Associated Provincial Picture Houses Ltd v Wednesbury Corporation

JurisdictionEngland & Wales
Judgment Date1947
Date1947
Year1947
CourtCourt of Appeal
[COURT OF APPEAL] ASSOCIATED PROVINCIAL PICTURE HOUSES, LIMITED v. WEDNESBURY CORPORATION. 1947 Nov. 7, 10. Lord Greene M.R., Somervell L.J. and Singleton J.

Cinematograph - Sunday performances - Licence - Condition that “no children under the age of fifteen years shall be admitted to any entertainments whether accompanied by adult or not” - Action by licensees - Claim for declaration that condition ultra vires or unreasonable - Sunday Entertainments Act, 1932 (22 & 23 Geo. 5, c. 51), s. 1, sub-s. 1.

By s. 1, sub-s. 1, of the Sunday Entertainments Act, 1932, an authority having power in any area to grant licences for cinematograph performances under the Cinematograph Act, 1909, is given power to allow a licensed place to be open and used on Sundays, “subject to such conditions as the authority think fit to impose.”

When a local authority granted to the plaintiffs leave for Sunday performances subject to the condition that no children under fifteen years of age should be admitted to Sunday performances with or without an adult:—

Held, that the local authority had not acted unreasonably or ultra vires in imposing the condition.

In considering whether an authority having so unlimited a power has acted unreasonably, the court is only entitled to investigate the action of the authority with a view to seeing if it has taken into account any matters that ought not to be or disregarded matters that ought to be taken into account. The court cannot interfere as an appellate authority to override a decision of such an authority, but only as a judicial authority concerned to see whether it has contravened the law by acting in excess of its power.

Harman v. Butt [1944] K. B. 491 approved.

Theatre De Luxe (Halifax), Ld. v. Gledhill [1915] 2 K. B. 49 considered. Dissenting judgment of Atkin J. explained and preferred.

APPEAL from Henn Collins J.

The plaintiff company, the owners and licensees of the Gaumont Cinema, Wednesbury, Staffordshire, were granted by the defendants who were the licensing authority for that borough under the Cinematograph Act, 1909, a licence to give performances on Sunday under s. 1, sub-s. 1, of the Sunday Entertainments Act, 1932F1; but the licence was granted subject to a condition that “no children under the age of fifteen years shall be admitted to any entertainment whether accompanied by an adult or not.” In these circumstances the plaintiffs brought an action for a declaration that the condition as ultra vires and unreasonable.

Henn Collins J. dismissed the action, following Harman v. ButtF2 and holding that the decision in Theatre de Luxe (Halifax), Ld. v. GledhillF3 was not in pari materia. The plaintiffs appealed.

Gallop K.C. and Sidney Lamb for the plaintiff. Henn Collins J. has followed a judgment of Atkinson J. in Harman v. ButtF2, in which he held that a similar condition was intra vires. The licensing of cinematographs was first imposed by the Cinematograph Act, 1909. On the question which arose under that Act whether the power to make regulations was confined to matters relating to safety or extended to wider questions of public policy, there have been conflicting opinions. When the opening of cinemas on Sunday was permitted by the Sunday Entertainments Act, 1932, it referred back to the Act of 1909, but the power to make regulations is differently worded. During the war, Defence Regulation 42B gave power to a competent naval, military or air force authority to certify that Sunday opening was desirable and to the local authority to permit opening in accordance with such certificate. There are thus three different positions: (1.) weekday opening under the 1909 Act; (2.) Sunday opening under the 1932 Act; (3.) Sunday opening under reg. 42B which is in force till the end of 1947. The present case has to do only with (2.).

In Theatre de Luxe (Halifax), Ld. v. GledhillF4, the majority judgment to some extent limited the scope of the power to make regulations under the Act of 1909. Atkin J. delivered a dissenting judgment, favouring a wider interpretation, but the decision has never been dealt with by the Court of Appeal. That decision was under the Act of 1909, but in the Act of 1932 the words are “subject to such conditions as the authority think fit to impose,” and the question is whether there is any limitation or whether those words enable the authority to say that no man or woman may take his or her child under fifteen to the cinema on Sunday. It is admittedly on the party attacking the regulation to establish that it is unreasonable. The true view seems to be that the court looks on such conditions benevolently, but does not treat the decision of the local authority as binding. In Harman v. ButtF5 Atkinson J. held a similar condition reasonable, and in the present case Henn Collins J. followed that decision, without forming an independent judgment. Though the subject matter of Roberts v. HopwoodF6 was very far from the present case, there are passages in the opinions which throw light on the attitude of the court in considering the validity of regulations.

It is material that in the present case there had been a poll of the electorate in favour of Sunday opening.

[Lord Greene M.R. That does not seem to carry the matter any further. The vote was merely for opening the cinema on Sunday “subject to such regulations as the authority think fit to impose.”]

On an analysis the electorate has to consider whether it wishes the local authority to allow performances on Sunday. That, in effect, means that it wishes for performances, subject to conditions, but it cannot intend to leave the conditions to be imposed at large. It must at least intend any condition imposed to be reasonable. Whether this condition is reasonable is a matter for the court as being a high matter of policy. Of course unreasonableness has to be established but it is for the court to exercise its own judgment on the facts established. No reasonable authority could have imposed the condition preventing the persons who have voted for Sunday performances taking their children under fifteen with them. Where what has been done is unreasonable, the plaintiffs are entitled to go for relief to the court: Rex v. Burnley Justices. Ex parte LongmoreF7. It is true that the authority had wrongly delegated their powers but the actual decision was based on the unreasonableness of the condition. Henn Collins J. was wrong in not accepting the obligation to decide as to reasonableness. The exclusion of children accompanied by their parent or parents is unreasonable if not also ultra vires: see the majority decision in Theatre de Luxe (Halifax), Ld. v. GledhillF8. [They referred also to London County Council v. Bermondsey Bioscope Co.F9; R. v. London County Council. Ex parte London & Provincial Electric Theatres, Ld.F10; and Ellis v. DubowskiF11.]

FitzGerald K.C. and Vernon Gattie for the defendants. [Lord Greene M.R. We do not require to hear you but will you say if there is any authority that we ought to have in mind.] They referred to Short v. Poole CorporationF12 and Mills v. London County CouncilF13.

LORD GREENE M.R. In the action out of which this appeal arises, the plaintiffs, who are the proprietors of a cinema theatre in Wednesbury, sought to obtain from the court a declaration that a certain condition imposed by the...

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