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Hannigan Holdings Ltd, Re [2000] IESC 9; [2000] 4 IR 369; [2000] 2 ILRM 438 (13th April, 2000)
THE
SUPREME COURT
261/99
Denham
J
Murphy
J
McGuinness
J
IN
THE MATTER OF THE COURTS OF JUSTICE ACT, 1936, SECTION 38 (3)
AND
IN THE MATTER OF THE LICENSING ACTS, 1833-1937
AND
IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
AND
IN THE MATTER OF THE INTOXICATING LIQUOR ACT, 1927, SECTION 12
AND
IN THE MATTER OF THE LICENSING (IRELAND) ACT, 1902, SECTION 6 (AS AMENDED BY
THE INTOXICATING LIQUOR ACT, 1960, SECTION 4)
AND
IN THE MATTER OF AN APPLICATION BY HANNIGAN HOLDINGS LIMITED
APPLICANT/
APPELLANT
Judgment
of Mr Justice Francis D Murphy delivered the 13th day of April, 2000
(nem.
diss.)
1. This
matter comes before the Court by way of a Consultative Case stated by Kearns J
pursuant to the provisions of s. 38 (3) of the Courts of Justice Act, 1936. The
questions raised by the Case concern the proper interpretation of the Licensing
(Ireland) Act, 1902, s.6 as amended by the Intoxicating Liquor Act, 1960, s.4.
2. The
history of the matter is set out fully in the case as stated but the material
facts may be summarised as follows. Hannigan Holdings Ltd (Hannigan Holdings)
applied to the Circuit Court at Naas by notice dated the 8th day of April,
1988, pursuant to s.6 of the Act of 1902 for, inter alia, a certificate
entitling them to receive a new seven day publicans on licence in respect of
certain premises therein described as comprising:- [*2]
"(a) Existing
licensed premises known as the Rye Vale Tavern situate at; No: 3, Pound Street,
in the Civil Parish of Leixlip, Barony of North Salt, Townland of Leixlip and
County of Kildare.
(b) A
new extension adjoining the said Licensed Premises and situate at No: 4 and No:
5, Pound Street, in the said Civil Parish, Barony, Townland and County as
aforesaid."
3. The
application was opposed by a number of residential objectors, certain licensed
vintners and the Garda Siochana. The application was refused by His Honour
Judge Raymond Groarke for the reasons set out in a reserved judgment dated the
14th day of December, 1998. The order and judgment of the learned Circuit Court
Judge was appealed to the High Court and in the course of hearing that appeal
Kearns J decided to state a Consultative Case and to pose for the consideration
of this Court the questions raised therein.
4. The
premises in respect of which the new licence is sought are delineated on the
plans annexed to the Case Stated. They comprise the premises on the said plans
coloured blue (the blue buildings) and the premises coloured yellow (the yellow
buildings). An underground tunnel connects the blue buildings to the yellow
buildings. The tunnel is identified on the ground floor plan by two red broken
lines. The blue buildings represent the original licensed premises together
with a substantial extension to the rear which was constructed during the year
1990/1991 and licensed by the Circuit Court as so extended in that year
pursuant to s.6 of the said Act of 1902. In October, 1996, planning permission
was obtained by Hannigan Holdings to replace derelict buildings with what are
now the yellow buildings. A tunnel was [*3] then constructed from the blue
buildings to the yellow buildings and planning permission obtained for that
development. The Case Stated records that the tunnel was constructed in
pursuance of legal advice. In my view that is not a material consideration.
5. What
is apparent from the plans exhibited in the Case Stated, and more particularly
from an aerial photograph handed into Court for the purposes of illustration,
is that the blue buildings are separated from the yellow buildings by a roadway
leading to a substantial private car park to and from which there is no other
vehicular access or egress. The roadway separating the premises is of
considerable width. It permits motor cars to be parked perpendicular to the
blue buildings and yet allows ready access to the car park. The nature, purpose
and effect of the relationship between the blue buildings and the yellow
buildings and the connection between them is set out in three paragraphs of the
Case Stated as follows:-
"4 The
Tunnel is approximately 7 feet wide and 130 feet long underground. However it
is conceded that the Tunnel is not designed or intended or suitable for use by
the public to move underground between the Blue and Yellow buildings and its
function has become or is intended as an additional cellar storage space to the
pre-existing cellar of the Blue Buildings and also as a service passageway for
goods delivery and it would be used by Hannigan Holdings staff only.
