R Bridgerow Ltd v Cheshire West and Chester Borough Council Whitefriars Resident Association (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Stuart-Smith
Judgment Date30 April 2014
Neutral Citation[2014] EWHC 1187 (Admin)
Docket NumberCase No: CO/13995/2013
CourtQueen's Bench Division (Administrative Court)
Date30 April 2014
Between:
The Queen on the application of Bridgerow Limited
Claimant
and
Cheshire West and Chester Borough Council
Defendant

and

Whitefriars Resident Association
Interested Party

[2014] EWHC 1187 (Admin)

Before:

The Honourable Mr Justice Stuart-Smith

Case No: CO/13995/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at Manchester Civil Justice Centre

1 Bridge Street West

Manchester Greater Manchester

England

M60 9DJ

Richard Clayton QC and Sarah Clover (instructed by Poppleston Allen Solicitors) for the Claimant

James Rankin (instructed by Cheshire West and Chester Borough Council Legal Department) for the Defendant

Hearing dates: Wednesday 2 April 2014

Mr Justice Stuart-Smith

Introduction

1

The Claimant ["Bridgerow"] is the proprietor of Platinum Lounge, a lap and table dancing venue that has been operating in the heart of Chester's City Centre since 2005. In March 2011 the Defendant Council resolved to adopt the SEV licence provisions of the Local Government (Miscellaneous Provisions) Act 1982 as amended by s. 27 of the Policing and Crime Act 2009 ["LGMPA"]. On its first application under the new regime, Bridgerow was granted an SEV licence in April 2012. When that licence was coming to an end, Bridgerow applied for renewal. The Council refused to renew the licence by a decision made on 17 September 2013. The relevant parts of the 2012 and 2013 Decision Notices are set out at Annexe A and Annexe B respectively.

2

Bridgerow now challenges the Council's decision of 17 September 2013. In the light of Bridgerow's challenge, the Council took steps to try to provide amplified reasons for its decision. For sound reasons, the Council conceded at the hearing that it should not attempt to rely upon those steps to supplement the original decision. It follows that the Council's decision stands or falls by what happened at the meeting that made the decision and the terms of its Decision Notice.

3

As originally formulated, Bridgerow's challenge was based on alleged:

i) Failure of the Committee to follow their own policy;

ii) Failure to consider making an exception to policy in the individual circumstances of the case;

iii) Failure to give reasons;

iv) Failure to have regard to the importance of consistency and failure to give proper reasons for departing from the decision of the previous Committee;

v) Failure to consider Bridgerow's human rights.

4

By supplemental grounds Bridgerow alleged that the Council acted in contravention of its constitution because the decision should have been taken by a panel of three but was in fact taken by twelve councillors.

5

By the time of the hearing, Bridgerow placed the constitutional point at the forefront of its submissions. Turning to the original grounds, Leading Counsel for Bridgerow submitted that his most powerful point was the alleged failure of the 2013 Committee to give due weight to the fact of the 2012 Committee's decision combined with a failure to articulate its reasons for reaching a different conclusion. I agree with his analysis. I shall therefore deal with the constitutional point and due weight/inadequate reasons point first and in that order.

The Statutory Framework, Ministerial Guidance and Applicable Legal Principles

6

The Statutory Framework and ministerial guidance have been considered in a number of recent cases including R (ex parte KVP Ent Limited) v South Bucks DC [2013] EWHC 926 (Admin)and R (ex parte Thompson) v Oxford City Council [2013] EWHC 1819 (Admin) and 2014 EWCA Civ 94.

7

In Bean Leisure & Ruby May v Leeds CC [2014] EWHC 878 (Admin) I attempted to summarise the position at [5]–[11]. For present purposes it is only necessary to recapitulate briefly:

i) The discretionary ground for refusal that is relevant in this case is under paragraph 12(3)(d) of Schedule 3 to LGMPA and is that "the grant or renewal of the licence would be inappropriate, having regard (to the character of the relevant locality; or (ii) to the use to which any premises in the vicinity are put; or (iii) to the layout, character or condition of the premises … in respect of which the application is made."

ii) Parliament's intention was to give primacy to the evaluative judgment of local authorities who have the advantage of local knowledge, the responsibility vested in them by election and the accountability to their constituents imposed by the local democratic process. The Courts should respect that primacy and not interfere unless necessary.

