenant for a term of 25 years subject to the rent as provided, for use as a licensed bar and nightclub.

23

He described the fire door. In cross examination the garda objection was put to him. He had attempted to meet each of the objections. He said that the premises would be owner occupied and would be of a high standard. He, together with the applicant, had met the objections of the Augustinian Fathers.

24

3 3.2. Chris Whyte is a civil engineer and urban planner and a director of Cork Docklands and Cork Historic Centre. In the context of the strategy of the former and the action plan for the latter he referred to the 12% growth in population in the city centre; the 50% growth in employment in the city centre. He gave evidence that there was since 2001, an increase of 7,000 students in UCC and CIT and a 300% increase in housing development in the city...

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1 cases
  • In the Application of Galfer Filling Station Ltd
    • Ireland
    • Court of Appeal (Ireland)
    • 24 July 2023
    ...that the notice party had either acted unreasonably or acted in bad faith in any respect. The decision in Kingston v Licencing Act [2006] IEHC 93 (Murphy J.) suggests that taking account of the nature of the application and the statutory process to be followed and the obligations of the Gar......

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