The Licensing Acts, 1833 - 2000… and an application of Colum Lyons

• Jurisdiction: Ireland
• Judge: Mr. Justice Andrias Ó Caoimh
• Judgment Date: 30 July 2004
• Neutral Citation: [2004] IEHC 301
• Docket Number: 2004 8 CA
• Court: High Court
• Date: 30 July 2004

[2004] IEHC 301

The Circuit Court

2004 8 CA

HC 301/04

LYONS, RE

Cork Circuit County of Cork

IN THE MATTER OF THE LICENSING ACTS, 1833 – 2000 AND IN THE MATTER OF SECTION 15 OF THE INTOXICATING LIQUOR ACT, 1960

AND

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 AND IN THE MATTER OF SECTION 18 OF THE INTOXICATING LIQUOR ACT, 2000 AND IN THE MATTER OF AN APPLICATION OF COLUM LYONS AND IN THE MATTER OF SECTION 16(1) OF THE INTOXICATING LIQUOR ACT, 1960

Citations:

INTOXICATING LIQUOR ACT 1960 S16(1)

INTOXICATING LIQUOR ACT 2000 S18(1)(iv)

INTOXICATING LIQUOR ACT 2000 S18(1)(iv)

INTOXICATING LIQUOR ACT 2000 S18

INTOXICATING LIQUOR ACT 1960 S13

INTOXICATING LIQUOR ACT 1960 S13(2)(e)

SPIRITS & LICENCES (IRL) ACT 1833

INTOXICATING LIQUOR ACT 2000 S1(2)

INTOXICATING LIQUOR ACT 2000 S1(2)

LICENSING (IRL) ACT 1902 S18

LICENSING (IRL) ACT 1902 S18(2)(c)

LICENSING (IRL) ACT 1902 S3

LICENSING (IRL) ACT 1902 S4

INOTXICATING LIQUOR ACT 1960 S17(1)(c)(ii)

INOTXICATING LIQUOR ACT 1960 S17

INOTXICATING LIQUOR ACT 1902 S2(1)

INOTXICATING LIQUOR ACT 1902 S6

INTERPRETATION ACT 1937 S21

INTERPRETATION ACT 1937 S21(b)

INTERPRETATION ACT 1937 S21(c)

MACKLIN V GREACEN & CO LTD 1983 IR 61

GUINEY, IN RE 75 ILTR 110

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

R (LESLIE) V MONAGHAN JUSTICES 1901 35 ILTR 35

LICENSING (IRL) ACT 1833 S4

INTOXICATING LIQUOR ACT 2000 S18(4)

INTOXICATING LIQUOR ACT 2000 S18(1)

Abstract:

Licensing - Declaration - Intoxicating Liquor Licence - Whether the premises was one to which a full license was never attached - Licensing Acts 1833 to 2000 - Intoxicating Liquor Act, 1960

The applicant sought a declaration that certain premises, when acquired and altered in accordance with the plans accompanying the application, would be fit and convenient to be licensed as a public house. The subject premises had the benefit of a full license in the past but that license was extinguished upon the grant of a new licence. The applicant brought his application pursuant to section 13 of the 1960 Act, which provided at s.13(2)(e) that upon the grant of a new licence, the existing premises shall for the purposes of the 1902 Act be deemed never to have been licensed. Accordingly, the applicant submitted that the premises was one, which was not licensed. The Attorney General opposed the application on the basis that pursuant to s.18(1)(ii) of the Intoxicating Liquor Act, 2000 it would be inconvenient pursuant to s.18(1)(iv) of the said Act on the basis of the adequacy of the existing number of licensed premises of the same character in the neighbourhood and on the ground that those premises were already licensed under the relevant licensing Acts.

Held by O Caoimh J. in refusing the application and allowing the appeal:

1. That at the time of the application section 13 of the Licensing Act 1960 stood repealed and accordingly the deeming provision in question no longer stood. Therefore, the applicant was not entitled to bring his application within the terms of section 18 of the 2000 Act, which required that a full licence never attached to the premises.

2. That there existed an adequacy of existing licensed premises of the same character in the neighbourhood. Accordingly, on that basis alone the applicant was not entitled to the certificate sought.

Reporter: L.O’S.

