The Gazette 1987

GAZETTE

LY/AUGUST

1987

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

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:

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"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

149