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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Lyons, Re [2004] IEHC 301 (30 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/301.html Cite as: [2004] IEHC 301

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THE CIRCUIT COURT

HC 301/04

CORK CIRCUIT COUNTY OF CORK

2004 8 CA

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

JUDGMENT of Mr. Justice Andrias Ó Caoimh delivered the 30^th July, 2004.

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, 1960 that 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, 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 (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 gardaí 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

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

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

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

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

(5) customers preferred to compress their drinking into Friday and

Saturday nights and Sunday opening hours."

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 of Cork.

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.

The applicant indicted 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.

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 of the premises would involve retaining a portion of the premises and upgrading the roof and walls. The estimated cost of same was €240,000.00. There would be a building into the rear over the yard. It was indicated that this would involve adjustment to partition walls. No walls would be removed. It was indicated that at the back of the premises there was a brick and stone wall with lime mortar which was not structurally predictable. It was indicated that there would be an extension of approximately four hundred square foot to the premises. It was indicated that planning permission had been obtained for the extension. It was indicated by him that the total square footage of the building would be 3,400 square foot approximately. It was indicated that no external walls had to be removed.

The applicant in all evidence before me indicated that he hopes to develop the ground and first floors of the premises into a public house and to retain the upper floors as a family residence. He had indicated that he has worked in bars since 1979 on a part-time basis. He hoped that the premises would be of an old style classic Georgian pub. It was indicated by Mr. Lyons that his grandmother had occupied the entire premises as part of the Shamrock Hotel in the 1960s. The premises in question had been de-licensed in 1963. This was the year when he was born. Mr. Lyons indicated that significant work would be involved to comply with the planning permission granted. It involves extending the premises into the yard and opening out certain walls.

Mr. Lyons outlined his own investigation of the history of the area including that pertaining to public houses that used to exist in the area. He indicated that thirteen pubs had been de-licensed in the previous twenty five years. He indicated that within a three to five minute radius of the premises, something in the order of forty five public houses in the general area no longer existed. He referred to a number of new public houses in the area.

Mr. Lyons indicated in evidence that a number of premises that had closed in the area between the 1970s, 1980s and in more recent times. It was indicated that within the area of the subject premises a number of premises had been increased in size to become what is described as super-pubs. Two of these are within a short distance of the subject premises. It is further indicated that some premises had been extended to multiples of their original size.

Mr. Lyons indicated that he hoped to attract a different type of customer base to that of the super-pubs in the area.

Insofar as it was indicated to the applicant that the gardaí had concerns in relation to the manning and patrolling of the area the applicant referred to recent development in what is known as The Washington Village area of the city where a large number of licensed premises had been developed in recent times. In answer to the concerns of the gardaí it was indicated by the applicant that the District Court has taken a strong line in the recent past in relation to the granting of exemptions and extensions for the sale of drink in the area. The applicant indicated that he hoped to avail of passing trade in the area.

On behalf of the respondent evidence was given by Ms. Marian Reidy of the Cork City Council Franchise Office. She indicated the level of the population in the area and the fact that it was slightly in decline from year to year.

Evidence was given by Inspector Billy Dwane of Anglesea Street Garda Station. He indicated a threefold objection including the inconvenience of the premises, the number of premises in the area and their unsuitability. Inspector Dwane gave evidence in relation to a number of premises that had been developed in the recent years involving an increase in size of these public houses.

