Re Whitesheet Inn Ltd

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 19 March 2003
• Neutral Citation: 2003 WJSC-HC 12069
• Date: 19 March 2003
• Court: High Court
• Docket Number: [2002 No. 300 CA]

2003 WJSC-HC 12069

THE HIGH COURT

2002/300 CA

WHITESHEET INN LTD, IN RE

IN THE MATTER OF THE LICENSING ACTS 1833 – 2000

AND

IN THE MATTER OF AN APPLICATION UNDER SECTION 15 OF THE INTOXICATING LIQUOR ACT 1960

WHITESHEET INN LIMITED

APPLICANT/APPELLANT

Citations:

INTOXICATING LIQUOR ACT 1960 S15

INTOXICATING LIQUOR ACT 2000 S18

INTOXICATING LIQUOR ACT 1960 S15(1)

INTOXICATING LIQUOR ACT 1960 S15(4)

INTOXICATING LIQUOR ACT 1960 S15(5)

INTOXICATING LIQUOR ACT 2000 S18(1)

INTOXICATING LIQUOR ACT 2000 S18(1)(ii)

INTOXICATING LIQUOR ACT 2000 S18(1)(iv)

CENTENNIAL PROPERTIES LTD, IN RE UNREP FINLAY 20.12.83 1984/4/1072

R (LESLIE) V MONAGHAN JUSTICES 1901 35 ILTR 35

LICENSING (IRL) ACT 1833 S4

INTOXICATING LIQUOR ACT 1960 S15(5)

JAGGERS RESTAURANT LTD V AHERNE 1988 IR 308

INTOXICATING LIQUOR ACT 1960 S14

INTOXICATING LIQUOR ACT 1962 S32

INTOXICATING LIQUOR ACT 1960 S14(1)

R V HALL 1822 1 B & C 123

RETAIL OF SPIRITUOUS LIQUORS 26 GEO 3 C 38 S8

LICENSING (IRL) ACT 1833 S3

R (GALLAGHER) V CHAIRMAN & JUSTICE OF CO TYRONE 1901 2 IR 497

R V EXETER (MAYOR), DIPSTALE'S CASE 1868 LR 4 QB 114

DONNE V MARTYR 1828 2 B & C 62

EYRE V NEW FOREST HIGHWAY BOARD 1892 56 JP 517

RICHMOND (SURREY) CORPORATION V ROBINSON 1955 1 AER 321

11 GEO 3 C 29

R V ECCLESFIELD (INHABITANTS) 1818 1 B & ALD 348

45 GEO 3 C 50 S62

Synopsis:

LICENSING

Objection to the grant of licence

Application for new licence - Definition of "inhabitant" - Status of objectors - Whether premises fit and convenient to be licensed - Whether number of existing licensed premises in locality adequate - Licensing (Ireland) Act, 1833 - Intoxicating Liquor Act, 1960 - Intoxicating Liquor Act, 2001 section 18 (2002/300 - Finnegan P - 19/03/2003)

In re Whitesheet Inn Ltd - [2003] 2 IR 156 - [2003] 2 ILRM 177

The applicant had sought a licence for a premises pursuant to the Intoxicating Liquor Act, 2001. There were a number of objectors opposed to the application including owners of nearby licensed premises. The application was unsuccessful in the Circuit Court and the applicant appealed. A preliminary issue arose to the status of some of the objectors as it was alleged that they were not 'inhabitants' as set out in relevant legislation. It was contended on behalf of the objectors that the premises was unfit to be licensed and that the area was already served by an adequate number of licensed premises.

Held by the President of the High Court in refusing the application. The premises was not unfit nor inconvenient to be licensed. However the evidence tendered in relation to the volumes of trade carried out by other licensed premises in the area demonstrated that the number of existing licensed premises in the area was adequate.

1 Finnegan P. delivered on the 19th March 2003

2 Whitesheet Inn Limited ("the company") is the owner of premises the ground floor of premises 11 Upper Bagget Street not in the Parish of Saint Mary as described in the Application but in the Parish of St. Peter and City of Dublin ("the premises"). By Application dated the 23 ^rd February 2001 the company applied to the Circuit Court for a declaration pursuant to the Intoxicating Liquor Act 1960section 15 that the premises as proposed to be altered would be fit and convenient to be licensed pursuant to the Intoxicating Liquor Act 2001 section 18.

