McNeill, Re. [2001] IEHC 204 (14 December 2001)

THE HIGH COURT
(ON APPEAL)
In Re LIQUOR Licensing Application re premises at No 40, otherwise 
No 40A, Cornmarket Street in the City of Cork

Liam McNeill
Applicant

JUDGMENT of Mr. Justice Barr delivered on the 14th day of December 2001.
	I am satisfied that the following facts have been established in evidence.  The applicant/appellant resides in Dublin and has been engaged in the liquor licence trade since 1979. Presently he has proprietary interest in twelve public houses, six in Dublin and six in Cork. He has built up that business over the years. 
	The applicant has purchased a substantial premises at 40 Cornmarket Street in the city of Cork, commonly known as the Bazaar Market for the sum of £950,000 and stamp duty. Subject to obtaining a liquor licence for the business, he proposes to carry out extensive renovations at the property at an estimated cost of £1,500,000 for the purpose of creating a quality public house with restaurant having an estimated capacity of 390 people including staff.  The building in question has been derelict for some years but is of considerable historical interest and significance.  It was built in the 18th century and originally formed part of a large indoor market known as the Cornmarket Bazaar.
	There is a laneway known as Cotterin’s Lane from Cornmarket Street which is nine feet wide and runs down the side of the applicant’s premises.  It serves several business properties in Castle Street the rear of which issue onto the lane.  The adjacent businesses include a large furniture store owned by Mr. Patrick Herlihy who gave evidence.  His premises comprises the remainder of the Bazaar which ceased trading in its original form in or about 100 years ago.
	A family called Foley carried on a grocery business in Castle Street in one of the other premises served by the lane.  One of that family, Mrs. Mary Murphy-Foley was born there in 1945 and worked in her family business for substantial periods until it was sold six years ago to Mr. Nic Rasa who also gave evidence, as did Mr. Vincent Nash and Mr. John Love, who worked for Mr. Herlihy’s predecessor in title, Mr. Clayton Love, for in or about 20 years until the business was sold by their employer in 1987.  It emerged from their evidence that the applicant’s premises was used during that period as an indoor clothes market run by women commonly referred to as shawlies.  There was one side entrance onto the lane which they used to bring clothing in and out of the building.  Outside on Cornmarket Street there were at that time and still are a number of street traders who deal in a variety of products including vegetables.  These traders use the lane to gain access to a tap on the side of the applicant’s building mainly for the purpose of washing vegetables for sale.  Cars are parked on the lane.
	Mr. Mannix, the sole objector in the Circuit Court, is a clothing retailer who with other members of his family have numerous shops in and about the centre of Cork, including one on Castle Street the rear of which abuts onto the lane.  He has also acquired the site of several cottages which originally fronted the laneway until destroyed  by fire many years ago.  Mr. Mannix has converted that site into a parking area for six to eight cars.  He and members of his family, most of whom are working in the vicinity, avail of that facility.
	The applicant and his nephew, who are joint owners, have obtained vacant possession of the premises, the last of the shawlies having gone some years ago.
	Another feature of the laneway having some significance was the erection of a gateway at the Cornmarket Street entrance in the 1970s.  The cost of so doing was borne equally by four users of the lane, including Mr. Mannix, all of whom were provided with a key to the gate but it was not locked in the daytime.  The reason for having the gate was to provide necessary security.  Criminal elements had taken an interest in the laneway for a variety of unlawful purposes and adjacent premises were vulnerable to robbery and had been robbed including the business of Mr. Mannix in Castle Street.  
	As to the history of Cotterin’s lane; that part of the city of Cork is ancient and in early days there were a number of laneways joining Cornmarket Street what is now known as North Main Street.  Ms. Sheila Lane, an archaeologist, gave evidence and introduced a photocopy of a map the original of which is stated thereon to have been made in 1726 by a cartographer of good repute called Carthy who also made other street maps of Cork.  In addition she referred to two similar upwards of 100 years old maps made by other cartographers.  They like Mr. Carthy show Cotterin’s lane as providing a route from Cornmarket Street to North Main Street.  Some time in the 19th century the laneway ceased to be a  through route and became a cul-de-sac of about 100 yards in length to Cornmarket Street which it still is.
	The applicant is seeking a declaration pursuant to sections 15 and 16 of the Intoxicating Liquor Act, 1960 and section 18 of the Intoxicating Liquor Act 2000, that the foregoing premises at No 40 otherwise No. 40A Cornmarket Street, in the city of Cork will be fit and convenient to be licensed as a public house and restaurant when altered in accordance with certain plans deposited with the application.
	The applicant has obtained planning permission from Cork Corporation in relation to the proposed development subject to certain conditions which he accepts and is willing to comply with.  He also has Garda approval for the project subject to an undertaking by Mr. McNeill given in evidence relating to a provision enabling the Gardai to gain access to Cotterin’s lane whenever they may wish to do so.  The latter undertaking relates to new security gates which it is proposed to erect in place of those presently in situe.  The former will be operated electronically by way of a push button discreetly placed inside the gateway.  That device will be available to Mr. Mannix and other adjacent business users of the lane who presently enjoy the benefit of it.
