Re Hannigan Holdings Ltd

JurisdictionIreland
JudgeJustice Francis D Murphy
Judgment Date13 April 2000
Neutral Citation[2000] IESC 9
CourtSupreme Court
Docket Number[S.C. No. 261 of 1999]
Date13 April 2000

[2000] IESC 9

THE SUPREME COURT

Denham J

Murphy J

McGuinness J

261/99
HANNIGAN HOLDINGS LTD, IN RE
IN THE MATTER OF THE COURTS OF JUSTICE ACT, 1936, SECTION 38 (3)

AND

IN THE MATTER OF THE LICENSING ACTS, 1833–1937

AND

AND

IN THE MATTER OF THE INTOXICATING LIQUOR ACT, 1927, SECTION 12

AND

IN THE MATTER OF THE LICENSING (IRELAND) ACT, 1902, SECTION 6 (AS AMENDED BY THE INTOXICATING LIQUOR ACT, 1960, SECTION 4)

AND

IN THE MATTER OF AN APPLICATION BY HANNIGAN HOLDINGS LIMITED
APPLICANT/APPELLANT

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

INTOXICATING LIQUOR ACT 1927 S12

COURTS OF JUSTICE ACT 1936 S38(3)

LICENSING (IRL) ACT 1902 S6

INTOXICATING LIQUOR ACT 1960 S4

INTOXICATING LIQUOR ACT 1960 S24

LICENSING ACTS 1833–1995

KENNEDY, R V JUSTICES OF ANTRIM 1903 2 IR 671

BLACKBURNE, R V JUSTICES OF COUNTY DOWN 1905 2 IR 74

OSHAWA LTD, IN RE 1992 2 IR 425

MOYLAN, IN RE 1947 IJ 3

BRANNIGAN, IN RE 1947 IJ 1

O'MALLEY, STATE V JUDGE OF DUBLIN CIRCUIT COURT (ORMOND HOTEL CASE) 1934 68 ILTR 79

LIGHTBOUND V HIGHER BEBINGTON LOCAL BOARD 1885 16 QBD 577

MCELVANEY, IN RE UNREP O'HIGGINS 2.4.1974

INTOXICATING LIQUOR ACT 1960 S15

GUARDIANS OF THE POOR OF THE WEST DERBY UNION V METROPOLITAN LIFE ASSURANCE SOCIETY 1897 AC 647

JENNINGS V KELLY 1940 AC 206

INTOXICATING LIQUOR ACT (NORTHERN IRELAND) 1923 S9

Synopsis

Licensing

Licensing; consultative case stated; applicant seeking a certificate entitling them to receive a new seven day publicans on licence in respect of existing licensed premises and a new extension adjoining them pursuant to s.6, Licensing (Ireland ) Act, 1902 as amended by s.4, Intoxicating Liquor Act, 1960; s.6 permits a new licence to be granted to premises "attached to or adjoining" premises formerly licensed provided that such new licenses are granted only in order to render the said premises more suitable for the business carried on therein.

Held: The words "attached to or adjoining" should be read disjunctively; the words "attached to or adjoining" should be construed in the context of the proviso and given a special meaning and construction; a licence granted pursuant to s.6 must relate to premises capable of being licensed as one unit.

In re Hannigan Holdings Limited - Supreme Court: Denham J., Murphy J., McGuinness J. - 13/04/2000 - [2000] 4 IR 369 - [2000] 2 ILRM 438

The applicant had sought a publican's licence in respect of premises a portion of which was presently licensed and another portion which was unlicensed. The application was opposed by a number of objectors. In the Circuit Court the application was refused and this refusal was appealed to the High Court. In the High Court Kearns J posed a number of questions in the form of a consultative case stated for the Supreme Court. The main issue concerned whether the entire premises must form a single entity in order for the new licence to issue. Murphy J in delivering the opinion of the court held that the entire premises must be capable of forming one single unit for the purposes of licensing. In addition the adjoining premises must be such that the premises currently licensed was rendered more suitable for the carrying out of business. The matter as answered would now fall to be determined by the High Court.

1

Justice Francis D Murphy delivered the 13th day of April, 2000 [NEW Diss]

2

This matter comes before the Court by way of a Consultative Case stated by Kearns J pursuant to the provisions of s.38 (3) of the Courts of Justice Act, 1936. The questions raised by the Case concern the proper interpretation of the Licensing (Ireland) Act, 1902, s. 6 as amended by the Intoxicating Liquor Act, 1960, s.4.