With regard to policing measures he indicated that when considering policing one has to consider the number of people who are going to congregate in an area. He indicated that the gardaí were looking at the aspects of public order in the area. He indicated problems in areas of pedestrianisation in the city. He indicated further the existence of three large super-pubs in the area and other large pubs. He indicated that that these attract large numbers of people into the area. He indicated the subject premises was part of the main thoroughfare to the west of the city. He indicated that the public houses in question attracted a young clientele and a large number of these exited onto the streets at night. He indicated the view that the streets cannot cater for the large numbers coming onto the streets. He indicated that there were a large number of premises which were licensed and in close proximity within the area. He indicated that the number of premises has a bearing on the question. He stressed the view that it is better to have premises spread out. It was indicated that there were eleven premises within a short proximity of the subject premises and eight dance licences existed with a potential for late night drinking. He indicated that the creation of one more public houses in the area, albeit small, had a potential to grow in the future. He expressed the view that another premises in the area would not be appropriate. Inspector Dwane addressed the problems of public order in the area and the measures that have been taken to try and address this problem. It was indicated that certain conditions had been imposed by the District Court in relation to licensed premises including the installation of CCTV cameras. He indicated that the gardaí look at the position of each premises on its merits. He indicated the policy of the gardaí to address objections to extensions. He further expressed the view that the number of premises in the area was adequate to cater for the demand in the area. Under cross examination he indicated that the gardaí had not objected to any extensions of other licensed premises in the area in the past.

Further evidence was given by Sergeant Michael Murphy of Anglesea Street Garda Station. He indicated in evidence the peak periods for the occupancy of these public houses was at weekends, especially Friday and Saturday nights and between the hours of 1 a.m. and 2 a.m. He indicated that the night clubs in the area do not fill up until after 1 a.m. He indicated that the gardaí had not objected to enlargement of premises in the area including that of Aoife Landers in 1997, in circumstances where this was before there was any notice of a public order issue arising in the area. Sergeant Murphy indicated that Anglesea Street Station is the divisional headquarters for Cork City. He indicated that there were a number of flashpoints in the area in relation to public order and this had been addressed by patrolling extensively in the area including the areas of Patrick Street, and its junction with Carey's Lane. He indicated that there is one other flashpoint at the other end of Oliver Plunkett Street. He indicated also the existence of public order difficulties arising from premises with dance licences. He confirmed that most public order problems arise on the streets after the premises in question close. He further indicated that in recent times a number of smaller public houses had applied for dance licences. He indicated that the courts have granted licences for smaller premises. Sergeant Murphy indicated that the gardaí would object to any new public house in the area. He indicated that the public order problem in the area related to the number of premises which surround the subject premises and have dance licences. Mr. Willis Walshe, Counsel for the applicant refers this Court to s. 18 of the Act of 2000 which provided as follows:

18.—(1) Where a person (in this section referred to as "the applicant") duly gives notice of his or her intention to apply for a licence (in this section referred to as a "new licence") in respect of premises to which a full licence was never attached and, at the proceedings in relation to the application, the applicant shows to the satisfaction of the Court that—

(a) a licence (in this section referred to as "an existing licence") is in force in respect of other premises,

(b) either—

(i) the applicant is the holder of the existing licence, or

(ii) the holder of the existing licence will consent to its extinguishment if and when a new licence is granted to the applicant under this section,

and

(c) the existing licence is a full licence or a licence of the same character as the new licence, the Court shall, notwithstanding anything contained in the Act of 1902, cause a certificate to be given to the applicant entitling him or her to receive a licence in respect of the new premises, unless the Court prohibits the issuing of the licence on the ground of—

(i) the character, misconduct or unfitness of the applicant,

(ii) the unfitness or inconvenience of the new premises,

(iii) their unsuitability for the needs of persons residing in the neighbourhood, or

(iv) the adequacy of the existing number of licensed premises of the same character in the neighbourhood.

(2) On the grant of the new licence—

(a) the existing licence shall be extinguished;

(b) any conviction which became recorded on the existing licence under section 25 of the Act of 1927 when the applicant was the holder of the licence and which is still recorded thereon at the time of the grant of the new licence by the Revenue Commissioners shall be deemed to be recorded on the new licence under that section and to have been so recorded on the date when it became recorded on the existing licence;

(c) the premises to which the existing licence was attached shall, for the purposes of the Act of 1902, be deemed never to have been licensed.

