High Court of Ireland Decisions

Charton Investments, Re [1987] IEHC 31 (4 August 1987)\

D5962

THE HIGH COURT

On Appeal From

THE CIRCUIT COURT

18/P82/87

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1981 AND IN THE MATTER OF THE LICENSING ACTS 1833 to 1986

AND IN THE MATTER OF SECTION 14 OF THE INTOXICATING LIQUOR ACT, 1960

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

AND IN THE MATTER OF AN APPLICATION OF CHARTON INVESTMENTS LTD

Judgment of O'Hanlon J., delivered the 4th day of August, 1987

I have already expressed my views in relation to the manner in which certain provisions of Section 14 of the Intoxicating Liquor Act, 1960, should be construed, in the case immediately preceding the present appeal, which concerned the application made by Brendan McGrath, Applicant, in relation to premises proposed to be licensed at Number 33 Upper O'Connell Street, Dublin. Therefore I do not consider it necessary to refer again to the earlier decisions where the Courts were called on to consider the manner in which the expression "immediate vicinity", as used in that Section, should be construed.

In the present case the Applicant is the owner of premises known as "Giordani's11, situate at Nos. 40 and 41 Grafton Street in the City of Dublin, where a restaurant business is carried on, and applied to the Circuit Court for a certificate under the Licensing Acts entitling it to receive a full publican's seven-day on-licence in relation to the said premises, and applied further for a certificate that the said premises are structurally adapted for use as a restaurant, refreshment house and other place for supplying substantial meals to the public and is a restaurant for the purposes of the Intoxicating Liquor Act, 1927, Section 12.

In connection with the said application, the Applicant proposed, if successful, to procure the extinguishment of a licence attached to other premises at 56 Lower Kevin Street, Dublin, (if still subsisting), being a licensed premises demolished not more than two years before the date on which the notice of the present application was served on the County Registrar for the County and City of Dublin.

The application was opposed by a number of publicans occupying licensed premises in the Grafton Street area, all within close proximity to "Giordani's", who contended that "Giordani's" could not be regarded as being in the immediate vicinity of 56 Lower Kevin Street (formerly the site of the Good Times Bar), and furthermore that the new licence, if granted, would be likely to have a materially adverse effect on their business.

The distance between "Giordani's" and No. 56 Lr. Kevin Street was given as 634 yards by the nearest direct route on foot. It involves a journey up the remainder of Grafton Street from "Giordani's" (which is located not far from the top of that street), along the West Side of St. Stephen's Green for the full length of that side, a right-hand turn into Cuffe Street and having again traversed the full length of Cuffe Street one comes upon the site of the old licensed premises, the Good Times Bar, at the corner of Lr. Kevin Street and Redmond's Hill at the point where the intersection with Wexford Street is located.

From the evidence given in the case, and from my own knowledge of the area, I would regard the two locations as being completely different in character, the transition having taken place from the fashionable centre of Dublin in Upper Grafton Street, to the rather decayed and down-graded area surrounding the intersection of the four streets already mentioned. Having regard to the distance involved which separated the two sites, and the marked difference in the "two trading areas, I am of opinion that they should not be regarded as being in the "immediate vicinity" of each other, within the meaning of that expression as used in Sec. 14 of the Intoxicating Liquor Act, 1960.

Furthermore, having regard to the very extensive floor area of "Giordani's", and the fact that it would be open to the Applicant or any assignee or successor in title of the Applicant to change from the present restaurant business to a full-scale publican's business, once the premises became licensed for the sale of intoxicating liquor, and once any necessary planning permission was obtained, it appears to me that the local publicans in the Grafton Street area had good reason to be apprehensive about the potential impact on their business if the application were successful, and on this second ground also, I would decide against the Applicant. I am of opinion that the location of a licensed premises on the Grafton Street site rather than on the original site in Kevin Street would be likely to have a materially adverse effect on the business carried on by the publican-objectors who resisted the application and that on both of the grounds relied on by them the application should be refused and the Order made by the learned Circuit Court Judge should be reversed.

R. J. O'Hanlon.

4th August, 1987.