IN THE MATTER OF AN APPLICATION BY U G HEGARTY

Licensing – licensing application – ancillary business meals and functions – live entertainment – whether number of licensed premises in the vicinity inadequate – Licensing (Northern Ireland) Order 1990.

An appeal from the decision of His Honour Judge Higgins QC Recorder of Londonderry, refusing to grant an application for provisional grant of a licence under Article 6(1)(a) of the Licensing (Northern Ireland) Order 1990 for premises at Strand Road, Londonderry. The premises comprised of a first, second and third floor of a seven storey building. There had been a restaurant licence for the first floor which was used as a restaurant. The second and third floors were used as a disco. On refusal to grant an application by the learned Recorder the matter was appealed by the applicant. The following issues arose on appeal:

(a)    whether the user of the second and third floors of the premises for providing entertainment will be ancillary to the business of selling intoxicating liquor by retail for consumption on the first, second or third floors of the premises or vice versa?

(b)    having regard to Article 8(2)(c)(i) of the Order has the applicant discharged the burden of showing an inadequate number of premises in the vicinity.

(c)    if the number of licensed premises of the kind specified in the application which were in the vicinity is inadequate.

Held.

1.    On balance the selling of intoxicating liquor on the premises predominates over all. The premises have as its principal business the sale of intoxicating liquor as required by virtue of Article 8(2)(b).

2.    The size and character of premises to be licensed may require to be considered determining what other licensed premises are in the vicinity. The number of licensed premises of the kind specified in the application which were in the vicinity were inadequate.¹

      The court did not accept the phrase “in the vicinity” as solely to be regarded in geographical or historical terms but also that other factors may affect it. For example, change in the use of buses and cars, the provision of parking facilities and the creation and use of pedestrian zones are relevant factors that may affect the decision as to the area to be taken into account.

¹    Reference made to Hynes v McAlinden. CA [1974] NI 166, [1974] NIJB (October) and Wheatfield Inns Belfast Ltd v Croft Inns Ltd. HC [1978] NI 83, [1978] 3 NIJB

3.    The court was satisfied in accordance with Article 8(2)(c) of the Order that the number of licensed premises of the kind specified in the application which are in the vicinity of these premises was inadequate.

4.    The final issue arising was in regard to an error in one of the newspaper advertisements. The court confirmed the decision of the Recorder that this was a very minor typing error and exercised its discretion in favour of the applicant.

Nicholson J stated;

“the decision is not intended as a precedent for converting other restaurants with facilities for functions into in-off licensed premises unless the number of in-off licensed premises in the vicinity is shown to be adequate” (page 60).

Appeal allowed.

HC [1991] NI 171, [1991] 4 NIJB 45