(3) Sections 15 (declaration as to fitness and convenience of proposed licensed premises) and 17 (certification of premises the subject of such a declaration) of the Act of 1960 shall have effect, with any necessary modifications, in relation to premises which a person proposes to acquire, construct or alter and in respect of which the person proposes to apply under this section to the Circuit Court or the District Court, as may be appropriate, for the grant of a certificate entitling him or her to receive a licence.

(4) Sections 3 and 4 of the Act of 1902 and section 13 of the Act of 1960 (which provisions relate to the grant of new licences in certain circumstances) are repealed.

(5) Subsection (4) shall not have effect in respect of—

(a) an application for a declaration in respect of proposed licensed premises under section 15(1) of the Act of 1960—

(i) of which notice was given pursuant to rules of court to the appropriate county registrar or district court clerk before the commencement of this section, and

(ii) in relation to which such a declaration was made (whether before or after such commencement),

or

(b) an application for the grant of a certificate entitling the applicant to receive a licence under section 3 or 4 of the Act of 1902 or section 13 of the Act of 1960—

(i) of which notice was given pursuant to rules of court to the appropriate county registrar or district court clerk before the commencement of this section, or

(ii) on the hearing of which it is shown to the satisfaction of the Court that a declaration was made by the Court under section 15(1) of the Act of 1960 before such commencement in respect of the premises concerned.

Counsel refers to the fact that the subject premises in fact had the benefit of a full licence in the past but the licence was extinguished upon the grant of a new licence that issued pursuant to the Order of the Circuit Court of the Northern Circuit, County of Donegal, dated 22^nd April, 1963. Counsel submits that it is apparent from the Order that the application in question was brought pursuant to s. 13 of the Intoxicating Liquor Act, 1960 (the Act of 1960) and that under s. 13(2)(e) it is provided that, upon the grant of the new licence, the existing premises shall for the purposes of the Act of 1902 be deemed never to have been licensed. On this basis it is submitted that the premises in question is one which is not licensed. With regard to s. 18 it is submitted that while one of the requirements of this section is that the application must be made in respect of premises to which a full licence was never attached that this requirement if literally construed will defeat the application because it did, prior to 1963, have the benefit of a full licence. It is submitted however that a literal construction of the section is inappropriate. It is submitted by counsel that the clear purpose of the provision was to ensure that the premises that has been the subject matter of a forfeiture order cannot be re-licensed.

Counsel further submits that a literal interpretation would have a far wider impact. It would be necessary for the applicant to establish that the premises in question were never licensed at any stage in the past. It is submitted that it would not be sufficient for him to prove that the premises were never licensed under the 1902 Act or even under the Act of 1833. Counsel submits that if never means never then the applicant must show that the premises were unlicensed at all times since the concept of an intoxicating liquor licence was created. It is submitted that the established mode is to require the appropriate district court clerk to certify that a full licence was never attached to the premises in question. It is submitted further that it is rare for a district court office countrywide to have in its possession licensing registrars to go beyond the mid to early years of the twentieth century. Similarly the records of the customs and excise offices are not exhaustive. On this basis it is submitted that it is well nigh impossible to prove in a conclusive fashion that the premises were "never" previously licensed. Counsel refers to s. 1(2) of the Act of 2000 which provide

"The Acts and this Act, insofar as this Act amends and extends the Acts, may be cited together as the Licensing Acts, 1833 to 2000 and shall be construed together as one."