5 It
is the expressed intention of Hannigan Holdings to move the disco/nightclub
business which is presently carried on in the
"Existing
Function Area"
in
the
front section of the ground floor of the Blue Buildings over to the Yellow
Building and to cease the disco/nightclub business in the Blue Building in
accordance with condition [*4] 1 of the Second Schedule to the Planning
Permission Register 95/1528. Thereafter it is the expressed intention of
Hannigan Holdings to change the business in the
"Existing
Function Area"
in
the
front section of the ground floor of the Blue Building into a more formal
dining business with bar facilities. These events will not occur unless
Hannigan Holdings succeeds in this Licensing Application.
7 It
was admitted in evidence before the High Court that an ordinary member of the
public who was drinking in the rear ground floor section of the Blue Building
and who wanted to attend the proposed new disco in the Yellow Building would
have to walk out of the Blue Building into the open air, cross the footpaths
and entrance/exit driveway of the car park and then enter the Yellow Building
for that purpose."
6. In
these circumstances the learned High Court Judge posed nine questions; eight of
which related directly to the phrase
"premises
attached to or adjoining premises licensed for the sale of intoxicating liquors"
(and
the
component parts thereof) as it occurs in s.6 of the Act of 1902 as amended by
the Act of 1960 s.24. That Section (as amended) reads as follows:-
"Nothing
in this Act shall operate to prevent the granting of new licenses where the
licensing authority thinks fit, to premises attached to or adjoining premises
licensed for the sale of intoxicating liquors at any time during the period of
five years immediately before the day on which notice of application for the
grant of a certificate entitling the holder thereof to receive any such new
licenses given pursuant to Rules of Court, to the appropriate County Registrar
or to the appropriate District Court Clerk as the case may be, provided always
that such new licenses as last herein [*5] before mentioned shall only be
granted in order to render the said licensed premises more suitable for the
business carried on therein."
7. The
Gardai had opposed the application for the new licence in the Circuit Court on
the ground that the yellow buildings were not premises
"attached
to or adjoining premises licensed for the sale of intoxicating liquor
"
and also for reasons connected with the manner in which the licensee carried on
his business in his existing premises (the blue buildings). However, the
argument specifically recorded in the Case Stated on behalf of the Gardai was
based on the layout of the two buildings and the entrances and exits thereto as
a result of which it was contended on behalf of the Gardai that:-
"In
supervising these premises under the Licensing Acts they (the Gardai) would
have to treat the blue and yellow buildings as separate distinct buildings”
8. The
other objectors argued that the yellow buildings and the blue buildings were
separate and distinct buildings and that the yellow buildings could not be
regarded as “
attached
to or adjoining"
the
existing premises. In particular it was argued that the words
"attached
to or adjoining"
in
s.6 of the Act of 1902 (as amended) could not be construed in isolation from
the terms of the proviso to that Section. The questions posed by the learned
trial Judge at the request of the parties were as follows:- [*6 ]
1 In
Section 6 of the said Act of 1902 are the words
"attached
to or adjoining"
to
be read and construed disjunctively as a matter of law?
2 What
was the proper construction of the word
"or"
in
the context and
intentment
of
Section 6 of the said Act of 1902?
3 Are
the words
"attached
to or adjoining"
in
Section 6 of the said Act of 1902
to
be given any special meaning or construction having regard to the context in
which
they
appear in the Licensing Acts 1833 -1995 as a whole and/or in the terms of the
whole
of
Section 6 of the said Act of 1902 including the proviso therein?
4 If
the answer to question [3] is in the affirmative what special meaning or
meanings
should be given to the words "in the light of the proviso contained in
5 Alternatively
is the proviso a necessary element in the proper construction of
the
said words?
