IN THE MATTER OF AN APPLICATION BY PHILLIP RUSSELL LTD
Licensing applications – application of County Court Rules when considering validity of notice of objection – suitability of the premises – vicinity – relevance of selection and competition when considering adequacy.
An appeal from a decision by His Honour Judge Gibson QC refusing to grant an application for the provisional grant of an off-licence under Article 6(1)(b) of the Licensing (NI) Order 1990 for premises at 305 Holywood Road, Belfast. A letter was sent to the clerk of the court containing a petition signed by 142 adult members of a local church stating their objection to the application and a representative of the church also informed the applicant of this by letter. On appeal a number of issues were raised.
(a) Whether the letter sent on behalf of the objectors was a valid notice of objection?
(b) The attitude of the court in the event that a valid notice of objection had not been lodged.
(c) Whether consideration of the impact that an application may have on the neighbourhood is relevant in assessing the suitability of the premises?
(d) Whether selection and competition are relevant when considering adequacy?
Held.
1. (a) Although the letter sent by the objectors to the applicant merely informed the applicant that a petition objecting to the application had been sent to the clerk of the court and was not in Form 204 of the County Court Rules as required by para 2(7) of Part II of Schedule 1 to the 1990 Order, Order 43 rule 14 of the County Court Rules (NI) 1981 applied and as the letter of the applicant was “not manifestly calculated to mislead or injuriously prejudice” the appellant, non-compliance with Form 204 would not render the notice invalid.
(b) Although the letter registered that the objectors opposed the application and had not stated their “intention to object”, as the letter referred to the petition having been submitted to the clerk of the court the essential purpose of putting the applicant on notice of an intention to object was thereby achieved.
(c) Para 6 of Schedule 1 of the 1990 Order imposed upon an objector the obligation not only to serve an applicant with a notice of his intention to object but also to state briefly his grounds for so doing. This obligation was mandatory and was fatal to the locus standi of the objectors. In re O’Loughlin’s Application [1985] NI 421 followed.
2. The applicant is obliged to satisfy the court (i) that the applicant is a fit person to hold a licence; (ii) that the premises are suitable for the sale of intoxicating liquor; and (iii) that the number of off-licences in the vicinity is inadequate. This obligation is quite independent of any opposition from local residents and the lack of such opposition will not make the court any less scrupulous in its examination of the evidence proffered by an applicant in purported fulfilment of its obligations under the Order. A fortiori, where objectors have been deprived of the opportunity to present their objection on what is an essentially technical ground, the court should be careful to ensure that evidence of sufficient weight and calibre to discharge the onus placed on the applicant has been adduced before granting the licence.
3. When considering whether premises are “suitable to be licensed for the sale of intoxicating liquor” under Article 8(2)(b) of the 1990 Order, in order to be suitable the premises must be suitable on a wider basis than mere structural soundness or layout. In other words “suitability” is to be judged in the context of a general system of control of the sale of alcohol to the public. Some investigation into the effect that locating off-licence premises in a particular place will have on the locality is a legitimate aspect of the inquiry as to the suitability of the inquiry as to the suitability of the premises. That is not to say that the character of the neighbourhood alone will determine whether premises are suitable. It is but one of a number of factors which should be taken into account in the general examination of the suitability of the premises. The fact that off-licence premises would appear to be out of keeping with a neighbourhood will not normally be sufficient, of itself and without more, to condemn an application. R (Marshall) v Justices of County Tyrone [1895] 2 IR 174; R (Leslie) v Monaghan Justices [1901] 1LTR 35; R (Nicholl) v Recorder of Belfast [1965] NI 7; Magill & Anor v Bell & Others [1972] NI 159; Wheatfield Inns (Belfast) Ltd v Croft Inns Ltd [1978] NI 83 and Donnelly v Regency Hotels Ltd [1985] NI 144 considered.
4. Consideration of such factors as the selection of drinks available and the need for competition to ensure a better service with the consumer should not be seen as displacing adequacy as the determining criterion but merely as facets or aspects of that concept. An applicant seeking to demonstrate that it will provide similar wines at cheaper prices or a wider range of wines than other outlets has to provide as a minimum a reasonably detailed analysis of the overall range of drinks, facilities and services available from a competitor and contrast them with those which the applicant says it will provide in order to constitute an argument of substance on the issue of adequacy. This requirement has not been met in the present case. Woods v Mayne [1982] 16 NIJB 9; Stewart’s Supermarkets v Sterritt & Ors [1985] NI 159; Stewart’s Supermarkets Ltd v The Wine Merchants Ltd [HC] 1992 (MacDermott LJ, unreported) considered.
5. Having considered that both existing off-licences in the vicinity were close together in an area well removed from much of the housing in the hinterland of the shopping area where the proposed premises were located and had severely limited parking facilities the court was satisfied that the number of existing off-licences in the vicinity was inadequate, allowed the appeal and ordered the provisional grant of a licence.
HC [1993] Kerr J (unreported)