The same provision defines "Act" to mean the Licensing Acts, 1833 to 1999. On this basis it is submitted that the collective Acts are the licensing code. Counsel refers to the fact that an identical provision was contained in s. 1(2) of the Intoxicating Liquor Act, 1960 and it is submitted that the indication therefore from the Act of 2000 itself is that the Act is merely one of the Acts contained in the code and that it was certainly not intended to supersede the code. On this basis it is submitted that it pre-supposes that the licensing history commences in 1833 and indeed insofar as the creation of new licences is concerned in 1902. It is therefore submitted that it is sufficient for the purposes of s. 18 to show that the premises in question were never licensed under the Act of 1902 or if they were so licensed that they were de-licensed and deemed never to have been licensed for the purposes of the Act of 1902. Counsel submits that this is a familiar legislative formula when a licence is extinguished for the purposes of the grant of a new licence and that s. 18 itself contains such a proviso at s. 18(2)(c). Under that provision the existing licence is extinguished and the premises to which the existing licence was attached shall, for the purposes of the Act of 1902 be deemed never to have been licensed. It is submitted that the use of the formula in s. 18 is a clear recognition of the existence of a licensing code and further recognition that the lynchpin of the code is the Act of 1902. Counsel submits that the Act of 1902 has become and is the corner stone of the licensing regime. It is the primary Act in relation to intoxicating liquor and it is that Act which is the foundation for the underlying philosophy behind the code to the effect that no new licence shall be granted save in the exceptional circumstances expressly provided for in the Act of 1902. It is submitted that thereafter further statutory exceptions were made and s. 18 is one such exception and should be so construed.

Counsel submits that the restrictive construction is therefore, consonant with principle and practice. Counsel refers to the fact that s. 18 itself repeals two sections of the Act of 1902 under which new licences were granted that is ss. 3 and 4 any further enabling provisions, s. 13 of the Act of 1960 fails to incorporate former enabling provisions within the scope of the new enabling provisions. It is therefore argued that the new provision was intended to operate more restrictively than the repealed provisions.

It is submitted that whenever a new licence is granted upon the extinguishment of an existing licence or licences the extinguishment is invariably accompanied by a provision that the premises to which the existing licence was attached are deemed never to have been licensed or deemed never to have to been licensed for the purposes of the Act of 1902. On this basis it is submitted that once a licence is extinguished in such circumstances and the deeming provision takes effect then the premises are then thought capable of being licensed under s. 18. Counsel refers to the fact that the former licence was extinguished upon the application under s. 18 of the Act of 1960 and s. 13(2)(e) provides that:-

"Upon the grant of the new licence, the existing licence shall for the purposes of the Act of 1902, be deemed never to have been licensed."

Counsel further refers to s. 17(1)(c)(ii) which provides that:-

"upon the extinguishment of the relevant licence or licences the premises to which it or they related shall be deemed never to have been licensed. This arises where a declaration of suitability has been made under s. 15. It is submitted therefore that the legislature in deeming a premises never to have been licensed were unconcerned as to whether the deeming related to the Act of 1902 or otherwise".

Counsel submits that it has never hitherto been suggested that there is any difference between the deeming provision contained in s. 17 and the deeming referred to in section 13. In all cases the premises were regarded as though they had never been licensed. The primary purpose behind the provision was to ensure that the old licence could not be revived in reliance upon either s. 2(1) or s. 6 of the Act of 1902. Counsel submits that the appropriate conclusion to be drawn is that there is no real distinction between a deeming provision, whereby the old premises are treated as never having been licensed, and a deeming provision whereby the old premises are treated as never having been licensed for the purposes of the Act of 1902. Counsel submits that whenever a licence is extinguished with the consequence that it is deemed never to have been licensed (whether for the purposes of the Act of 1902 or generally), such premises can be licensed under s. 18. It is submitted that the contrary interpretation leads to a absurdity.

Insofar as it may be argued that because s. 13 of the Act of 1960, was repealed by s. 18 that the deeming provision contained in s. 13 cannot be relied upon, it is submitted that this contention cannot be correct. It is submitted, that once the licence was extinguished under s. 13, then the premises to which it attached are deemed never to have been licensed. That was the legal status which was conferred on the premises in 1963. It is submitted that the repeal of the Act of 1960, cannot affect that status. It is submitted, that an application for a new licence can no longer be prosecuted under s. 13 but that cannot affect licences that were granted under s. 13 or premises that were de-licensed under s. 13. It is submitted, that to contend otherwise is to suggest that the repeal was retrospective. It is submitted, that this is excluded by s. 21 of the Interpretation Act, 1937, which provides, inter alia, where an Act of Oireachtas repeals the whole or a portion of a previous statute, then unless the contrary intention appears, such repeal shall not (b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the statute or portion of a statute so repealed." It is submitted that the deemed status provided for in s. 13 of the Act of 1960, is either "right or obligation accrued or incurred" under the Act of 1960 which is unaffected by the repeal.