6 Must
the premises proposed to be licensed, being the Blue Buildings and the
9. Yellow
Building pursuant to Section 6 of the said Act constitute one distinct whole
capable of being licensed as one unit?
7 Having
regard to the answers given to the previous questions are there any
parameters
or restrictions or conditions which should as law be applied to the proper [*7
] construction of the words
"attached
to or adjoining"
in
Section 6 of the said Act of 1902 as for instance by reference to the purpose
and intentment of the said proviso.
8
Having
regard to the answers given to the previous questions am I entitled as a matter
of law to regard the Blue and Yellow Buildings in this case as being
"attached
to
”
each other within the meaning of those words in
Section 6 of the said Act of
1902.
9 Having
regard to the answers given to the previous questions am I entitled as a matter
of law to regard the Blue and Yellow Buildings as
"adjoining"
each
other within the meaning of that word in
Section 6 of the said Act of 1902.
10. The
learned trial Judge recognised that the proviso would be fundamental in any
event in determining whether or not a licence should be granted in the present
case. He dealt with the matter in the following terms:
"I
am mindful that the statutory proviso contained in Section 6 of the said Act of
1902 may have a bearing on the issue but that the contents of the said
statutory proviso will, in addition, be a separate consideration on the hearing
of this appeal.”
11. In
fact Counsel appearing for both sets of objector conceded that the words
"attached
to or adjoining"
should
be read disjunctively. In my view that concession was necessarily and properly
made and I would answer the questions raised on that issue accordingly. [*8 ]
12. Before
turning to the propositions of law which have been established by successive
decisions of Courts in this country. I think it would be helpful to record that
s.6 of the Act of 1902 as originally enacted provided that:-
"Nothing
in this Act shall operate to prevent the granting of new licences, where the
Licensing Authority thinks fit, to premises attached to or adjoining premises
licensed for the sale of intoxicating liquors at the date of the passing of
this Act; provided always that such new licence as last herein before mentioned
shall only be granted in order to render the said licensed premises more
suitable to the business carried on therein.”
In
R(Kennedy)
v. Justices of Antrim
[1903]
2 IR 671 Palles CB said of
Section 6 aforesaid:-
“The
latter Section contemplates that the premises which, after the termination of
the proceedings, are licensed, shall include premises previously licensed. The
words 'licensed premises' in the clause at the end of the Section, 'in order to
render the said licensed premises more suitable for the business carried on
therein' mean the premises formerly licensed”.
Again,
in
R(Blackburne)
v. Justices of County Down
[ 1904
]
ILRM
67 Palles CB in his judgment in the Kings Bench Division dealing with an
application for a new licence under
s.6 of the new Act of 1902 stated as
follows:- [*9 ]
'The
proviso of Section 6 is that any such new licence shall only be granted in
order to render 'the said licensed premises' which means the premises formerly
licensed, more suitable for the business carried on therein. ‘Therein'
means in the formerly licensed premises."
13. Nothing
was said by the other judges of the Kings Bench Division or by the Court of
Appeal to cast doubt upon the correctness of that analysis.
That
the
'"licensed
premises"
referred
to
in
s.6 were those previously licensed to which non-licensed adjoined or
attached was confirmed by O'Flaherty J, in delivering the judgment of this
Court in
Oshawa
Limited
[1992] 2 IR 425, when he said, at page 435:-
"A
reading of Section 6 of the Act of 1902 makes it clear, I believe, that there
must be two elements present, viz, a licensed premises and an existing,
adjoining unlicensed premises. The Section does not appear to contemplate the
grant of a new licence in respect of the amalgamation of two existing licensed
premises. The whole tenure of the Section envisages licenses premises being
amalgamated with what had up until them been unlicensed premises. In a case
where it was sought to have the licence applicable only to what had previously
been unlicensed premises this was held not to be possible and the amalgamated
premises had to include the previously licensed premises: R(Kennedy) v.
Justices of Antrim [1903] 2 IR 671. The reference in the Section to the said
licensed premises would be meaningless if both premises were licensed
premises.”
