About this case:

• Citation:
  [2025] NIKB 4
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Adrian Colton

Delivering judgment for the High Court, Mr Justice Adrian Colton remarked that while the “concept of a licenced premises attached to a supermarket is undoubtedly a new development”, the “restrictive nature of the 1996 Order does not mean that it prevents innovation and development of new ways to run licensed premises”.

Stewart Beattie KC appeared for the applicant/respondent, instructed by DWF (NI) LLP. Liam McCollum KC with Richard Shields appeared for the objector/appellant, instructed by Mills Selig.

Background

The respondent was provisionally granted a licence for its supermarket premises in Dundonald for the sale of intoxicating liquor by retail for consumption either on or off the premises as provided for in Article 5(1)(a) of the Licensing (Northern Ireland) Order 1996.    

An objector appealed on the basis that the respondent failed to establish the “inadequacy” as to the number of licensed premises in the vicinity of its premises as required by Article 7(4)(e) of the 1996 Order, and that the application was essentially an application for an off-licence with no serious intention of offering an on-sales facility and was an impermissible attempt to circumvent the 1996 Order.

The High Court

Mr Justice Colton was satisfied that having regard to, inter alia, Lidl (NI) GmBH v Winemark the Wine Merchants Ltd [2008] NIQB 146, the court was required to ignore the contribution of the subsisting licence of ‘Ruby’s’, which was proposed to be surrendered, to the satisfaction of demand in the vicinity of the premises.

In this regard, the judge noted: “If the application is granted and the licence subsequently issues the subsisting licence will not be trading within the vicinity. Thus, it cannot possibly contribute to the satisfaction of the demand in the vicinity upon which the applicant relies to support the application.”

The court moved to consider whether existing off-sales premises should be included in assessing ‘inadequacy’, in circumstances where it was argued that the only premises that would be impacted upon by the grant of the application were off-sales providers.

Observing that there is no case law on this point, Mr Justice Colton highlighted having regard to the wording of the 1996 Order, a public house/on/off-sales licence is different to an off-licence and thus are not premises of the “kind specified in the application” for the purposes of Article 7(4)(e)(i) thereof.

The court was satisfied that the respondent “easily” established inadequacy in circumstances where inter alia research carried out in October 2019 reported that 10 per cent of those surveyed identified the need for “more pubs” in the area. 

Mr Justice Colton outlined that “the proposal will provide a public house facility that is located within the commercial/retail and transport hub of the vicinity and where significant numbers of people are attracted daily from within and from outside the vicinity. It will replace the existing licensing facility within the vicinity. It will not result in any increase in public house provision. Indeed, the contrary is the position. It may well be that it will not meet the full demand for licenced premises within the vicinity given its size and lack of food provision. That however does not mean that the applicant fails to establish inadequacy.”

Turning to the substantive objection, the High Court considered the assertion that the application was a blatant attempt to operate an off-sales facility at a location where there was no prospect of showing inadequacy of off-sales provision.

Emphasising that the respondent met the statutory test under the 1996 Order, the court considered that the inability of the respondent to obtain an off-licence at the premises previously was a factor in its motivation to bring the application, necessitating a change of approach on its part.

Mr Justice Colton considered that the concept of a licenced premises attached to a supermarket was “undoubtedly a new development”, but pointed out: “The fact that the application is a novel one is not a reason for refusing it… Lidl has always been alive to new opportunities and changes in its business model.”

Having regard to the evidence, the judge accepted that the applicant’s true intention is to open a public on/off-licence and that there was “no good reason” to refuse the application.

Conclusion

Accordingly, the High Court dismissed the appeal.

Lidl Northern Ireland Ltd v Philip Russell Ltd [2025] NIKB 4