An alternative submission is that it is a fact that the intoxicating liquor licence is attached to a premises and not merely a location or an address. Accordingly, it is submitted, that if the premises which it is now sought to licence is a different premises from that which was previously licensed, then the requirements of s. 18 can be met. It is submitted, that this arises because if the identity of the premises is altered, whether by curtailment or extension, the licence is obliged to seek a new licence in respect of the altered structure. Counsel refers to the judgment of Griffin J. in Macklin v. Greacen [1983] I.R. 61 where he stated, inter alia, as follows:-

"…as the premises to which the original licence attached has been extensively altered by the bomb attack of 1974, it is likely that the renewals of the licence thereafter were invalid on that ground..".

Thus, it is submitted, if a licence when granted attaches to a structure then when there are alternations to the structure a new licence must be sought in respect of the altered structure. In this regard counsel refers to application of Denis Guiney [1941] 75 I.L.T.R. 110 in which Davitt J. stated that it appeared to be:-

"clear on the authorities that when a licence is granted for a house or building it attaches to the structure not merely to the site and will to continue to exist and will be renewed only so long as there is no substantial change in the identity of the structure."

Counsel concedes that it is a question of degree but if there a substantial alternation to premises then the licence ceases to be a protection. On this basis, it is submitted, that the evidence will suggest that the premises are or will be substantially different if the declaration is granted and the alternations are carried out. On this basis it is argued that the premises were never licensed because they are at different premises to the premises that were previously licensed.

Dealing with the statutory objections raised as to the unsuitability of the premises and adequacy of existing premises, it is submitted that the burden rests on the State. As to suitability, it is submitted that the applicant has obtained planning permission and fire officer approval. It is submitted that these are relevant factors and were expressly taken into account by Finnegan P. In Re Whitesheet Inn Limited [2003] 2 I.R. 156 Counsel indicates that it has not been suggested that there is any intrinsic deficiency in the premises themselves which would render them unsuitable. Counsel indicates that it is the State's case that the premises are unfit and inconvenient in view of the difficulties which the gardaí will or may encounter in relation to maintaining public order in the street. Counsel refers to Ore (Lesley) v. Monaghan Justices [1901] 35 I.L.T.R. 35 where Pallis C.B. stated as follows:-

"The reasonable possibility of exercising police control over a public house is a matter which may be taken into consideration."

Counsel submits that an objection of this nature would only be appropriate if the premises themselves because of their layout or the proximity of open spaces or whatever rendered police control impossible or very difficult. Counsel submits that difficulty in controlling drinkers on the street has nothing to do with the inability of the police to control this particular premises. It is submitted, that the gardaí are relying upon existing difficulties or alleged difficulties which is unconnected with the proposed licensed premises. It is submitted, that it is after all the suitability of the premises, rather than that suitability of the neighbourhood, that is in issue.

Dealing with the adequacy of the existing number of licensed premises, counsel submits that this is a ground for objection which closely parallels the usual grounds set out in s. 4 of the Licensing (Ireland) Act, 1833. As such, it is submitted, that it is subject to the general principle that the onus rests upon the objector. With regard to the definition of the neighbourhood, it is submitted that the view of the gardaí that the neighbourhood was effectively one half of Oliver Plunkett street, together with the side streets leading thereto and therefrom as rather simplistic. It is submitted that there is nothing to distinguish one half of Oliver Plunkett Street, from the other half and indeed no endeavour was made to do so. It is submitted that if one draws a ring around the premises to radius of say 250 yards that this exercise will indicate that there the number of licensed premises have in fact diminished and that a couple have closed since the application was lodged.