[*10]
In
re Moylan
[
1947] Ir. Jur. Rep. 3 an application was made pursuant to
s.6 of
the Act of 1902
for
a new licence in respect of premises a portion of which was already licensed
and the remainder comprising a newly erected extension. It had been explained
that the purpose of the extension was to provide space for storage and
facilities for central heating equipment. Dixon J was satisfied to grant the
new licence provided that the extension was used for those purposes - which
would of course render the existing licensed premises more suitable provided
that the extension itself was not used for drinking purposes. A more detailed
analysis of the purpose and effect of
s.6 aforesaid was made by Haugh J in
In
re Brannigan
[1947]
Ir.
Jur. Rep.1. In that case the
"existing
licensed premises"
consisted
of
the ground floor and cellars of a multi-storey building. The licensee sought to
obtain a licence in respect of the entire premises. Clearly the upper floors of
the buildings did adjoin and were attached to the existing licensed premises.
The issue was what would be the purpose and effect of granting the extended
licence. The licensee argued, and Haugh J accepted, that the provision of
improved sanitary accommodation and cellarage would make the existing premises
more suitable for the business carried on therein. However, the Applicant
further submitted that the improved facilities would attract a larger number of
customers than the thirty-five patrons then supporting the business and so he
must have an additional amount of drinking space to prevent overcrowding. It
was that argument that Mr Justice Haugh rejected. His reason for doing so was
stated simply:-
"I
might just as well give the Applicant a new licence for premises across the
street.”
[*11]
"The
Ormond Hotel Case ", (The State (O'Malley)) v. Circuit Court Judge of the
Dublin Circuit Court
[1934]
68 ILTR 79 established that there could be cumulative or successive
applications under
Section 6 aforesaid. As Kennedy CJ pointed out the power to
issue new licenses under that section was not exhausted by one application nor
was it limited to one case of alteration or expansion. What had happened in
that case was that the premises originally licensed in 1902 consisted of Number
8 Ormond Quay (and not Numbers 8 and 9 as had been understood by the judges in
the Circuit Court and High Court). The licence was extended under
the Act of
1902 to Number 9. The combined premises then comprised the Ormond Hotel. In
1930 the proprietor obtained possession of Number 10 and started the
construction of a modem hotel comprising Number 8, 9 and 10. In 1931 the
licence was extended again pursuant to
the Act of 1902 to Number 10. The
proprietor (Mr O'Malley) then acquired Number 11 and reconstructed the entire
premises comprising Numbers 8, 9, 10 and 11 as a more modern hotel. In those
circumstances the learned Circuit Court Judge, His Honour Judge Davitt, made an
order which recited the following:-
"It
appearing
that
the premises at Number 11, Upper Ormond Quay adjoin and are attached to Number
10 but are not physically attached to and do not adjoin Numbers 8 and 9; the
Court being therefore of opinion that premises Number 11 were not premises
attached to or adjoining premises licensed at the date of the passing of the
Licensing (Ireland) Act, 1902 within the meaning of Section 6 of the said Act,
doth make no rule on the application for default of jurisdiction. "
14. The
applicant sought and obtained a conditional order of certiorari. Cause was
shown on behalf of the Circuit Court Judge and the Attorney General and also on
behalf of two [*12] objectors. The cause shown was unanimously allowed by the
Divisional Court. O'Byrne J expressed his judgment succinctly as follows:-
"The
portion of the premises representing Number 11 could not be said to be attached
to or adjoining Number 8 within the meaning of this Section."
15. The
judgment of the High Court was unanimously reversed by the former Supreme Court
for the reasons explained by Fitzgibbon J in the following terms:-
“....the
alternative application for a new licence in respect of the whole premises
constituting the Ormond Hotel was correct inform. That being so, it was
possible to
hold
that Number 11 Ormond Quay was attached to Number 8 - although it would be
difficult to say it adjoined Number 8 - assuming the Licensing Authority was
satisfied as to its structural alteration or addition. Number 11 could then be
brought within the operation of Section 6 by showing that, by
intercommunication and otherwise, it formed a single entity with the other
three houses from the point of view of carrying on more suitably the original
business of Number 8. If this were approved to the satisfaction of the
Licensing Authority and if the other condition of Section 6 were fulfilled, he
was of opinion that the Section conferred jurisdiction to issue a new licence
to the whole premises."