	In the light of the evidence I am satisfied that the applicant has complied with the requirements of section 15 and section 16 of the 1969 Act and with section 18 of the Act of 2000.  The grounds specified to in section 18 subsection 1 (i -iv) inclusive are for an objector to establish in support of his/her contention that the requested declaration ought not to be made.
	The primary ground advanced by Mr. Mannix in opposition to the declarations sought by the applicant is based on section 18 subsection 1 (ii) i.e. the alleged “unfitness or inconvenience of the new premises”.  In that regard it is contended 
(a)	that Cotterin’s  lane is not a public right of way and that the applicant’s rights as to user of it is no more than that deriving from a private right of way;
(b)	that the applicant is not entitled to the benefit of the proposed goods access door in his gable wall as intended (that door being larger than that which it will replace and differently located);
(c)	that he is not entitled to create two new emergency exit doors into the laneway as required by the fire officer to provide for total evacuation of the premises in the event of a doomsday situation  such as a major fire.  It is submitted that user of the lane in such an emergency is outside the scope of the private right of way enjoyed by the applicant and is an interference with the objectors rights in that regard;
(d)	that the regular deliveries of beer kegs and other goods from lorries parked on Cornmarket Street by way of a trolley to and from the delivery door in the laneway would interfere with the passage of cars entering or leaving the Mannix car park and therefore would interfere with his rights qua private right of way over the laneway.
	It is conceded by counsel for Mr. Mannix that if he fails on his first ground, his second and third grounds fail also.  The primary issue therefore is whether or not Cotterin’s lane is a public right of way.  As already stated, the area in the City of Cork where the lane is situated is ancient.  I am satisfied that Mr. Carthy’s street map of 1726, having an acceptable provenance, is likely to be reasonably accurate.  It appears to establish that Cotterin’s lane at that time comprised a right of way from Cornmarket Street to what is now North Main Street.  I am entitled to assume that Mr. Carthy and his two fellow cartographers referred to by Ms. Lane in evidence are likely to have been competent recorders of the situation as it existed in the 18th century and much of the 19th century and that I may conclude, on the balance of probabilities, that the owner of the land comprising Cotterin’s lane dedicated it as a public right of way.  It is also common case that the subsequent conversion of the laneway into a cul-de-sac does not affect its status as a public right of way nor does the erection of security gates at the Cornmarket Street entrance.  It is not contested that a given route may constitute a public and private right of way.  
	I do not accept that the applicant may not move the proposed delivery door in his gable wall to another point as intended or that a small increase in the dimensions of it would deprive the new door of its established status.  Likewise, the building of the proposed emergency escape doors, intended for use only in a doomsday situation which is unlikely ever to arise, cannot reasonably be regarded as a significant expansion of the applicant’s rights vis-à-vis the right of way, far less an unreasonable burden on it.  
	The remaining issues relates to perceived interference with the right of Mr. Mannix and his family to drive in and out of the lane while deliveries are being made to the applicant’s premises from vehicles parked on Cornmarket Street.  Such deliveries are in the main kegs of beer wheeled on a trolley to and from the delivery door in the lane.  Each such journey it is agreed would take less than a minute.  The delay which Mr. Mannix or his family might experience in driving in or out of the lane is therefore measurable in seconds.  Frankly, that particular objection is absurd and I reject it.
	The remaining ground of objection advanced by Mr. Mannix relates to “the adequacy of the existing number of licensed premises of the same character in the neighbourhood”.  It was apparent from his evidence that Mr. Mannix holds strong views about the desirability of public houses and his perception of their harmful effect on the social life of the community.  He is, of course, entitled to his opinion in that regard, but they are not pertinent to the application before the Court.  Mr. Mannix did not call any evidence as to the actual number, nature and capacity of other licensed premises in the area and has failed to establish that ground of objection.  It is significant that no competing publican in the area has sought to make that or any objection to the application.  All in all, I am satisfied that if at a future date the applicant’s business unreasonably interferes with the rights of Mr. Mannix vis-à-vis Cotterin’s lane, the letter has adequate remedies at law to restore such rights.  However, in that regard, I accept the evidence of Mr. McNeill that he is concerned to ensure that his business will be carried on in a way which respects the rights of his neighbours and that he wishes to remain on good terms with all of them.  I hope that the applicant’s evidence will have reassured Mr. Mannix and that harmony will be restored to Cotterin’s lane. 
	I, therefore, grant the declarations sought and discharge the order of the Circuit Court.      

rn(Licensing Applic.)jbarr