Prescott et Al v Henry

• Jurisdiction: Trinidad & Tobago
• Judge: Bernard, J.A.
• Judgment Date: 01 August 1984
• Neutral Citation: TT 1984 CA 43
• Docket Number: Mag. App. No. 97 of 1982
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 01 August 1984

Court of Appeal

Kelsick, C.J.; Bernard, J.A.

Mag. App. No. 97 of 1982

Prescott et al

and

Henry

Appearances:

S. Marcus and L. Pierre — for the Appellants

Dr. A.E. Wills, S.C. and

O. Charles — for the Respondent

Administrative Law - Licensing — Requirement — Authorisation of use of premises pursuant to Town and Country Planning Act (Trinidad and Tobago).

Bernard, J.A.

1 On an application made by one Uranie Henry (“the respondent”) to the Licensing Committee for the district Arima (“the Committee”) for the grant of a new licence, to wit an hotel spirit licence, in respect of her premises at Olton Road, Arima, in the County of St. George East, the Committee, following the evidence called in that behalf including that of some seven of the eight objectors and some three visits to the area, approved the grant. The appellants have appealed this decision of the Committee. It is not in dispute that the appellants had had a locus standi in the matter — they being on the uncontraverted evidence either owners or occupiers of property “situated within a quarter of a mile” from the respondent's premises (“the premises”) as provided for in section 21 of the Liquor Licences Ordinance No.27 of 1955 — now the Liquor Licences Act Ch, 84:10 (“the act”) which regulates, inter alia, the sale of intoxicating liquor and the grant and renewal of licences in respect thereof. It would appear that at all material times or at the hearing of the application at any rate the respondent was, according to her own testimony, not only “a worker with the St. George County Councils” but indeed was as well “can elected County Councilor of St. John — St. Barbs” which it would appear fell within the Committee's district.

2 So far as material section 21 of the act provides as follows:–

(21(1) The owner of the premises in respect of which a new licence is applied for, and any owner or occupier of property or a minister in charge of a place of public worship, or the managers of any public elementary school, situated within a quarter of a mile therefrom, and any Officer shall have the right of appearing before the licensing committee at licensing sessions too object to the granting of any new licence or the transfer of any licence any new premises, and every such Officer shall have such right ass regards the transfer of any licence to any person, and shall be heard by the licensing committee in support of any such objection.

• (2) Objection to the grant of a new licence or the transfer of a licence to new premises ear to anon person may be on any reasonable ground including any of the following grounds:

• (a) that the applicant has been convicted of an arrestable offence or of can offence for which he has been deemed a rogue and vagabond, or an idle and disorderly person, or is a person of known bad character;

• (b) that the district is already adequately served by licensed premises;

• (c) that the premises in respect of which the application is made are in too close proximity to a school or place of worship;

• (d) that the premises in respect of which the application is made are unsuitable either owing to difficulty in supervising them, size, state of repair or unsanitary condition, or to the lack of sufficient means of exit in case of fire.”

3 The grounds of appeal as amended were as follows:–

1

That the decision is unreasonable and cannot be supported having regard to the evidence. 2. That the decision is erroneous in point of law in that:– (a) The Committee erred in foiling to consider and/or take into account and to give any weight to the uncontradicted evidence adduced on behalf of appellants (objectors) that planning permission had not been obtained by the respondent (applicant) in respect of the premises; (b) The Committee erred in failing to consider and/or take into account or to give any weight to the evidence regarding the proximity of the school and the church because neither a school principal or (sic) a minister appeared before it as an objector or gave evidence; (c) The Committee misdirected itself in (i) holding that in the absence of actual contravention of the Liquor Licensing Ordinance it ought to grant the licence; and (ii) failing to consider the fears expressed by the objectors; (d) The Committee took into consideration its belief or conclusion that the church in close proximity to the premises appeared to be in disrepair or disuse without giving the objector an opportunity to deal with that belief or conclusion. 3. That the committee contravened section 85 of the Liquor Licensing Ordinance 1955 (now chapter 84:10) by permitting unsworn evidence (of Sgt. Bruce) to he given that the gate had been fixed and proceeding to rely upon such evidence. 4. That the committee contravened section 20(3) of the Liquor Licensing Ordinance, 1955 (now Chapter 84:10) by considering and granting the application without the submission of a plan by the respondent (applicant).

