In the matter of an application by Misbehavin' Limited for judicial review
| Jurisdiction | Northern Ireland |
| Judge | Kerr LCJ |
| Judgment Date | 2005 |
| Neutral Citation | [2005] NICA 35 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2005 |
| Date | 15 September 2005 |
1
Neutral Citation No. [2005] NICA 35
Ref:
KERC5361
Judgment: approved by the Court for handing down
Delivered:
15/9/05
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_________
IN THE MATTER OF AN APPLICATION BY MISBEHAVIN’ LIMITED
FOR JUDICIAL REVIEW
_________
Before Kerr LCJ, Sheil LJ and Hart J
_________
KERR LCJ
Introduction
[1] This is an appeal from the decision of Weatherup J of 24 September 2004
whereby he dismissed the appellant’s application for judicial review of Belfast
City Council’s refusal to grant the appellant’s application for a sex
establishment licence in respect of premises at Gresham Street, Belfast.
Factual background
[2] Misbehavin’ Limited applied to Belfast City Council for a sex
establishment licence on 13 May 2002 pursuant to the Local Government
(Miscellaneous Provisions) (Northern Ireland) Order 1985. By letters of
5 September 2002 and 22 October 2002 the council informed the appellant that
objections had been received to its application. The letters outlined the
grounds of objection in general terms.
[3] The council wrote to the appellant on 11 November 2002, enclosing copies
of extracts from minutes of its meetings on 18 October 1989 and 13 February
1997. These included information about previous applications for sex
establishment licences for premises in Gresham Street. On those earlier
occasions the council had resolved that the applications for licences should be
refused and had determined, in line with the provisions of the Act, that the
appropriate number of sex establishments in the relevant locality should be
2
nil. Having thus been told that previously the council had decided that there
should be no sex establishments in the Gresham Street area, the appellant was
invited to present arguments to a hearing on 18 November 2002 before the
Health and Environmental Services Committee of the council as to why that
position should be changed.
[4] At the committee hearing on 18 November 2002, the appellant raised two
particular concerns. The first of these related to documents that had not been
disclosed. The second concerned the way in which the committee was
dealing with objections to the appellant’s application. The committee was
hearing objectors in person and the appellant was not being told who the
objectors were nor was it being informed of the full extent of their objections
to the application. As a result of the appellant’s representations it was agreed
that a special meeting of the committee would be held on 2 December 2002 at
which the appellant’s representatives would be permitted to address the
committee.
[5] Before the meeting on 2 December, the appellant was supplied with the
following additional documents:-
(1) A report of Kenneth Crothers dated 15 November 2002 that
advised on the retail character of the area in which the premises
were located. This report also described the future development
proposals that would affect the area; and
(2) A report from the Special Health and Environmental Services
Department Building Control Service that outlined the nature of
objections that had been received in relation to the application.
This report defined the relevant locality as that within a 600m
radius from a centre point in Gresham Street. It referred to the
character of the relevant locality and described previous
decisions affecting the area. It also considered the appellant’s
proposals and the current policy of the council and made
recommendations in relation to the application.
[6] At a further meeting on 11 December 2002 the committee heard
representations on behalf of the appellant. Then, at its meeting on 20 January
2003, the committee decided to recommend that the council, in its capacity as
licensing authority, should refuse the application. The appellant was
informed of this by letter dated 23 January 2003.
[7] The recommendation of the committee was subject to ratification by the
council at its meeting on 3 February 2003. At that meeting it became apparent
that when the committee had considered the application on 20 January 2003,
it had before it a number of documents that had not been furnished to the
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