It is submitted that whether or not there is a sufficient number of licensed premises is largely dictated by market forces and it is of course significant that no competing traders have objected. On this basis it is submitted that it is reasonable to assume that it is the view of competing traders that there is room for another premises particularly a licensed premises of the dimensions indicated on the plans with the custom intended to be solicited by the applicant. It is submitted that the gardaí have failed to introduce any evidence of the presence or absence of demand for an additional facility. Their objection is largely confined to the proposition that there is a cluster of public houses in the area and that this cluster is already giving rise to public order difficulties. From this they conclude that there are sufficient facilities and that the proposed new modest facility will exacerbate matters. Emphasis was laid upon the fact that Oliver Plunkett street is a competitively narrow street which is due to be pedestrianised. It was submitted that this is erroneous as the evidence has shown that the pedestrianisation will not operate at night time. It is submitted that the public order problem in the area insofar as same exists was due to large crowds congregating on the streets after closing time, particularly at weekends. Counsel refers to the number of super-pubs in the area which have late night extensions because of their dancing licences. It is submitted that it is highly unlikely that all these pubs would all be filled to the maximum capacity on any particular weekend and certainly not every weekend. It is accepted that they can undoubtedly be a large number of people spilling onto the streets together at the same time. It is submitted that the subject premises would not however, contribute to this congestion. It is not a super-pub. It is a small premises which is intended to provide an alternative to super-pubs. It is submitted that the applicant has no intention of applying for a dance licence and indeed the premises are too small to accommodate any such use. It is submitted that the gardaí now wish to penalise the applicant for their inability to object to extensions of other public houses in the area which were initially small but which have subsequently been converted so that they can obtain late night extensions. It is submitted that the gardaí object to the subject premises on the grounds of an apprehended problem rather than an existing problem. It is submitted that the subject premises will not have a late night licence and that the applicant's customers will not be thrown onto the streets at the same time as the customers emerging from the super-pubs. It is submitted that the gardaí can object to any extension of the subject premises and they can also do so exactly on the same grounds as they now do so. It is submitted that the court in considering the present objection must only taken into account an existing premises in an existing neighbourhood. It is submitted that this Court is required to treat the premises as if they were erected and on this basis the court adjudicates upon the notional existing premises. It is submitted that it is not correct to deal with the premises that might be extended in the future. It is submitted that the subject premises are located in the natural existing neighbourhood rather than a prospective neighbourhood. It is submitted that it is incorrect to engage in speculation as to future development of the area and that the application must be judged on the basis of an existing premises in an existing neighbourhood. On this basis it is submitted that the public order objection is not well founded. It is submitted that such problem as exists in relation to public order has been addressed by the District Court and by the gardaí themselves who have identified the problem and have controlled it. It is submitted that such problem as may exist will not be exacerbated by the premises that the applicant hopes to establish having the clientele that he hopes to secure and without having the benefit of extended closing hours. Counsel submits finally that the presence or absence of demand is undoubtedly a factor. It is submitted that the gardaí have failed to introduce evidence to indicate whether or not there has been for example an increase or decline in sales in the existing premises.

On behalf of the gardaí Mr. Pierce Sreenan, submits that any extension to the subject premises is of minor or trivial nature insofar as the extension is in order of forty square metres of premises which represent approximately ten percent and most of the premises.

Counsel submits that at the heart of this application are the provisions of the Act of 1960 and in particular s. 13(2)(e). Counsel refers to the fact that when enacting s. 18 of the Act of 2000 the legislature saw fit to repeal s. 13 itself. Counsel refers to the fact that the applicant relies upon s. 18 but can only do so for relying on the provision which it itself is repealed by s. 18. Counsel refers to the fact that such status as is now abolished was not retro-respectively abolished. Counsel submits that the Act of 2000 does not change the prior status of the premises. Counsel refers to the fact that the repeal in question is prospective in nature.