8

The principles relating to the obligation to give reasons generally and when departing from a previous decision are also familiar. The parties in the present case did not dissent from the summary that I provided in Bean Leisure at [48] and [50–53] which is attached as Annexe C. Once again, therefore, I provide only a brief recapitulation here:

i) Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues;

ii) In a case such as this, a committee is entitled to take a fresh look at a matter and to reach a decision that differs from a decision taken previously by another committee. If it proposes to do so when nothing has changed since the previous decision, it must give its reasons for doing so. However, even where circumstances have changed, the committee is under the general obligation that its reasons must enable the reader to understand why the matter was decided as it was by the present committee. In reaching its decision, the later committee must give due weight to the previous decision, though it is not in any way bound by it.

9

I merely add that what constitutes "due weight" will depend on the facts of each case and will be the weight that is appropriate in all the circumstances: see by way of analogy R (ex parte Baker) v Secretary of State for the Communities [2008] EWCA Civ 141 at [31] per Dyson LJ.

10

I will consider the principles that apply to the alleged breach of the Council's constitution when dealing with that ground of challenge.

The Factual Background

The Premises and their Location

11

As is well known, Chester has a long history. It still has many ancient and historical buildings, including the largest stone-built Roman Amphitheatre in Britain. The City Centre is justly famous for its historical buildings, including the Cathedral and many half-timbered buildings that remain in daily use. Platinum Lounge is at 42 Bridge Street Row, which is in the heart of the City Centre and is one of the celebrated "Rows" of half-timbered galleries, reached by steps, which form a second row of shops above those at street level.

12

The City Centre is predominantly commercial and provides a busy shopping centre and thriving tourist destination with some residential accommodation. Bridge Street Row exemplifies these characteristics. Although the main thoroughfare is substantially retail and commercial, there are houses, apartments and dedicated student accommodation in the vicinity. By way of example, Three Old Arches is at 48 Bridge Street, within 50 metres of Platinum Lounge: it is designated Grade I Listed, is the oldest shop front in England (dating back to 1274) and has 25 apartments above.

13

Two aspects of the residential accommodation near Platinum Lounge require mention. The first is that Platinum Lounge is just over 50 metres from one end of White Friars, a street predominantly made up of old buildings now having mixed commercial and residential uses. The significance of White Friars is that its residents were vocal in their opposition to the proposed renewal of Bridgerow's SEV licence and had by 2013 organised themselves to form a Residents Association, the purpose of which was to promote what they consider to be the improvement of the City Centre. The second is that the ratio of residential to commercial occupancy has been shifting with an increase in the number of properties being refurbished or developed for residential use. The exact figures are a matter of dispute between the parties, but it is not in dispute that during the period with which this case is concerned, a significant development of 28 units at Bollands Court and Commonhall Street (for which permission had originally been granted some years before) began to come on stream and to be built. The position of residential properties near to Platinum Lounge was before the 2013 Committee when it made its decision.

14

In addition to its SEV licence, Platinum Lounge is licensed for regulated entertainment and the sale of alcohol. That licence is unaffected by the 2013 decision not to renew the SEV licence. Since 2005, when the club started operating as a lap and table dancing venue, there have been no licensing issues, no warnings and no enforcement activity. It is Bridgerow's evidence that no resident has made a complaint to it and that no complaint or regulatory steps have been taken against it by either the Police or Environmental Protection Officers. There were, however, objections from residents in both 2012 and 2013 to which I shall return.

The Council's Constitution

15

The Local Government Act 2000 altered the balance of local government away from a council-based style of governance to vest executive functions in a mayor or a mayor and cabinet. The effect of the change was described by Hickinbottom J, whose description was adopted by the Court of Appeal in R (Ex parte Buck) v Doncaster MBC [2013] EWCA Civ 1190 as...

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