4 Ground 4 was abandoned cat the hearing of the appeal.

5 For convenience and more particularly because of the view I take of the importance and/or significance of the testimony of Anthony Ramkissoon ((Ramkissoon”) — the Acting Development Control Supervisor of the Town and Country Planning Department of the Ministry of Finance — to which I shall come momently and, indeed, identify, I consider that I should at this interval record what the Committee stated, among other things, in coming to the conclusion that the licence should be granted. This is what the Committee said:–

“The Committee hearing heard all the evidence and counsel on both sides came to the finding

• (a) that it was neat a competent body to enquire into any alleged malfeasance or acts of omission or commission on the part of another body — the Town and Country Planning Division;

• (b) that its terms of reference were already defined and confined to the jurisdiction given it by the Liquor Licensing Ordinance and it could not go on a witch hunt for other bodies or agencies;

• (c) that the premises were clean and sufficiently and efficiently provided with the tools of the trade for the purpose applied for;

• (d) that it ought to grant the licence because no overt costs, complained of by the objectors were committed, only feared, and that until sand unless such acts as feared were an fact committed, the Committee ought to grant the licence.”

“The Ordinance provides for action which can be taken by persons affected by the contravention of the terms of the licence by the licensee.”

“In this setting the Licensing Committee saw fit to grant the licence.”

6 To my mind, having regard to all the events, Grounds 1, 2(b) — (d) and 3 may conveniently be considered and determined together and distinctly from Ground 2(a). That brings me to the evidence, the Memorandum of Reasons of the Committee and the contentions of counsel.

7 A. Grounds 1, 2(b) — (d) and 3

8 Three grounds of objection had originally been lodged against the grant of the licence. I propose to deal here with the first two of them since they are relevant to the evidence and the issues raised in the arguments before this court. I leave the third ground for consideration later. The two particular grounds so raised were as follows:–

• “1. That the premises in respect of which the application is made are in too close proximity to a school or place of worship.

• 2. That the area is purely residential and the business in contemplation will interfere with the usual peace of the area.”

9 All the appellants except Allan Houillier testified before the Committee. In sum, the main thrust of their contention and this was not seriously disputed by the respondent was that the area was a peaceful and residential one. Accordingly, they expressed their fears of the real likelihood of the commission of several acts of human indiscretion such as nuisance, disorderly behaviour and prostitution, with the result that not only would the area's standard as a residential area be lowered with the obvious drop in the valuation of their properties but that the tranquility of the area, to which they had been accustomed, would be disturbed and their right of quiet enjoyment seriously jeopardised. Besides, they claimed that there were a church of worship, a kindergarten and a public school nearby. Thus, the activities at and about the premises could have disastrous consequences for or at least have harmful effects on the day to day operations of these institutions.

10 On the other hand, the respondent demonstrated by her evidence that she was indeed alive to the obligations cast upon her under the act. But this was not all. Her evidence, which was not disputed, but was in fact supported by the Police through one Sgt. Bruce and indeed corroborated by the Committee itself as a result of the physical examination it had carried out on the numerous visits it had made to the premises, also revealed that she had in fact taken steps to provide the amenities which were conditions precedent under the act for the grant of a licence of the kind.

11 In addition to hearing all the evidence including that of the Police who had supported the application but for one minor reservation to which I shall come in a moment, the Committee, as I said, had made periodical visits to the site. Based on all the surrounding circumstances the Committee in rejecting the appellants' contentions on these grounds stated in its Memorandum of Reasons that it had found as a fact that the Baptist Church was not in as close proximity to the area as alleged but that it was over a quarter mile away to the south and that it seemed to it to be in utter disrepair and in a state of disuse with a well ploughed field all round it; that not only was the school referred to by the appellants a privately run kindergarten one but that its hours of operation were for a relatively short period of the day, to wit 9.00 a.m. to 2.00 p.m.; and that further...