1 Mr. Justice Andrias Ó Caoimh delivered the 30th July, 2004 .

2 This matter comes on appeal from the Circuit Court in circumstances where the applicant proposes to acquire and alter premises known as No. 126 Oliver Plunkett Street, Cork. The applicant seeks a declaration that the premises in question, when acquired and altered in accordance with plans accompanying the application, would be fit and convenient to be licensed as a public house. In this context the applicant seeks a declaration pursuant to s. 16(1) of the Intoxicating Liquor Act, 1960that such premises would be structurally adapted for use as a restaurant/refreshment house or other place for the supply of substantial meals to the public. The application is contested by the Attorney General on the basis that pursuant to s. 18(1)(ii) of the Intoxicating Liquor Act, 2000it would be inconvenient pursuant to s. 18(1)(iv) of the said Act on the basis of the adequacy of the existing number of licensed premises of the same character in the neighbourhood and (3) on the grounds that these premises were already licensed under the relevant licensing Acts. At the outset of the application this court was given details in relation to the proposal to develop the subject premises. The development of the premises in question involves a slight change of the blueprint of the pre-existing premises. However, it is to be noted that the objection in relation to the subject premises is more related to its existence as a licensed premises than to any particular aspect of the premises itself. It was made clear in the hearing before me that there is no objection in this case on the basis of the character of the applicant, Mr. Lyons, the essential objection in this case related to the alleged unfitness or inconvenience of a new premises having regard to the number of previously licensed premises in the neighbourhood. In this regard it was submitted that the gradaí will encounter greater difficulty in relation to maintaining public order in the street in question. In the circumstances of a new public house being established there, it is conceded that the reasonable possibility of exercising police control over a public house is a matter which may be taken into consideration. On the hearing of this appeal evidence was given in relation to a proliferation of public houses in the area including establishments described as super-pubs of very large capacity, some of these having been licensed in the relatively recent past. Evidence was given in relation to premises in the immediate locality having capacity for over four thousand patrons. While there was some discussion as to what premises might be considered to be relevant in the context of the consideration of the subject premises, it is clear in any event that in the area of Oliver Plunkett Street and the adjacent streets between it and the South Mall, and it and Manor Street, a large number of public houses exist. In this regard it was submitted that there is an adequacy of existing premises in the area. It is conceded that a number of matters may be taken into account in consideration of this particular matter. These were addressed by Teevan J. In Re Slattery (Unreported, High Court, 24 ^th July, 1959) in which it was indicated that the matters taken into account might be

3 2 "(1) the sufficiency of an increase in population,

4 (2) that there was an increase in the number of licensed houses and an enlargement of old licensed houses,

5 (3) certain of the objectors public houses contained unused license space,

6 (4) people tended to leave their drinking to the last half hour or so and

7 (5) customers preferred to compress their drinking into Friday and Saturday nights and Sunday opening hours."

8 The evidence in the instant case shows that in fact there is a very small number of residents in the area. The court was furnished with evidence in relation to the number of electors in the city centre[AA Polling district in the District Electoral Division of Centre A/1 in the North East] having 150 residents in the polling district in question. Accordingly, it is manifest that the number of public houses in the area is not related to or justified by the population of the area itself. It is therefore self evident that the existing trade in the licensed premises in the area do not depend upon customs of local residents but relates to visitors to the centre city area to Cork.

9 While a portion of this appeal was taken up with a definition of "neighbourhood" in the context of this application, it was suggested that there are alternative methods of ascertaining the neighbourhood such as taking an area involving a radius of 250 yards from the subject premises. On this basis it is submitted that if the latter approach is taken, it will indicate that the number of licensed premises has in fact diminished and a number have closed since the application was lodged in the instant case. Insofar as premises may have closed the evidence suggests that these related to very small premises. It is submitted on behalf of the applicant that whether or not there is a sufficient number of licensed premises is largely dictated by market forces and in this regard counsel for the applicant relies upon the fact that no competing traders have objected. On this basis it is submitted that it is reasonable to assume that there is room for another premises, particularly a licensed premises, of the dimensions indicated on the plans and with the custom intended to be solicited by the applicant.

10 The applicant indicated that the premises in question used to be a former family home and he is trying to establish a licensed premises there and live overhead. It was indicated by Mr. Peter Haughton chartered civil engineer on his behalf that the intention was that the third and upper floor would be used as residence for Mr. Lyons. It was indicated by him that the necessity of keeping the character of the building was uppermost in the design. It was intended that there be an upstairs lounge on the first floor, a small lounge, a toilet area, a cold room area and small kitchen and office. On the second floor there would be a three bedroomed apartment which must be used by the management and cannot be let by anyone other than the owner of the building.

11 It was indicated that the structural works proposed involved an opening up of fire safety rules. One hundred and thirty people will be capable of using the ground and first floor of the premises. It was indicated that the redevelopment...