MICHAEL FERGUS LAVERY Applicant, CRAIGAVON BOROUGH COUNCIL AND OTHERS, Objectors.

Refusal of an off-licence for premises at 22-26 Parkview Street, Lurgan.

Reference to grant of planning permission in newspaper notice – Article 8(2)(d) Licensing (Northern Ireland) Order 1990. When the required notices were published in the newspapers it was correctly stated that planning permission was not required for the premises. However between the publication of the notices and the hearing it was decided to sub-divide the premises internally and use part of the premises as an off-licence and the remainder as a retail unit. This required planning permission which had been granted by the hearing. It was argued that the original notices were defective and the application should be refused.

Held.

The object of the legislation is to ensure that an applicant either shows that he does not need planning permission for what is then envisaged, or that he has the requisite planning permission at the time that he lodges his notice. The applicant would either be confined to his original map or permitted to amend the map to show the unused part of the site as a retail unit as now planned. Obiter, the court has a right to prevent unauthorised attempts to circumvent the Order by alteration of the maps in a suitable case.

Subsisting licence – Article 8(3), Schedule 2. The objectors argued that where a licence is put forward as a subsisting licence, the applicant cannot rely upon the objective facts as contained in the licence and the petty sessions record but must deal with each transfer or renewal or protection order on the licence even where they appear from the licence and petty sessions records to be in order.

Held.

When properly proved by the licensee and clerk of petty sessions the documents are prima facie evidence of their contents and represent valid transactions in the absence of evidence to the contrary. When the licensee gives evidence of trading up to the date of the application then it is for the objectors, whether by cross-examination of the applicant’s witnesses or by calling evidence, to raise any issue which might cast doubt upon documents which ostensibly appear to be valid. Once such an issue is raised, the applicant must deal with it in order to satisfy the court that the licence is “subsisting”.

Inadequacy – vicinity considered.

Judge Curran QC – Craigavon County Court – 1/7/1994.