16. In
his judgment Murnaghan J stated:- [*13]
"The
grant of such a new licence was not limited by the Section to premises which,
at the passing of the Act, were attached to or adjoined to the premises
originally licensed, and the Section should be read as referring to premises
which were attached to or adjoining the original premises at the time of
applying for a new licence.
The
words
"adjoin
" and "attach"
have
in
ordinary use a wide connotation.
However,
in
Lightbound
v. Higher Bebington Local Board
[1885]
16 QBD 577 the Court of Appeal had to consider whether for the purposes of the
Public Health Act, 1875, certain premises were
"fronting
or adjoining or abutting"
on
a particular street. The following extract from the judgment of Bowen LJ (at
page 584) is helpful:-
"In
construing such words as front, 'abut" and 'adjoin', in this Act of Parliament,
actual contiguity is not necessary in order that the terms should be fulfilled
.....In construing the words you must look at the subject matter of the Section
and see what is its scope and object."
17. That
indeed was the rule of construction applied by O'Higgins J (as he then was) in
McElvaney
v. The Licensing Acts
(Unreported
delivered on 2nd April, 1974). In that case the [*14] applicant sought a
declaration under a. 15 of the Intoxicating Liquor Act, 1960, that certain
premises at Dawson Street in the town of Monaghan would be fit and convenient
to be licensed pursuant to s.6 of the Act of 1902. The applicant was at the
time of application the owner of licensed premises known as the Courthouse Bar
in Church Street, Monaghan. The application was to extend the then existing
licence to premises of the applicant in Dawson Street, Monaghan. No part of the
premises in Church Square were attached to the premises in Dawson Street and
the two buildings were separated from each other by other buildings and by two
open spaces or gardens. The argument on behalf of the applicant appears to have
been that the open spaces which adjoined the two buildings bordered one on the
other. It was submitted that this was sufficient compliance with s.6. Having
considered the legislation as a whole and the relationship of the word
"attached"
to
the word
"adjoin”
the
learned
Judge went on to express his view in the following terms:-
"In
my view therefore 'premises' in this section
(s.6)
means a construction or building and the section envisages two buildings
attached to one another or so close to one another as to be described aptly as
adjoining."
18. Later
in his judgment the learned Judge made the following helpful observation:-
"It
would seem to me to be impossible to regard two buildings comparatively widely
separated by other buildings and by open space as one distinct whole capable as
being licensed as one unit.”
[*15]
19. Before
attempting to apply to the present case of the principles established by the
decisions cited above it is important to consider one further issue of law,
namely, the extent to which recourse may be had to a proviso for the purpose of
interpreting terms contained in the substantive part of a section of an Act.
Counsel on behalf of Hannigan Holdings relied on the decision of the House of
Lords in
The
Guardians of the Poor of the West Derby Union v. The Metropolitan Life
Assurance Societ
y
[1897] AC 647 to preclude reliance on a proviso for the purpose. Counsel on
behalf of the Gardai relied on the decision in the House of Lords in
Jennings
v. Kell
y
[1940] AC 206 to permit it. In the West Derby Union Case, the House of Lords
were considering the proper interpretation of s.2 of the Poor Law Loans Act of
1871 and in particular whether that section permitted the Poor Law Board to
redeem a security as against an unwilling creditor. The Section itself gave no
such power and the proviso thereto was, at best, ambiguous. Lord Watson
explained (at page 652):-
“....I
am perfectly clear that if the language of the enacting part of the statute
does not contain the provisions which are said to occur in it, you cannot
derive these provisions by implication from a proviso. When one regards the
natural history and object of provisoes, and the manner in which they find
their way into Acts of Parliament, I think your Lordships would be adopting a
very dangerous and certainly unusual course if you were to import legislation
from a proviso wholesale into the body of the statute, .... "
20. Whilst
that part of the sentence supports the argument propounded on behalf of
Hannigan Holdings the sentence itself goes on to say:- [*16]
“...... although
I perfectly admit that there may be and are many cases in which the
terms
of an intelligible proviso may throw considerable light upon the ambiguous
import of statutory words. "
In
Jennings
v. Kelly
the
House of Lords had under consideration the proper construction of the
Intoxicating Liquor Act (Northern Ireland) Act, 1923, s.9 and the proviso
thereto. That Section and the proviso contained somewhat confusing, and perhaps
conflicting, references to population changes in different urban areas which
were material to the granting of new intoxicating liquor licenses. In those
circumstances Lord Russell of Killowen dealt with the disputed interpretation
problem (at page 220) in the following terms:
"I
do not agree with the contention of the Appellants, which appears in the second
reason in their case, namely, that 'it is not a right method of construction to
use a proviso to control or alter the operative effect of the words preceding
it'. That is frequently the very function of a proviso, namely, to include
within the scope of the preceding words something which prima facie would not
fall within it, or to exclude something which prima facie would so fall.
