The State (Divito) v Arklow Urban District Council
| Jurisdiction | Ireland |
| Judge | Henchy J. |
| Judgment Date | 01 January 1986 |
| Neutral Citation | 1984 WJSC-SC 1263 |
| Court | Supreme Court |
| Date | 01 January 1986 |
1984 WJSC-SC 1263
Henchy J.
Griffin J.
Hederman J.
THE SUPREME COURT
Subject Headings:
GAMING: licence
LOCAL AUTHORITY: bias
STATUTE: application
Judgment of Henchy J.delivered the 7 June 1984 [NEM DISS]
Joseph Divito ("the applicant") wishes to convert his premises at 22 Upper Main St., Arklow, Co. Wicklow, into an amusement hall in which gaming would take place. To do so, he would need to get a certificate from the District Court, pursuant to s. 15 of the Gaming and Lotteries Act, 1956, ("the Act") authorising the issue of a licence for the purpose of the Act. S. 12 of the Act provides that such a certificate may be issued only if there is for the time being in force for an area containing the premises a resolution under s. 13 adopting Part III of the Act. Such a resolution, made by the Arklow Urban District Council ("the Council"), was in existence when the applicant first looked for a certificate from the District Court.In fact in April 1982 the District Court granted him a certificate for the premises, despite an objection by the Council. However, that order of the District Court was appealed to the Circuit Court by the Council and the Circuit Court Judge allowed the appeal in June 1982. The Judge apparently considered that the four existing licences in the urban area were sufficient and he was not satisfied as to the suitability of the premises or as to the class of persons likely to resort to it.
Undeterred by this set-back, the applicant carried out some modifications of the premises for the purpose of making a fresh application to the District Court. With a view to forestalling such a move, the Council, in October 1982, decided to rescind their earlier adoption of Part III of the Act. A resolution to that effect was passed by them on the 9 February 1983. This meant that while such rescission was in force no application would lie to the District Court for a certificate for the issue of a licence for any premises within the urbanarea.
It happened that in January 1983 the applicant had issued and published in the newspapers a statutory notice of his intention to apply afresh in the District Court on the 7 March 1983 for acertificate in respect of the premises. That application was not moved on the 7 March 1983. Instead it was adjourned and, as a result of a number of later orders, it still stands adjourned.
Meanwhile the Council published on the 10 March 1983 a statutory notice of their intention of re-adopting on the 13 April 1983 Part III of the Act, but only in respect of areas which did not include the stretch of Upper Main St. in which the applicant's premises lies. The stated purpose of that limited re-adoption of Part III of the Act was to enable the four existing amusement halls in the urban area to be licensed and to prevent a licence being issued for the central area of the town, which is where the applicant's premises stands.
That is the present state of affairs. The limited re-adoption of Part III of the Act was carried out by a resolution of the Council passed on the 13 April 1983. That resolution, while it stands, debars the applicant from getting a licence under the Act for his premises, for, as is made clear by s. 12, Part III of the Act (which is the Part dealing with the licensing of amusement halls and funfares) has no effect in any area unless there is for the time being in force a resolution under s. 13 adopting it for that area. It is common case that no such resolution exists for an area which includes theapplicant's premises. Thus the applicant is barred from getting a licence under Part III of the Act for his premises.
In an effort to find a way out of this impasse, the applicant instituted certiorari proceedings in the High Court to quash the resolution of the 9 February 1983 (making Part III of the Act inapplicable to the whole urban area) and the notice of the 10 March 1983 (leading to the resolution of the 13 April 1983 which left Part III of the Act inapplicable to the...
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