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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Re : An Apllication by Mc Closkey & O'Kane Building Company [2010] IEHC 261 (17 June 2010)
URL: http://www.bailii.org/ie/cases/IEHC/2010/H261.html
Cite as: [2010] IEHC 261
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Judgment Title: Re : An Apllication by Mc Closkey & O'Kane Building Company Composition of Court: Judgment by: Peart J. Status of Judgment: Approved |
Neutral Citation Number: [2010] IEHC 261 THE HIGH COURT NORTHERN CIRCUIT COUNTY DONEGAL IN THE MATTER OF THE LICENSING (IRELAND) ACT 1902 TO 2000 AND IN THE MATTER SECTION 2 OF THE LICENSING (IRELAND) ACT 1902 AND SECTIONS 19 AND 23 OF THE INTOXICATING ACT 1960 AND IN THE MATTER OF AN APPLICATION BY NICHOLAS BROWN, THE PERSON NOMINATED BY: McCLOSKEY AND O'KANE BUILDING COMPANY LIMITED Judgment of Mr. Justice Michael Peart delivered on the 28th day of June 2010: The applicant is a limited liability company which by Indenture of Conveyance dated 1st October, 2004 purchased an hotel premises known as Greencastle Fort Hotel in Co. Donegal, together with about seven acres of adjoining land, and the licence and goodwill for a consideration of €2,775,000. According to the evidence which I have heard on this appeal, it appears never to have been the intention of the purchaser to operate the premises as a hotel. Upon the completion of the purchase the hotel premises was boarded up, and has not since traded. Rather, the premises appears to have been purchased with a view to developing the lands attached to the hotel, as the purchasing company is a building development company with, according to the evidence before me, a turnover of some €10 million per annum. The hotel's intoxicating liquor licence last expired on the 30th September, 2005. It has not subsequently been renewed at any Annual Licensing District Court, and has therefore lapsed. The applicant is anxious to revive it, and seeks to do so by means of the provisions of s. 2(1) of the Act of 1902 which (as amended by s. 23 of the Act of 1960) provides:
(1) For premises (not being premises which were licensed by virtue of paragraph (2) of this section) which were licensed at any time during the period of five nears immediately before the day on which notice of an application for the grant of a certificate entitling the holder to receive a licence in respect of the premises is given, pursuant to rules of court, to the appropriate County Registrar or to the appropriate District Court Clerk, as the case may be; ...” As I have said, the said licence expired on the 30th September, 2005, and the applicant filed a Notice of Application to the Circuit Court on the 25th September, 2009 seeking to renew the licence on the basis that it is in respect of a premises which were licensed within the previous five years. According to the evidence which I have heard, the reason why the applicant company wishes to revive this licence for the hotel premises is because, with the downturn in the national economy since the date of purchase of the premises, the plans for developing the lands attached to the hotel have not come to fruition, and the company wishes now to keep all its options open, which presumably include the possibility that it may reopen the hotel, though it is accepted that same would require the expenditure of a considerable amount of money in order to restore same to an acceptable standard and condition. It appears that following the closing and boarding up of the premises they have become gradually vandalised and dilapidated, though the structure is still sound, and would require significant reconstruction and refurbishment before they could operate as an hotel of any kind. This application is opposed by the local Fire Officer since, in his view, the premises are not in a fit state to be used as a licensed premises. Indeed, there is no dispute about that fact. The applicant on the other hand is prepared to undertake that if the licence is revived, the premises will not trade under that licence until such time as the Fire Officer is satisfied that it is safe and appropriate to do so. The application to renew the licence was refused by order of the Circuit Court on the 30th January, 2010, and the present application is by way of appeal from that order. At first glance, and it is on this basis that the present application is made, this licence could be renewed since the premises were licensed within a period of five years prior to the notice of application herein being lodged on the 25th September, 2009, and therefore come within the first exception to the general prohibition on the granting of intoxicating liquor licences contained in s. 2 of the Act of 1902, namely in respect of "premises ....which were licensed at any time during the period of five ears immediately before the day on which notice of an application for the grant of a certificate entitling the holder to receive a licence in respect of the premises is given..”. But the question is whether these premises are in fact a premises coming within that subsection, as the words in parenthesis in the subsection are centrally important. They state that subs. (1) applies to “premises (other than premises which were licensed by virtue of paragraph (2) of this section)”. Section 2, subsection (2) (as amended by s. 21 of the Act of 1960) provides for a second exception to the general prohibition on the granting of intoxicating liquor licences, as follows:
