Re Tivoli Cinema Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 24 January 1992
• Neutral Citation: 1992 WJSC-HC 1055
• Court: High Court
• Docket Number: Record No. 67/1990
• Date: 24 January 1992

TIVOLI CINEMA LTD

IN THE MATTER OF THE LICENSING ACTS 1833 TO 1988 THE COURTS(SUPPLEMENTAL PROVISIONS) ACT 1961SECTION 3 OF THE LICENSING (IRELAND) ACT 1902

AND IN THE MATTER OF AN APPLICATION BY TIVOLI CINEMALIMITED

APPLICANT

1992 WJSC-HC 1055

Record No. 67/1990

D.6976

THE HIGH COURT

ON APPEAL FROM/

THE CIRCUIT COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

Synopsis:

LICENSING ACTS

Licence

Premises - Suitability - Lease - Expiration - Extinguishment of licence - New premises - Planning code - Change of use - Immediate vicinity - Theatre - Adequate number of existing licences - Dublin Theatres Act, 1786, ss. 1, 2 - Licensing (Ireland) Act, 1902, ss. 2, 3 - Local Government (Planning and Development) Act, 1963, s. 26 - (Appeal from the Circuit Court - Lynch J . 24/1/92)

|IN re Tivoli Cinema Ltd.|

PLANNING

Premises

Use - Change - Relevance - Publican's licence - Application - Proofs - Suitability of premises - Existing permission for use of small area as wine bar - Application refused - (Appeal from the Circuit Court - Lynch J. - 24/1/92) [1992] 1 I.R. 412 1992 ILRM 52

|In re Tivoli Cinema Ltd.|

Citations:

LICENSING (IRL) ACT 1902 S3

INTOXICATING LIQUOR ACT 1927 S20

INTOXICATING LIQUOR ACT 1927 S21

DUBLIN THEATRES ACT 1786 S1

DUBLIN THEATRES ACT 1786 S2

ADAPTATION OF ENACTMENTS ACT 1931

CONSTITUTION (CONSEQUENTIAL PROVISIONS) ACT 1937

RSC O.60 r1

CONSTITUTION ART 34.3.1

CONSTITUTION ART 34.3.5

CONSTITUTION SAORSTAT EIREANN 1922

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

COURTS OF JUSTICE ACT 1924

COURTS OF JUSTICE ACT 1936

CONSTITUTION (AMDT NO 27) ACT 1936

MCDAID V SHEEHY 1991 ILRM 250

SHEERIN, STATE V KENNEDY 1966 IR 379

SLIGO CORPORATION V GILBRIDE 1929 IR 351

PHEASANTRY LTD, STATE V DONNELLY & AG 1982 ILRM 512

KELLY IRISH CONSTITUTION 2ED 271

FOYLE FISHERIES COMMISSION V GALLEN 1960 IJ 35

GREANEY V SCULLY 1981 ILRM 340

BROWNE, STATE V FERAN 1967 IR 147

AG, STATE V MANGAN 1961 IJ 17

PRENDERGAST V CARLOW CO COUNCIL 1990 ILRM 749

CONSTITUTION ART 50

CONSTITUTION ART 34.3.2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(11)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28(5)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

KITTERICK, APPLICATION OF 106 ILTR 105

DUBLIN CORPORATION V MULLIGAN UNREP FINLAY 6.5.80

ABENGLEN, STATE V DUBLIN CORPORATION 1984 IR 381 1982 ILRM 590

R V BOWMAN 1898 1 QB 663

R V MANN 1873 LR 8 QB 235

BOURKE, R V DUBLIN JUSTICES 1903 2 IR 429

R V BEESBY 1912 3 KBD 583

WALSHE, STATE V SHANNON 70 ILTR 151

IRISH CINEMAS LTD, IN RE 106 ILTR 17

INTOXICATING LIQUOR (NATIONAL CONCERT HALL) ACT 1983

POWER SUPERMARKET LTD 103 ILTR 137

GUINEY, IN RE 75 ILTR 110

REDDY, STATE V JOHNSON UNREP SUPREME 31.7.80 1980/18/3219

GORMAN, IN RE UNREP MCWILLIAM 31.7.1980

WRIGHT, R V CORK JUSTICES 1906 2 IR 347

WARD, IN RE 1966 IR 413, 101 ILTR 161

WALLS, IN RE 103 ILTR 113

MCGRATH, IN RE UNREP O'HANLON 4.8.87

CHARTON INVESTMENTS LTD UNREP O'HANLON 4.8.87

JAGGERS RESTAURANT LTD 1988 ILRM 553

AG, STATE V DURCAN 1964 IR 279

RIORDAN, IN RE 1981 ILRM 2

MORRISON V CUSTOMS & EXCISE 1927 NI 115

MURNANE V ADAMS 1910 2 IR 175

BEIRNE, R V LISTON 44 ILTR 82

BLACKBURN, R V DOWN JUSTICES 1905 2 IR 74

MACKLIN V GREACEN & CO LTD 1983 IR 61

INTOXICATING LIQUOR ACT 1943 S23

CARRICKHALL HOLDINGS LTD V DUBLIN CORPORATION UNREP MCWILLIAM 20.6.82

POWER SUPERMARKET LTD 1981 ILRM 270

1 Judgment of the Honourable Mr. Justice Lynchdelivered the 24th day of January 1992.

2 This is an appeal by some local inhabitants against an Order of the Dublin Circuit Court granting to the Applicants Tivoli Cinema Limited a Certificate under Section 3 of the Licensing (Ireland) Act 1902 in respect of portions of the Applicant's premises situate at Francis Street in the City of Dublin.

