R (Bushell and Others) v Newcastle Licensing Justices and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Sir Martin Nourse |
| Judgment Date | 24 June 2004 |
| Neutral Citation | [2004] EWCA Civ 767 |
| Docket Number | Case No: C1/2004/0760 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 2004 |
[2004] EWCA Civ 767
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
The Hon Mr Justice Lightman
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Jacob
Lord Justice Maurice Kay and
Sir Martin Nourse
Case No: C1/2004/0760
CO/6473/2003
John Steel QC, Gerald Gouriet and Robert Walton (instructed by Sintons) for the Claimant/Respondent
Ian Dove QC and Charles Holland (instructed by Mincoffs) for the 2 nd Defendant/Appellant
James Rankin (instructed by Sintons) for the 2 nd/3rd Interested Parties
Jacob LJ:
The Gresham Hotel is in Osborne Road, Newcastle-upon-Tyne. It is owned by the second defendant, Ultimate Leisure Group plc ("Ultimate") . At the relevant time Ultimate also owned a small public house called "Mims Bar" and in the same licensing district. Ultimate want an on-licence for the Gresham to run it as a public house with music. The scale would be substantial, accommodation enough for 420 people. The claimants live nearby and are representative of many local people who object to the proposed licensing of the Gresham. Trade objectors also object, two of these appearing as interested parties.
There are a number of routes by which premises can be granted an on-licence. They are set out in the Licensing Act 1964 as amended. This legislation is shortly to be replaced, having been repealed by the Licensing Act 2003 but only from a date to be appointed, which we understand is likely to be in 2005. We have to construe the legislation as it stands, unrepealed.
The routes for a justices' licence are "as a new licence or by way of renewal, transfer or … removal" (s.3(2)) . By s.3(3) these various terms are defined. "Renewal" is defined as one might expect and nothing turns on that. "Transferring a licence" means changing the holder and again nothing turns on that. "Removing a justices' licence means taking it from the premises for which it was granted and granting it for other premises" (s.3(3) (b)) . This case is about a proposed removal of the licence from Mims Bar to the Gresham. There are three sorts of removal—"ordinary removal", "special removal" and a "planning removal or temporary premises removal" (see s.5) .
It is evident that Ultimate could not easily obtain a licence for the Gresham by way of a new application or an ordinary removal. For these types of licence there is substantial scope for objection. The objectors are both numerous and they apparently have significant grounds. Ultimate have virtually recognised this by withdrawing an application. However, the potential grounds for objection to a "special removal" are much more limited. Ultimate say that they can use this procedure to get the licence transferred from Mims.
It is not, I think, necessary to go into the details of some of the earlier battles concerning the attempts to get a licence for the Gresham. It is sufficient to say that a lot of this is set out in the judgment of Owen J dated 31 July 2003 [2003] EWHC 1937 (Admin). I therefore will just set forth the facts relevant to this appeal in chronological order.
20 March 2002 The City of Newcastle-upon-Tyne Cabinet approved the making of a compulsory purchase order ("CPO") for the St James Boulevard/Waterloo Street area. This is an area which included Mims Bar. The Council resolution authorised the purchase of affected properties by agreement in advance of any compulsory purchase order.
31 July 2002 Mims was closed for business. Its licence was suspended pursuant to the provision of s.141 of the Act (see below as to this) .
1 August 2002 The City Council made the CPO and Ultimate were duly notified of this shortly thereafter. The notification included the following statement:
"Funds are currently available to support the regeneration scheme through the Grainger Town Partnership. The opportunity exists until March 2005. It is therefore imperative that land is brought into public ownership quickly to ensure that the scheme can be completed and the Grainger Town funding can be claimed by March 2005."
Jan/Feb 2003 The public inquiry into the CPO proceeded.
12 February 2003 Ultimate gave notice of its intention to apply at the transfer session for the licensing district of Newcastle upon Tyne to be held on Tuesday 11 March for an order authorising the special removal from Mims to the Gresham.