Counsel addressed the circumstances in which the Gardaí had changed their attitude in relation to applications for licences. Counsel stressed the fact that the instant case is the first application under s. 18 of the Act of 2000 pertaining to Oliver Plunkett Street or any street leading off it. Counsel stresses the fact that this court must reach a decision based upon the evidence having regard to the statutory framework and in particular the adequacy of the existing licensed premises in the neighbourhood. Counsel refers to the fact that this court has heard evidence with regard to the capacity of various premises which is in excess of 7000 persons. Counsel stresses that this case must be determined on its own facts and within the terms of the statutory grounds of objection and whether or not there has been a change in Garda policy in relation to these maters and whether that change of policy is reasonable or otherwise is not a proper matter which this court ought to take into consideration. Counsel stresses the fact that s. 18 of the Act of 2000 was attended to facilitate the grant of new licences by creating a further section to the Act of 1902. Counsel stresses that the legislature was conscious of the need to permit objections to be made on specific grounds in circumstances where, as in this case, the Gardaí have legitimate concerns that there would be an unnecessary over supply of licensed premises in any one "cluster". Counsel stresses the fact that the State's objection in this case is on the basis that there is an existing adequate supply of licensed premises in the neighbourhood. Counsel stresses the fact that the objection in this case does not relate to the character of the applicant himself.

Conclusions

Section 18 of the Act of 2000 reads as follows:

18.—(1) Where a person (in this section referred to as "the applicant") duly gives notice of his or her intention to apply for a licence (in this section referred to as a "new licence") in respect of premises to which a full licence was never attached and, at the proceedings in relation to the application, the applicant shows to the satisfaction of the Court that—

(a) a licence (in this section referred to as "an existing licence") is in force in respect of other premises,

(b) either—

(i) the applicant is the holder of the existing licence, or

(ii) the holder of the existing licence will consent to its extinguishment if and when a new licence is granted to the applicant under this section,

and

(c) the existing licence is a full licence or a licence of the same character as the new licence,

the Court shall, notwithstanding anything contained in the Act of 1902, cause a certificate to be given to the applicant entitling him or her to receive a licence in respect of the new premises, unless the Court prohibits the issuing of the licence on the ground of—

(i) the character, misconduct or unfitness of the applicant,

(ii) the unfitness or inconvenience of the new premises,

(iii) their unsuitability for the needs of persons residing in the neighbourhood, or

(iv) the adequacy of the existing number of licensed premises of the same character in the neighbourhood.

(2) On the grant of the new licence—

(a) the existing licence shall be extinguished;

(b) any conviction which became recorded on the existing licence under section 25 of the Act of 1927 when the applicant was the holder of the licence and which is still recorded thereon at the time of the grant of the new licence by the Revenue Commissioners shall be deemed to be recorded on the new licence under that section and to have been so recorded on the date when it became recorded on the existing licence;

(c) the premises to which the existing licence was attached shall, for the purposes of the Act of 1902, be deemed never to have been licensed.

(3) Sections 15 (declaration as to fitness and convenience of proposed licensed premises) and 17 (certification of premises the subject of such a declaration) of the Act of 1960 shall have effect, with any necessary modifications, in relation to premises which a person proposes to acquire, construct or alter and in respect of which the person proposes to apply under this section to the Circuit Court or the District Court, as may be appropriate, for the grant of a certificate entitling him or her to receive a licence.

(4) Sections 3 and 4 of the Act of 1902 and section 13 of the Act of 1960 (which provisions relate to the grant of new licences in certain circumstances) are repealed.

(5) Subsection (4) shall not have effect in respect of—

(a) an application for a declaration in respect of proposed licensed premises under section 15(1) of the Act of 1960—

(i) of which notice was given pursuant to rules of court to the appropriate county registrar or district court clerk before the commencement of this section, and

(ii) in relation to which such a declaration was made (whether before or after such commencement),

or

(b) an application for the grant of a certificate entitling the applicant to receive a licence under section 3 or 4 of the Act of 1902 or section 13 of the Act of 1960—

(i) of which notice was given pursuant to rules of court to the appropriate county registrar or district court clerk before the commencement of this section, or

(ii) on the hearing of which it is shown to the satisfaction of the Court that a declaration was made by the Court under section 15(1) of the Act of 1960 before such commencement in respect of the premises concerned.

