In the matter of Hannigan Holdings Limited (applicant/appellant).

Licensing - Existing licensed premises - Statutory interpretation - Objections - Appeal - Whether new licence could be granted in respect of existing premises and new premises - Whether new premises "attached to or adjoining existing premises" - Whether new premises could be considered to be "single entity" - Whether issue of new licence would render existing premises "more suitable"["]

for carrying out of business - Licensing (Ireland) Act 1902, section 6 - Intoxicating Liquor Act 1960, section 24 - Courts of Justice Act 1936. The Supreme Court (Mrs Justice Denham, Mr Justice Murphy, and Mrs Justice McGuinness); judgment delivered 13 April 2000.

In deciding whether a licence could be granted in respect of an existing licensed premises and an additional unlicensed premises for the purposes of section 6 of the Licensing (Ireland) Act 1902, a court must consider whether the additional premises can be said to be "attached to or adjoining" the existing premises. In addition the entire proposed new premises must be capable of forming a single entity. The words "attached to or adjoining" as set out in section 6 of the Licensing (Ireland) Act 1902 must be read disjunctively. Attachment requires physical connection whereas adjoining does not. Premises cannot however be said to be adjoining unless they are so close to one another as to be described aptly as adjoining. In granting such a licence in respect of same, the premises currently licensed must be rendered more suitable for the carrying out of business. The concept of "suitability" may require legislative updating and is a legislative requirement which the courts do not have the power to alter or dilute.

The Supreme Court so held in answering a number of questions referred by the High Court by way of case stated, and in remitting the matter to the High Court for final determination.

John Gordon SC and Constance Cassidy BL for the applicant; Patrick J. Geraghty SC and Carol O'Kennedy BL for the Garda Siochana; Brian Dempsy SC and Thomas Morgan BL for the residential objectors.

Mr Justice Murphy outlined the facts of the case. The applicant had sought a seven day publican's licence pursuant to section 6 of the Licensing (Ireland) Act 1902 ("the 1902 Act") in respect of premises a portion of which was at present licensed and another portion of which was unlicensed. The application was opposed by a number of objectors. In the Circuit Court the application was refused and this refusal was appealed to the High Court. In the High Court Mr Justice Kearns posed a number of questions in the form of a consultative case stated for the Supreme Court.

The main issues concerned whether the entire premises must form a single entity in order for the new licence to issue and also the manner in which the words "attached to or adjoining" must be construed. The premises were themselves situated in the town of Leixlip. The presently licensed premises ("the blue buildings") were situated alongside the unlicensed premises ("the yellow buildings") and a licence was sought in respect the entire premises.

Mr Justice Murphy stated that it was apparent that a roadway separated the blue and yellow buildings. The roadway led to a substantial private car park which permitted the parking of cars perpendicular to the blue buildings. Mr Justice Murphy also referred to the fact that there was an underground tunnel which connected the blue and yellow buildings. The case stated recorded that the tunnel had been constructed pursuant to legal advice but Mr Justice Murphy stated that this fact was not a material consideration. The tunnel was intended to be utilised as storage space and was not intended for public use. The applicant was intent on moving the existing nightclub business from the blue buildings to the yellow buildings. Thereafter the applicant intended to develop the vacated portion of the blue buildings into a more formal dining area. These developments were dependent on the applicant receiving the licence in question.

In evidence the applicant admitted that a member of the public who was drinking in the blue buildings and who wished to attend the proposed new disco in the yellow buildings would have to walk out into the open air and cross the roadway, which led to the car park, in order to do so.

Mr Justice Murphy stated that the Garda had opposed the application for a new licence on the grounds that the yellow buildings were not premises "attached to or adjoining premises licensed for the sale of intoxicating liquor". In addition, it had been advanced in the case stated that the Garda, in supervising the premises, would have to treat the blue and yellow buildings as separate distinct buildings. The other objectors argued that the yellow buildings could not be regarded as "attached to or adjoining" the existing premises. Mr Justice Kearns had formulated a number of questions in the case stated that were specifically concerned with the construction and interpretation of the words "attached to or adjoining". In particular the learned High Court judge specifically asked whether the blue and yellow buildings could be regarded as attached to or adjoining each other for the purposes of section 6 of the 1902 Act.