11 March 2003 The application for special removal came before the Justices. It was adjourned. There was procedural impropriety as noted by Owen J, but nothing turns on this.
7 April 2003 The application was reconvened. The Justices decided certain preliminary issues, those that went before Owen J.
5 June 2003 The Minister confirmed the CPO.
26–28 November 2003 The Justices heard the application for special removal.
1 December 2003 The application was granted.
Following this the claimants sought judicial review and the matter came before Lightman J. He held (on 15 March 2004 [2004] EWHC 446 (Admin); (2004) [57] Licensing Review 13)) that the Justices were wrong to hold that the case came within the provisions concerning special removal. He held that the decision should be quashed and that the application for the grant of special removal should be remitted for reconsideration. He went further and expressed views on the "discretionary grounds for special removal". As I read his decision these views form no part of his essential reasoning. They were not alternative reasons for quashing the decision. They were intended to be no more than "guidance".
The principal issue before us therefore is whether Lightman J was right in holding that the special removal procedure could not be invoked. He called this "jurisdiction" but really it is simply a question of whether the facts at the relevant time brought the case within the language of the section providing for special removal. That is s.15 which reads:
"(1) Where application is made for the special removal of an old on-licence from any premises in a licensing district to premises in the same district on the ground -
(a) that the premises for which the licence was granted are or are about to be pulled down or occupied under any Act for the improvement of highways, or for any other public purpose; or
(b) that the premises for which the licence was granted have been rendered unfit for use for the business carried on there under the licence by fire, tempest or other unforeseen and unavoidable calamity
the provisions of s.12 … of this Act shall apply as they apply to a renewal … "
This provision incorporates s.12 of the Act. The effect, by s.12(4), is that in a case covered by s.15 the justices may only refuse the application on the grounds that:
(a) the applicant is not a fit and proper person to hold the licence; or
(b) the licensed premises have been ill-conducted or the premises to be licensed are structurally deficient or structurally unsuitable".
The origins of this legislation are old indeed. They come from s.14 of the Licensing Act 1828 (sometimes called The Ale House Act 1828) . This provided, inter alia:
"… if any House, being kept as an Inn by a Person duly licensed as aforesaid, shall be or about to be pulled down or occupied under the Provisions of any Act for the improvement of the Highways or for any other Public purpose; or shall be, by Fire, Tempest or some other unforeseen and avoidable Calamity, rendered unfit for the Reception of Travellers, and for other legal Purposes of an Inn; it shall be lawful for the Justices … to grant to the person whose house shall as aforesaid have been or shall about to be pulled down, or have become unfit for the Reception of Travellers, or for the other legal Purposes of an Inn, and who shall open and keep as an inn some other fit and convenient House, a Licence to sell exciseable Liquors by Retail to be drunk or consumed therein …"
So a special removal may be granted where the premises "are or are about to be pulled down or occupied …" Two questions arise. First when is the date when the question should be asked and secondly what do the words mean when asked on that date?
What is the date?
Neither before the Justices nor before Lightman J was there any significant argument about this. It was assumed (it seems) that the date was the date when the application was made. Before us an argument developed as to whether that was right. Mr Dove QC for Ultimate argued for the latest possible date for the self-evident reason that the later the date the more readily was it possible to argue that the premises were about to be pulled down or occupied.
There are, in principle, three candidates for the relevant date, namely the date of application (12 February), the date when the matter first came before the Justices (11 March) or the date when the Justices heard the matter (26–28 November) . So far as this case is concerned there is no material difference between the first two of these and it is not necessary to decide between them.
Mr Dove contended for the November date. He said that at that time the Justices were not considering an adjourned application, they were considering a new application. That was necessary, he submitted, not least because during the intervening period a Justice had retired and been replaced by another. He pointed out that at that hearing the formalities (such as proof of the...
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R (Bushell and Others) v Newcastle Licensing Justices and another
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R. v. Newcastle upon Tyne Licensing Justices et al., [2006] N.R. Uned. 47 (HL)
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