3 The application was initiated in the Circuit Court by a Notice to the appropriate parties dated the 14th of September 1990 entitled as above and in the following form:-

"Take Notice that Tivoli Cinema Limited having its registered office at 135/138 Francis Street in the City of Dublin will apply to the Circuit Court sitting at Circuit Court Number 16 Chancery Street in the City of Dublin at 10.30 a.m on Thursday the 18th day of October 1990 or at the first opportunity thereafter for a Certificate entitling and enabling the Applicant to receive an ordinary seven day on publican's licence for the sale of intoxicating liquors at premises known as"the Tivoli Theatre" comprising of the ground floor foyer the mezzanine floor and first floor theatre situated at Francis Street in the civil parish of St. Nicholas without in the city of Dublin as more particularly shown on the plans to be adduced at the hearing of this application and thereon surrounded with red verge lines."

4 Section 3 of the 1902 Act as amended by Section 23 of the Intoxicating Liquor Act 1943 provides as follows:-

"Where by, reason of the expiration of a lease, a licence for the sale of intoxicating liquors for consumption on or off the premises comprised in the lease is extinguished or surrendered, the licensing authority may, notwithstanding anything in this Act, grant a licence for suitable premises in the immediatevicinity of the premises to which the licence so extinguished or surrendered was attached."

5 The premises at 135/138 Francis Street including the whole of the ground floor thereof was built in or about the year 1935 as a cinema and was used as such until sometime in the 1960's when the cinema closed. The ownership and control of the Applicant Company was acquired by Mr. Anthony Byrne in 1981 and with it the premises No. 135/138 Francis Street. The Applicant re-opened the premises as a theatre about the year 1982 but then closed the premises again between 1986 and 1988 when a very large sum of money was expended in restoring and improving the premises and in converting the first floor thereof into an excellent theatre and thereafter providing a mezzanine floor with bartherein.

6 Since 1988 the Applicants have used the premises as a theatre and from about October 1990 with a fairly small bar on the mezzanine floor in respect of which the Applicants are the holders of a wine licence. The Applicants were and are anxious to obtain a licence which would enable them to sell beer and spirits as well as wine.

7 William Lowe and his wife Nancy Lowe owned the premises No. 7 Dean Street in the City of Dublin which is situate 472 yards as the crow flies and 510 yards by road from the Tivoli Theatre. Mr. and Mrs. Lowe owned No. 7 Dean Street since about the year 1955 from which time they carried on a licensed business with the benefit of an ordinary seven day publican's licence in the sole name of William Lowe. The said licence extended to the whole of the said premises No. 7 Dean Street which comprised three storeys but only the groundfloor thereof with an area of about 1,070 square feet was used for the sale of intoxicating liquors and could accommodate in or about 150 people at the one time. The middle floor was used for storage purposes and Mr. and Mrs. Lowe lived in the top floor.

8 Towards the end of the 1980's Dublin Corporation sought to acquire (inter alia) No. 7 Dean Street as part of the Development Plan for the area. Dublin Corporation therefore made a Compulsory Purchase Order in respect of No. 7 Dean Street (inter alia) and this Order was duly confirmed by the appropriate Government Minister in or about the month of December 1989 and Dublin Corporation accordingly became owners of the premises No. 7 Dean Street. William Lowe had duly renewed his ordinary seven day publican's licence at the September Licensing Sessions in 1989 although he and his wife had ceased to trade as a licensed premises at the end of June 1989.

9 Mr. and Mrs. Lowe took a Lease of No. 7 Dean Street for the period of five months from the 24th of January 1990 from Dublin Corporation but did not trade therein during that time. The said Lease expired on the 24th of June 1990 since when Mr. and Mrs. Lowe have had no further interest in the said premises and the said ordinary seven day publican's licence has been extinguished. By an Agreement dated the 10th of October 1990 the said William Lowe with the consent of his wife the said Nancy Lowe agreed to sell any rights he might have arising out of his having been the holder of the said licence to the Applicants and to co-operate with the Applicants in their application to the Circuit Court and on this appeal to the High Court. What the Applicants seek toacquire for the Tivoli Theatre is an ordinary seven day publican's licence in lieu of the licence now extinguished in relation to No. 7 Dean Street.

10 By Order dated the 13th of November 1990 the Circuit Court granteda:-

"Certificate under Section 3 of the Licensing (Ireland) Act 1902 entitling and enabling the Applicants to receive a full publican's licence for the premises known as the Tivoli Theatre comprising of the ground floor foyer the mezzanine floor and first floor theatre situate at Francis Street in the civil parish of St. Nicholas without in the City of Dublin being more particularly described and delineated on plans lodged in Court and therein surrounded by a red verge line. And the Court doth Order that the publican's licence in the name of William Lowe 7 Dean Street Dublin 8 be and the same is herebyextinguished."

11 By a Notice of Appeal dated the 22nd day of November 1990 the Objectors appealed to the High Court "from the entire of the Judgment givenherein".

12 The appeal came for hearing before me on the 14th, 15th and 16th of May 1991 and at the end of all the evidence and the submissions of Counsel on each side I raised a question as to the effect of Section 2 of the Statute of the Old Irish Parliament 26 George III Chapter 57 "An Act for Regulating the Stage in the City and County of Dublin1786"on the right to use the Tivoli Theatre as a theatre for gain or...