Mr Justice Murphy stated that counsel appearing for both sets of objectors had properly conceded that the words "attached to or adjoining" should be read disjunctively. Mr Justice Murphy then considered the case law pertaining to the issues. In this regard Mr Justice O'Flaherty had stated in the case of Oshawa Limited [1992] 2 IR 425 that for the purposes of an application pursuant to section 6 of the 1902 Act the section appeared to contemplate the amalgamation of a licensed premises and an existing, adjoining unlicensed premises. Mr Justice Murphy also referred to a judgment of Mr Justice Haugh in In Re Brannigan [1947] Ir Jur Rep 1. Mr Justice Haugh had in fact declined to issue a licence in respect of an entire premises where formerly only the ground floor and cellar area had been licensed. The licensee had contended that the improved sanitary accommodation and cellarage would make the existing premises more suitable for the carrying out of business therein. Mr Justice Haugh accepted this argument but rejected the contention that the improved facilities would attract a larger number of customers and that thus additional drinking space was required to prevent overcrowding. Mr Justice Haugh was of the view that if he were to accept such an argument "I might just as well give the applicant a new licence for premises across the street".

Mr Justice Murphy also referred to The State (O'Malley) v Circuit Court Judge of the Dublin Circuit Court [1934] 68 ILTR 79 which concerned four adjoining buildings. The case established that cumulative or successive applications could be brought under section 6 of 1902 Act. In that case a license was in existence in respect of numbers 8 and 9, Ormond Quay. The owner was then granted a licence in respect of the combined premises including number 10 which had recently been acquired. The owner had subsequently acquired number 11 and once more sought a licence in respect of the combined premises and was refused same. In the High Court Mr Justice O'Byrne stated that number 11 could not be said to be attached to or adjoining number 8. The Supreme Court reversed the judgment holding, inter alia, that number 11 could 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." In the case of McElvaney (High Court, Mr Justice O'Higgins, 2 April 1974, unreported), a licence had been refused in respect of buildings separated from each other by other buildings and two open spaces. Mr Justice O'Higgins had stated that "in my view therefore `premises' in this section 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". In addition the learned judge observed that "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."

Furthermore Mr Justice Murphy stated that care must be taken in attempting to have recourse to a proviso in order to interpret terms contained in the substantive part of section of a statute and in this regard referred to the judgment of Lord Russell of Killowen in Jennings v Kelly [1940] AC 206, at page 220. Lord Russell had stated, inter alia, that "although a proviso may be incapable of putting upon preceding words a construction which they cannot possibly bear, it may without doubt operate to explain which of the two or more possible meanings is the right one to attribute to them."

In the light of the foregoing Mr Justice Murphy made a number of findings. A new licence may issue in respect of a premises consisting of an unlicensed premises together with premises to which they attach to or adjoin and are currently licensed. Such a new premises must be capable of forming a single entity and as such must render the premises currently licensed more suitable for the carrying out of business. Attachment requires physical connection whereas adjoining does not although a premises can not be said to adjoin one another unless they are "so close to one another as to be described aptly as adjoining". 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. Where one building is attached to a second and the second to a third it does not automatically follow that the first is likewise attached to the third. Buildings significantly removed from one another might be attached to each other by steel girders but such form of attachment would not come within the relevant section as the attachment would not render the existing licensed premises more suitable for the carrying out of business. If one building is separated from a licensed premises by a construction which is not 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 or how the two buildings together could be treated as one unit. Mr Justice Murphy was hopeful that the replies thus made in answer to the case stated would enable the High Court to reach a appropriate decision.

Mrs Justice Denham and Mrs Justice McGuinness concurred.

Solicitors: L. C. O'Reilly Timmins & Co (Kildare) for the applicant; Chief State Solicitor for the Garda Siochana; Brendan O'Mahony & Co (Kildare) for the residential objectors.

Correction

Vera O'Connor (applicant) v The Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin

In the report of the above case, published on 19 June 2000, the solicitor for the respondents was Timothy O'Keefe (Dublin Corporation), and not Timothy J. C. O'Keefe & Co, as erroneously stated in the published report.