3

The history of the matter is set out fully in the case as stated but the material facts may be summarised as follows. Hannigan Holdings Ltd (Hannigan Holdings) applied to the Circuit Court at Naas by notice dated the 8th day of April, 1988, pursuant to s.6 of the Act of 1902 for, inter alia, a certificate entitling them to receive a new seven day publicans on licence in respect of certain premises therein described as comprising:-

4

a "(a) Existing licensed premises known as the Rye Vale Tavern situate at; No: 3, Pound Street, in the Civil Parish of Leixlip, Barony of North Salt, Townland of Leixlip and County of Kildare.

5

(b) A new extension adjoining the said Licensed Premises and situate at No: 4 and No:5, Pound Street, in the said Civil Parish, Barony, Townland and County as aforesaid."

6

The application was opposed by a number of residential objectors, certain licensed vintners and the Garda Siochána. The application was refused by His Honour Judge Raymond Groarke for the reasons set out in a reserved judgment dated the 14th day of December, 1998. The order and judgment of the learned Circuit Court Judge was appealed to the High Court and in the course of hearing that appeal Kearns J decided to state a Consultative Case and to pose for the consideration of this Court the questions raised therein.

7

The premises in respect of which the new licence is sought are delineated on the plans annexed to the Case Stated. They comprise the premises on the said plans coloured blue (the blue buildings) and the premises coloured yellow (the yellow buildings). An underground tunnel connects the blue buildings to the yellow buildings. The tunnel is identified on the ground floor plan by two red broken lines. The blue buildings represent the original licensed premises together with a substantial extension to the rear which was constructed during the year 1990/1991 and licensed by the Circuit Court as so extended in that year pursuant to s.6 of the said Act of 1902. In October, 1996, planning permission was obtained by Hannigan Holdings to replace derelict buildings with what are now the yellow buildings. A tunnel was then constructed from the blue buildings to the yellow buildings and planning permission obtained for that development. The Case Stated records that the tunnel was constructed in pursuance of legal advice. In my view that is not a material consideration.

8

What is apparent from the plans exhibited in the Case Stated, and more particularly from an aerial photograph handed into Court for the purposes of illustration, is that the blue buildings are separated from the yellow buildings by a roadway leading to a substantial private car park to and from which there is no other vehicular access or egress. The roadway separating the premises is of considerable width. It permits motor cars to be parked perpendicular to the blue buildings and yet allows ready access to the car park. The nature, purpose and effect of the relationship between the blue buildings and the yellow buildings and the connection between them is set out in three paragraphs of the Case Stated as follows:-

9

2 " 4 The Tunnel is approximately 7 feet wide and 130 feet long underground. However it is conceded that the Tunnel is not designed or intended or suitable for use by the public to move underground between the Blue and Yellow buildings and its function has become or is intended as an additional cellar storage space to the pre-existing cellar of the Blue Buildings and also as a service passageway for goods delivery and it would be used by Hannigan Holdings staff only.

10

5 It is the expressed intention of Hannigan Holdings to move the disco/nightclub business which is presently carried on in the " Existing Function Area" in the front section of the ground floor of the Blue Buildings over to the Yellow Building and to cease the disco/nightclub business in the Blue Building in accordance with condition 1 of the Second Schedule to the Planning Permission Register 95/1528. Thereafter it is the expressed intention of Hannigan Holdings to change the business in the " Existing Function Area" in the front section of the ground floor of the Blue Building into a more formal dining business with bar facilities. These events will not occur unless Hannigan Holdings succeeds in this Licensing Application.

11

7 It was admitted in evidence before the High Court that an ordinary member of the public who was drinking in the rear ground floor section of the Blue Building and who wanted to attend the proposed new disco in the Yellow Building would have to walk out of the Blue Building into the open air, cross the footpaths and entrance/exit driveway of the car park and then enter the Yellow Building for that purpose."

12

In these circumstances the learned High Court Judge posed nine questions; eight of which related directly to the phrase " premises attached to or adjoining premises licensed for the sale of intoxicating liquors" (and the component parts thereof) as it occurs in s.6 of the Act of 1902 as amended by the Act of 1960 s.24. That Section (as amended) reads as follows:-

" Nothing in this Act shall operate to prevent the granting of new licenses where the licensing authority thinks fit, to premises attached to or adjoining premises licensed for the sale of intoxicating liquors at any time during the period of five years immediately before the day on which notice of application for the grant of a certificate entitling the holder thereof to receive any such new licenses given pursuant to Rules of Court, to the appropriate County Registrar or to the appropriate District Court Clerk as the case may be, provided always that such new licenses as last herein before mentioned shall only be granted in order to render the said licensed premises more suitable for the business carried on therein."

13

The Gardaí had opposed the application for the new licence in the Circuit Court on the ground that the yellow buildings were not premises " attached to or adjoining premises licensed for the sale of intoxicating liquor" and also for reasons connected with the manner in which the licensee carried on his business...

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