Although a proviso maybe incapable of putting upon preceding words a
construction which they cannot possibly bear, it may without doubt operate to
explain which of two or more possible meanings is the right one to attribute to
them."
[*17]
21. It
seems to me that the Act of 1902 as amended by the Act of 1960 provide, and the
Authorities discussed above establish, the following propositions:-
1
A new licence may be granted to premises consisting of non licensed premises
together with premises to which they are attached or adjoin and which are
currently licensed.
2
The entire of the premises to which the new licence may be granted must form
"a
single entity"
and
must
be
"regarded
as a whole "
and
capable
of being licensed as
“one
unit"
3
"Attached"
required
physical connection.
"Adjoin
"
does not. On the other hand premises cannot be said to adjoin one to another
for the purposes of s.6 aforesaid unless they are so “
close
to one another as to be described aptly as adjoining".
4
The attachment or adjunction of the unlicensed premises to licensed premises
must be such as to have the purpose and potential of rendering the premises
currently licensed more suitable for the business carried on therein. Whilst
the concept of
"suitability"
of
premises
as licensed premises might properly be updated, the clear provisions of the
1906 Act prohibiting in general against the granting of new licenses is a
legislative requirement which the Courts do not have the power to alter or
dilute. [*18]
5
Licensed premises are not rendered more suitable for the business carried on
therein merely by the provision of alternative accommodation for the patrons of
the existing licensed premises.
6
Where one building (the first building) is attached to a second, which is in
turn attached to a third, it does not follow that the first is likewise
attached to the third.
7
Not every form of attachment by one building to another would meet the
requirements of s.6 aforesaid. Buildings significantly removed one from the
other might be attached by means of steel girders or supporting buttresses but
such form of attachment would not come within the provisions of the section as
the attachment could do nothing to render more suitable the existing licensed
premises.
8
If one building is separated from a licensed premises by a construction which
is not itself licensed (or intended to be licensed) it would be difficult to
see how the first building could render the second building more suitable as
licensed premises or how the two buildings together could be treated as one unit.
22. With
regard to the particular questions which were raised by the Case Stated in
response to the different demands of the interested parties I would comment as
follows
:
Questions
1 & 2:
All
of the parties are agreed that the words
"attached
to or adjoining"
in
s.6 of the Act of 1902 must be read disjunctively. [*19]
Questions
3, 4, 5 & 7:
The
words
"attached
to or adjoining"
in
s.6 aforesaid should be construed in the context of the proviso thereto and
given the special meaning and construction as set out in the foregoing judgment.
Question
6:
A
licence granted pursuant to s.6 of the Act of 1902 as amended by the Act of
1960 must relate to premises capable of being licensed as one unit.
Questions
8 & 9:
As
the replies to these questions would be determinative of the issue pending in
the High Court I am of the view that it would be a usurpation of the functions
of that Court to offer answers thereto. Hopefully the guidance provided in
reply to the other questions will assist the learned High Court Judge in
reaching an appropriate decision thereon.
© 2000 Irish Supreme Court
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