R (Bushell and Others) v Newcastle Licensing Justices and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LIGHTMAN,Mr Justice Lightman |
| Judgment Date | 26 March 2004 |
| Neutral Citation | [2003] EWHC 1937 (Admin),[2004] EWHC 446 (Admin),[2004] EWHC 1112 (Admin) |
| Docket Number | Case No: CO/6473/2003,CO/6473/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2004 |
[2004] EWHC 1112 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Lightman
CO/6473/2003
MR J STEEL QC (instructed by Eversheds) appeared on behalf of the CLAIMANT
The FIRST DEFENDANT appeared in person
MR I DOVE QC and MR C HOLLAND (instructed by Mincoffs) appeared on behalf of the SECOND DEFENDANT
The SECOND INTERESTED PARTY appeared in person
MR J RANKIN (instructed by Eversheds) appeared on behalf of the other INTERESTED PARTIES
I am going to give permission to appeal, and the hearing will be on 25th May in the Court of Appeal.
I am grateful, my Lord.
I will give a stay over until 25th May, but I will give liberty to all parties to apply in relation to that stay, so if there is any excessive noise or anything of that sort, then there will be an application to release leave from that.
My Lord, yes. In any event, I am sure that would have been implicit.
I have told the Court of Appeal that this appeal should not take longer than a day. I do not think it should. Obviously there will have to be detailed skeletons, but it seems to me that the issues raised by your appeal in the light of the judgment can be properly developed in the skeleton argument, and it should be easily dealt with within a day.
My Lord, I am grateful.
I am grateful for all your contributions, I think that is the best compromise that I can achieve.
Yes. My Lord, I presume that the order be in the form that was at the end of my Lord's judgment?
Yes, and it will include your undertaking.
Yes, my Lord, and we will liaise with my learned friend's solicitor in order to ensure that that is in a form that meets all of the concerns that are raised.
So I will make an order in those terms in the form of an order to be drafted and signed by counsel, and when that is signed it is to be handed to the associate.
And so it is on the record, if I may ask it to be so, the order for costs be costs in the case with —
What costs are you asking for?
This was the cost of my Lord's hearing, my Lord.
My Lord, in relation to the costs, I have conceded that we should pay one set of costs, to be assessed, and your Lordship has given an indication about the junior.
I am not sure I understand about costs in the case.
I think the appropriate order, with respect to my learned friend, should be that we pay his costs.
I have made that order already.
I am grateful, my Lord.
Thank you all very much.
[2004] EWHC 446 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Lightman
Case No: CO/6473/2003
Mr John Steel QC, Mr Gerald Gouriet and Mr Robert Walton (instructed by Eversheds LLP, Central Square South, Orchard Street, Newcastle-Upon-Tyne NE1 3XX) for the Claimants
Mr Ian Dove QC and Mr Charles Holland (instructed by Mincoffs, Kensington House, 4–6 Osborne Road, Newcastle-Upon-Tyne, Tyne & Wear NE2 2AA) for the Second Defendant
Mr James Rankin (instructed by Eversheds LLP, Central Square South, Orchard Street, Newcastle-Upon-Tyne NE1 3XX) for the Second and Third Interested Parties
Hearing dates: 6 th & 9th February & 4th March 2004
I. INTRODUCTION
I have before me an application by Mr Ron Bushell and four others ("the Claimants") supported by five interested parties ("the Interested Parties") for permission to apply for an order quashing the decision dated the 1 st December 2003 ("the Decision") of the first defendant Newcastle Licensing Justices ("the Justices") granting the application for special removal of an old on-licence ("the Licence") from Mims Bar ("Mims") to The Gresham Hotel ("the Gresham"), and, if such permission is granted, an application for the order itself. For the reasons which will subsequently appear, I think that the Claimants have a properly arguable case and that permission should be given, and I accordingly determine the substantive application.
The successful application to the Justices for the special removal had been made by the second defendant Ultimate Leisure Plc ("Ultimate"). The application to the Justices had been opposed by the Claimants, who live variously adjacent to and in the vicinity of the Gresham and are representative of many hundreds of local people who have objected to the licensing of the Gresham as a public house with music, and by the Interested Parties. Of the Interested Parties only Rindberg Holding Company Limited ("Rindberg") and Peel Hotels Limited ("Peel") were represented before me. They are trade objectors who operate bars similar in size and style to that proposed by Ultimate. Rindberg has recently underwritten the legal costs of the Claimants who until April 2003 were unrepresented. Mr Burk and Ms Revell also opposed the application to the Justices. They are tenants of 94 Osborne Road ("the Home"), a residential care home immediately adjacent to the Gresham sharing a party wall and managed by St Cuthberts Care. Six of the bedrooms of the Home share a party wall with the Gresham and three of the bedrooms share a party wall with the proposed licensed bars. Newcastle City Council ("the Council") has submitted a letter in which it gives detailed reasons for supporting the Claimants' application.
The application to this court raises the issues whether the statutory conditions for the grant of removal were satisfied and whether the Justices' reasoning for the grant is open to legal challenge. The issues involve questions of construction of the provisions of the Licensing Act 1964 ("the Act") relating to special removal of old on-licenses which are anachronistic and unfair to members of the public living near the premises to which the licence is proposed to be removed, for the grounds of objection to the removal available to them are strictly and artificially limited and do not allow for proper consideration of the impact of the removal upon them. The grounds are more restricted than those available in respect of any other grant of a licence. Statutory provision for special removal dates back to the Licensing Act 1828. Fortunately the Licensing Act 2003 ("the 2003 Act") repeals these provisions and, when that legislation comes into force, full and proper protection will be provided for persons in the position of the Claimants and the Interested Parties. But unfortunately no commencement order has been made naming an appointed day and accordingly the 2003 Act has not yet come into force and is only likely to come into force at some time in 2005. In the meantime the special removal provisions of the Act continue in force and Ultimate is fully entitled to pray in aid those provisions and cannot be criticised for doing so.
II. STATUTORY SCHEME UNDER THE ACT
References in this judgment to sections are to sections of the Act.
In the ordinary way a discontinuance of a licence holder's business on the compulsory acquisition of the premises results in the expiration of the licence. The Act however provides that the licence may be protected by obtaining a certificate of suspension and by removal of the licence to other premises.
(a) Suspension
Section 141 authorises the Commissioners of Customs and Excise ("the CCE") to grant a certificate of suspension of a licence which keeps the licence alive where "the business is temporarily discontinued by reason of the compulsory acquisition, or the proposed compulsory acquisition, of licensed premises in which the business was carried on". It is to be noted that (1) the suspension of the licence is apposite only where the discontinuance of the business is temporary and (2) for the purposes of section 1441 it is sufficient that the compulsory acquisition of the premises is merely proposed.
(b) Removal
Section 3(2) provides that a Justices' licence may be granted by way of "removal". Section 3(3)(b) provides:
"Removing a justices licence means taking it from the premises for which it was granted and granting it for other premises."
Removal may be ordinary or special. Section 5 provides that the Justices may grant an ordinary removal of a licence to premises in their licensing district on the application of the person wishing to hold the licence after the removal. An ordinary removal may be granted to ensure continuity of business in advance of any final decision e.g. whether the existing premises should be knocked down or compulsorily acquired or voluntarily sold to a local authority.
By way of contrast section 15(1)...
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