DONNELLY v REGENCY HOTEL LTD AND OTHERS
Application for in-off licence – suitability of premises – extent to which court should consider locality of premises – whether court should consider feasibility of applicant’s building plans – adequacy of premises – extent of vicinity – discretion of refuse application – Licensing Act (Northern Ireland) 1971 – surrender of subsisting licence.
A provisional grant of a licence was made to the applicant to sell intoxicating liquor either in or off premises known as 5 Lower Crescent Belfast (The Fly Bar). This provisional grant was granted by the Recorder despite objections by publicans in the area, owners of commercial premises, the trustees of a nearby church and the Royal Ulster Constabulary. Some objectors appealed against the decision to grant a licence on the grounds of the unsuitability of the premises and the adequacy of licensed premises in the vicinity and they also sought to invoke the general discretion of the court to refuse the application. The objectors contended that the shortcomings of the premises were such as to render them unsuitable to be licensed for the sale of intoxicating liquor by retail. The applicant maintained that the defects alleged against the premises were not within the category of those to which the court should have regarded when considering suitability, that the problems were all capable of being surmounted by the applicant and the court should leave such matters to the determination of various statutory agencies which have jurisdiction over them and require them to be satisfied.
A subsisting licence was surrendered at the hearing before the Recorder. Questions were raised whether the licence had to be surrendered de novo at the hearing of the appeal and whether it must be subsisting at the time.
Held.
1. The surrender of the licence at the hearing before the Recorder sufficed to satisfy the requirements of section 5(2)(c)(ii) of the Licensing Act (Northern Ireland) 1971.
2. (i) When considering the suitability of the premises, matters such as structural stability, sewerage and access should be left to the relevant statutory agencies. Where the court could not absolve itself of its statutory task of deciding upon suitability by placing complete reliance upon the determination of statutory agencies it should be slow to reach a conclusion at variance with a considered decision of a competent agency acting within its own sphere.
(ii) The court can look ahead to the stage of completion, assume that these authorities have all been satisfied and determine the question of suitability of the premises on the basis that the applicant has found a way to bring the plans submitted to the court to successful fruition. While the premises were less than ideal in a number of respects the defects were not sufficient to make the premises unsuitable for their purpose.
3. There was a considerable and growing demand in the vicinity which was not satisfied by the existing licensed premises. Accordingly the applicant had discharged the onus of proving adequacy. Rather than drawing the boundaries of a fixed area in deciding the adequacy of the number of licensed premises in a vicinity the court should look at each set of licensed premises in turn and decide if they fell within the vicinity of the subject premises. In so doing, the court should consider not only public houses but hotels selling liquor for consumption on the premises.
4. The limits of the discretion to refuse a licence notwithstanding the satisfaction of all the tests set out in the said section 5(2) are far from settled and difficult to define. A number of factors were put forward by the objectors including the possibility of increased noise and disturbance; the difficulties for parking; rear access and blockages of sewer system and the proximity to the Crescent Church. These factors were insufficient.
Appeal dismissed.
HC [1985] NI 144, [1985] 5 NIJB 27
