The Gazette 1987

JU LY/AUGUST

1987

GAZETTE

sification of use can be a material change of use and an increase in vehicular traffic was relevant in deciding if there had been a material change of use. In this case the evidence was conclusive that the change from an hotel licence without a public bar to an ordinary 7 days licence with a public bar had changed the whole character of the business carried on and had caused an increase in traffic, parking, noise and other unsatisfactory changes in amenities for the local residents. Consequently, there were ample grounds for the decision of An Bórd Pleanála. Alterations to Licensed Premises It may come to light during the course of the conveyancing trans- action that, down through the years, the licensed premises have been altered once or more times. The effect of any such alterations on the validity of the licence falls to be considered under the Licensing Code and the Planning Acts. The Licensing Code When alterations are carried out on licensed premises the question of whether a new licence should be applied for in the Circuit Court pursuant to the provisions of section 6 of the Licensing (Ir.) Act 1902, or whether a renewal certifi- cate granted by the District Court would suffice, must be considered. The test to be applied in such cir- cumstances is well-settled: are the premises, as altered, "substantially the same" as the previously licensed premises? If the Justice holds that they are, then he has jurisdiction to renew (or transfer) the licence (R. -v- Bradford J.J. (1896) 60 JP 265). The older authorities clearly show: (i) that the discretion of the Justice as to what are "substantially the same" premises is very elastic, and (ii) that the question is one of fact, not law, and the High Court will not intervene unless it is quite clear that there is no evidence to support the conclusion of fact. See cases cited at O'Connor's Justice of the Peace, vol. II, pp. 7 0 6 - 7 0 8 . When alterations have been carried out to licensed premises it is submitted that the proper course is to bring the fact of alteration to the Justice's attention at the next

annual licensing court so that he may apply the jurisdictional test. However, failure to appraise the Court of the alterations will not deprive the Justice of jurisdiction to grant a renewal certificate after the completion of any such altera- tions or any subsequent renewal certificates. Even if the Justice erred in granting the first renewal certificate after the premises were altered, such was an error made within jurisdiction and if the order was not subsequently appealed or impeached by certiorari the licence issued on foot of such certificate must be regarded as valid. Such was the reasoning adopted in The State (Attorney General) -v- Judge Durcan [1964] IR 279, Doreen Riordan's Case [1981] ILRM 2, and Bannerton's Case [1984] ILRM 662. In Judge Durcan's case the Circuit Judge granted a new licence for premises previously licensed but in respect of which the licence had lapsed. At the hearing evidence was adduced that the premises had been licensed during the previous five years when in fact the licence had expired six years before and was, accordingly, outside the relevant period for revival. The excise authorities refused to issue a licence on foot of the county registrar's certificate and the Attorney General sought to quash the grant of the certificate on certiorari proceedings. It was held by Davitt P. that, even if the Circuit Judge erred in holding that the premises had been licensed within the relevant period, such error was made in the course of the exercise by him of his jurisdiction, and, accordingly, could not be questioned on certiorari. The facts in Bannerton's case have been noted earlier. Barron J. had to consider the validity of the renewal certificates granted in respect of a hotel licence and in respect of which evidence was not adduced of registration of the premises in the register of hotels kept by Bórd Fáilte as required by section 20 of the Intoxicating Liquor Act 1960. He held that the errors which resulted in the making of the orders were errors made within jurisdiction and as such certiorari would not longer lie to quash them. He says at p. 666:

FULLY EXPERIENCED FREE-LANCE CLERKS WILL PROVIDE AN EFFICIENT, COST EFFECTIVE SERVICE TO THE LEGAL PROFESSION. RATES VERY COMPETITIVE. TOWN AGENCY WORK A SPECIALITY! Avoca House, 189 - 193 Parnell Street, Dublin 1. Telephone: (01) 7 3 4 3 44 (10 lines) Telex: 3 3 4 53 TCHR El "The orders which were made in error and which have not been quashed on certiorari nor reversed on appeal are in effect declarations that the hotel was registered at the date of the making of each order in the Register of Hotels kept by Bórd Fáilte." By analogy with the reasoning adopted in Bannerton's case orders for the grant of renewal certificates are in effect declarations that the premises to which they refer are substantially the same as the previously licensed premises or, alternatively, are declarations to the effect that the premises as altered are duly entitled to be licensed. The Planning Acts Any unauthorised development or breach of condition attached to a planning permission will, in the normal course, give rise to the usual conveyancing queries. A further consideration arises — can a breach of the Planning Acts affect the jurisdiction of the Court to transfer or renew the licence? The jurisdiction of the Courts to grant, renew or transfer a licence is not dependant on the existence of a valid planning permission or on strict compliance with the Planning Acts. However, such a breach

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