The first matter that must be addressed in the context of s. 18 is whether the premises in question is one to which a full license was never attached. While it is clear from a reading of s. 13 (2)(e) of the Act of 1960 that:

"upon the grant of a new licence, the existing premises shall, for the purposes of the Act of 1902, be deemed never to have been licensed".

there is no reference therein to any other enactment being likewise affected. Section 13 of the Act of 1960 was expressly repealed by the provisions of subs. 4 of s. 18 of the Act of 2000. Accordingly at the time of the application in the instant case which post-dated the enactment of the Act of 2000, s. 13 stood repealed. In this regard I believe that the deeming provision in question therefore no longer stood and that it was the intention of the legislature that it should not stand in the context of the requirement of s. 18 (1) that the premises in question be one to which "a full licence was never attached". On this basis it appears to me that the applicant cannot bring this application within the terms of s. 18 of the Act of 2000.

Without prejudice to the foregoing, it is clear from the terms of s. 18 itself and in particular subs. 1 thereof that the court may prohibit the issuing of a new licence on the ground of

(i) the character, misconduct or unfitness of the applicant,

(ii) the unfitness or interconvenience of the new premises,

(iii) their unsuitability for the needs of persons residing in the neighbourhood, or

(iv) the adequacy of the existing number of licensed premises of the same character in the neighbourhood.

In the instant case no issue arises in relation to the character of the applicant.

Further I am satisfied that no issue arises in relation to the fitness of the new premises and no objection in fact has been raised in relation to same. I believe that in the context of the inconvenience that this must be seen in the context of the premises in question.

I accept the submissions of counsel for the applicant that in considering the reasonable possibility of exercising police controlled over a public house that this relates to the premises themselves and the physical attributes of same. However I believe that in the context of the term 'inconvenience' that one can have regard to the circumstances addressed by the Garda Síochána in the instant case in relation to the difficulties pertaining to control and public order in the area. However the inconvenience in question relied upon is one which relates to an accumulation of premises and not simply to the subject premises.

The further matters relied upon is the adequacy of the existing number of licensed premises of the same character in the neighbourhood. In this regard it was indicated by Finnegan P. In Re: Whitesheets Inn Limited [2003] 2 I.L.R.M. 177 how the court should approach the term of the same character in the neighbourhood. At page 186 of the report he stated as follows:

"While elsewhere in the licensing code there is reference to licences of the same character I am satisfied that in considering an objection on this ground I am concerned not with the character of the premises in terms of ambience or décor or the nature of persons having recourse to other licensed premises in the neighbourhood and those likely to have recourse to the proposed premises. In these circumstances I propose to have regard only to premises having a seven day publicans on licences in the neighbourhood."

In this regard I take the same approach as was taken by the learned president in the Whitesheet Inn case. I have had a considerable volume of evidence in the instant case pertaining to the existence of other licenced premises of the same character in the neighbourhood. While the term neighbourhood is not defined I believe that the approach taken by the Gardaí in objection to the instant application with regard to the definition of 'neighbourhood' is appropriate but even if one were to construe that in the manner contended for by the applicant I am still led to the conclusion that there exists an adequacy in the existing number of licensed premises of the same character in the neighbourhood. The evidence in this case indicates a very great number of such premises in the neighbourhood however defined and in light of this fact I am satisfied that I have a discretion to refuse to the applicant the certificate which he seeks. I am satisfied that having regard to the totality of the evidence in the instant case relating to the existing number of licensed premises of the same character in the neighbourhood that a clear adequacy exists and that on this basis alone, I should refuse the application in the instant case and in the circumstances I will allow the appeal and refuse to the applicant the certificate which he seeks.

Approved: Ó Caoimh J.