The situation is therefore that a hotel which was in existence prior to the passing of the Act of 1902 will already have had a full publicans' licence granted under earlier legislation, and this enabled such an hotel premises to have operate a public bar, and not confined to serving guests of the hotel. Such licences are renewed annually and continue to survive to the present day. Those premises are the premises referred to in s. 2(1) of the Act of 1902, and where such a licence is allowed for whatever reason to lapse by not being renewed annually, a new such licence may be granted by the Circuit Court provided that the notice of application in that regard is lodged not later than five years from the date of last expiry. However, it is necessary to appreciate the distinction between such pre-1902 hotels trading with the benefit of such a full publicans' licence, and hotels which came into existence after the passing of the Act of 1902, and who trade with the benefit of a licence granted pursuant to s. 2(2) of the Act of 1902. Following the passing of that Act, an `hotel licence' entitled the owner to serve intoxication liquors to its guests but no public bar was permitted to exist in the hotel. That situation existed up to the passing of the Act of 1960, which provided in s. 19 thereof that a s. 2(2) hotel licence holder under the Act of 1902 could, by obtaining in the District Court an order extinguishing an ordinary seven day licence, have a public bar in the hotel, thus entitling the owner to serve intoxicating liquors to persons other than hotel guests. Such a hotel was therefore for all practical purposes in the same position as a hotel owner whose premises had the benefit of a pre-1902 seven day ordinary licence. However, it seems to me clear that s. 2(1) of the Act of 1902, which enables a lapsed licence to be renewed provided that application in that regard is made within five years of its last expiry, applies only to a premises which enjoys the benefit of a pre-1902 ordinary publicans' licence, and not to an hotel premises which, prior to the Act of 1960, could have no public bar thereon but which following the passing of the Act of 1960, made an application for the extinguishment of an ordinary publican's licence, which thereafter entitled it to have a public bar, as provided for in s. 2(2) of the Act of 1960. The question in the present application is simply whether the present application is one relating to a premises to which s. 2(1) of the Act of 1902 applies, or whether it is an hotel premises to which s. 2(2) of the Act of 1902 applies. If the latter, then the fact that the present application is being made within five years of the date of expiry of the licence is irrelevant, and the question is simply whether there is any provision for the revival or renewal of the licence which lapsed after the 30th September, 2005, and where the premises to which it formerly attached are dilapidated and not capable of being used until such time as a considerable amount of money expended on its refurbishment. The available evidence points clearly to this premises being one which enjoys a licence obtained under s. 2(2) of the Act of 1902, and benefiting after the passing of the Act of 1960 from an order under s. 19 of the Act of 1960 whereby a seven day ordinary licence was extinguished. That evidence is in the form of a copy of the actual licence attaching to the applicant's premises which was last renewed in September 2004. Under the name of the licence holder at that time, namely the vendors to the present applicant company, the following appears: "Sec 2(2) 1902 Act & Sec. 19 Act of 1960”. On its face that seems to clearly indicate the category of licence which it is. Such a licence, granted under s. 2(2) of the Act of 1902, operates only for so long as the premises to which it relates continues to fulfil the definition of an hotel and operate as such. While the licence so granted has all the hall-marks of a full publican's seven day ordinary licence, it is nevertheless different in character. For example, it is not one capable of being transferred and extinguished by another hotel owner for the purpose of an application under s. 19 of the Act of 1960. This distinction is described in Woods - Liquor Licensing Laws of Ireland, third edition, 2001 at p. 339 as follows:
At any rate, the applicant would have to proceed by way of an application for a certificate entitling him to a new hotel licence, and such a new licence would now have to be considered in the context of s. 4 (9) of the Courts (No. 2) Act, 1986 which provides:
(a) in respect of which effect was given to section 42 (1) of the Act of 1952, or (b) which was granted after the passing o the Act of 1960, by virtue of paragraph (2) of section 2 of the Act of 1902, shall not be renewable on expiry without the production to the Revenue Commissioners of a certificate that the hotel in respect of which the licence was granted is registered in the register of hotels kept by Bord Failte Eireann.” (My emphasis) In addition to that obstacle, the applicant would have to survive a possible objection being made to the Court under s. 32(1) of the Act of 1960 "on the grounds of the unfitness of the premises to be licensed ... ... ... [and] if the Court is satisfied that the premises are unfit to be licensed, it may refuse to grant the certificate provided for by section 4 (7) or 4 (8) (as the case may be) of the Courts (No. 2) Act, 1986”. In my view there is no jurisdiction to revive by way of renewal the intoxicating liquor licence which formerly attached to these premises and which has lapsed, since the premises are premises coming within s. 2(2) of the Act of 1902 and not within subs. (1) thereof, even though this present application has been lodged within five years from the date of expiry, and I am satisfied that no undertaking that if the licence were to be renewed no trading would take place until the Fire Officer was satisfied, is adequate to overcome the difficulty facing the applicant. For all these reasons set forth above I affirm the order of the Circuit Court Judge made on the 30th January, 2010.
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