The High Court refused Cork Opera House plc’s application to quash a Revenue Commissioners decision that a theatre licence from Cork City Council did not qualify it for an excise licence to sell alcohol. The court extended the time for bringing the judicial review, but held that the Council lacked power to issue the relevant public entertainment licence and that the Revenue Commissioners could not grant an excise licence without it.
The judgment, delivered by Mr Justice Hedigan on 21 November 2007, concerned the interaction between section 7 of the Excise Act 1835 and section 172 of the Cork Improvement Act 1868. Cork Opera House had received an annual theatre licence from the Council and, for many years, the Revenue Commissioners had issued it an on-licence on that basis.
Revenue said that a review of the statutory requirements led it to conclude in 2004 that Cork Opera House did not qualify. It argued that the relevant licence had to be issued by justices of the peace, and that the Council had never received that licensing power. It also argued that the proceedings were late. Cork Opera House relied on the Council’s statutory authority, the long-standing licensing practice and a legitimate expectation that Revenue would continue issuing its licence.
The court found that the application, begun on 13 June 2005, was outside the six-month limit because Revenue’s position had been set out in a letter dated 30 August 2004. It nevertheless extended time. The judge accepted that the parties had tried to resolve the issue while maintaining the existing arrangement, and that the delay was understandable in those circumstances.
On the licensing issue, the judge found that the 1947 adaptation order transferred justices’ functions only for specified sections of the 1854 Act, none of which covered licensing places of public entertainment. The court therefore concluded that Cork City Council had no power to issue the theatre licence in question; the District Court could issue such a licence under section 51 of the Public Health Acts Amendment Act 1890. Without that licence, the Revenue Commissioners had no power under the 1835 Act to grant Cork Opera House the retail alcohol licence it sought.
The judge also rejected the legitimate expectation claim. While annual licence renewals could arguably amount to a representation on which the company had relied, that doctrine could not give a statutory authority a power it did not possess. The court refused the relief sought. The judgment noted that alcohol service at the Opera House was expected to continue for the foreseeable future, but did not itself grant an alcohol licence.