3 The Intoxicating Liquor Act 1960section 15 insofar as relevant provides as follows —

4 15.—(1) Where a person proposes to acquire, construct or alter premises (not being premises in relation to which an application may be brought under section 8 of the Intoxicating Liquor Act, 1953) and to apply to the Circuit Court or the District Court, as may be appropriate, for the grant of a certificate entitling him to receive a licence in respect of the premises, he may apply to that Court for a declaration that the premises would be fit and convenient to be so licensed, and, if he shows to the satisfaction of the Court—

5 a ( a) that, if the acquisition, construction or alteration, as the case may be, of the premises were then completed and the application for the grant of the 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, and

6 b ( b) in any case where the applicant proposes to construct premises, that he is the holder of the lowest estate or tenancy in the site on which it is proposed to construct the premises or, if he is not such holder, that the holder thereof has agreed to convey the lowest estate or tenancy in the site to the applicant if and when a declaration under this section is made in relation to the site,

7 the Court, if it is so satisfied, may grant the application on such terms as the Court may think fit.

8 (4) The application shall be accompanied by a plan of the premises.

9 (5) In relation to premises the subject of an application under subsection (1) of this section, any person who would be entitled to object to an application for the grant of a certificate entitling the applicant to receive a licence in respect of the premises shall be entitled to object in like manner to an application under subsection (1) of this section.

10 The Intoxicating Liquor Act 2000section 18 insofar as relevant provides as follows —

11 18.—(1) Where a person (in this section referred to as "the applicant") duly gives notice of his or her intention to apply for a licence (in this section referred to as a "new licence") in respect of premises to which a full licence was never attached and, at the proceedings in relation to the application, the applicant shows to the satisfaction of the Court —

12 a (a) a licence (in this section referred to as "an existing licence") is in force in respect of other premises,

13 b (b) either—

14 (i) the applicant is the holder of the existing licence, or

15 (ii) the holder of the existing licence will consent to its extinguishment if and when a new licence is granted to the applicant under this section,

16 and

17 c (c) the existing licence is a full licence or a licence of the same character as the new licence,

18 the Court shall, notwithstanding anything contained in the Act of 1902, cause a certificate to be given to the applicant entitling him or her to receive a licence in respect of the new premises, unless the Court prohibits the issuing of the licence on the ground of—

19 (i) the character, misconduct or unfitness of the applicant,

20 (ii) the unfitness or inconvenience of the new premises,

21 (iii) their unsuitability for the needs of persons residing in the neighbourhood, or

22 (iv) the adequacy of the existing number of licensed premises of the same character in the neighbourhood.

23 (2) On the grant of the new licence -

24 a (a) the existing licence shall be extinguished;

25 b (b) any conviction which became recorded on the existing licence under section 25 of the Act of 1927 when he applicant was the holder of the licence and which is still recorded thereon at the time of the grant of the new licence by the Revenue Commissioners shall be deemed to be recorded on the new licence under that section and to have been so recorded on the date when it became recorded on the existing licence;

26 c (c) the premises to which the existing licence was attached shall, for the purposes of the Act of 1902, be deemed never to have been licensed.

27 (3) Sections 15 (declaration as to fitness and convenience of proposed licensed premises) and 17 (certification of premises the subject of such a declaration) of the Act of 1960 shall have effect, with any necessary modifications, in relation to premises which a person proposes to acquire, construct or alter and in respect of which the person proposes to apply under this section to the Circuit Court or the District Court, as may be appropriate, for the grant of a certificate entitling him or her to receive a licence.

28 The company's application failed before the Circuit Court and the matter comes before me by way of appeal. On the appeal the following objectors appeared before me:-

29 1. Mr. Hugh Courtney of Smyth's Licensed Premises, 10 Haddington Road, Dublin 4

30 2. Frank Quinn and Michael Quinn of The Den Licensed Premises, Lansdowne Hotel, Pembroke Road, Dublin 4, Paddy Flaherty's Licensed Premises, 51 Haddington Road, Dublin 4 and The Waterloo Licensed Premises, 36 Upper Baggot Street, Dublin 4.

31 All four of these premises are situated in the Parish of St. Peter.

32 The Applicant satisfied me on the formal requirements of section 18(1). The objectors opposed the granting of a certificate and led evidence relevant to the grounds set out in section 18(1) at (ii) and (iv) - the unfitness or inconvenience of the new premises and the adequacy of the existing number of licensed premises of the same character in the neighbourhood. While evidence was led as to the character of one of the directors of the company related to his conduct in relation to an action by the occupier of the basemen of the premises the conduct alleged if it were to be accepted by me does not reflect on the company to any or any sufficient extent to justify me refusing a certificate on the ground of the company's character and it is the company's character to which I must have regard: see Re. Centennial Properties Limited The High Court unreported Finlay P. 20 ^th December 1983 and R (Leslie) v Monaghan Justices 1901 35 ILTR 35.

33 A preliminary issue arose as follows. The Applicant referred to the Licensing (Ireland) Act 1833 section 4 as amended as restricting those persons entitled to object to the grant of a certificate. Section 4 provides as follows-

34 IV. And be it further enacted, That it shall and may be lawful for...