R (Luminar Leisure Ltd) v Norwich Crown Court; Hitchcock, interested party
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 03 October 2003 |
| Neutral Citation | [2003] EWHC 2227 (Admin) |
| Docket Number | Case No: CO/581/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 October 2003 |
[2003] EWHC 2227 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Stanley Burnton
Case No: CO/581/2003
Gerald Gouriet (instructed by Poppleston Allen) for the Claimant
Sir Richard Beckett QC and Stephen Walsh (instructed by the Legal Department of J D Wetherspoon plc) for the First Interested Party
The Defendant and the Second Interested Party did not appear and were not represented.
Introduction
These proceedings are an incident in the competition between two commercial concerns, the Claimant and J D Wetherspoon plc, both of whom carry on business in the leisure industry. The First Interested Party, Mr Hitchcock, is J D Wetherspoon's manager and the licensee of "Lloyd's No. 1" café-bar in the Riverside Development in Norwich. I shall refer to him as "the licensee". The premises have the benefit of a full justices' on-licence and a public entertainment licence. The licensee applied to the licensing justices for a Special Hours Certificate ("SHC") in order to extend his licensing hours (normally 11.00 am to 11.00 pm) to midnight from Monday to Saturday. The Claimant in the present proceedings, Luminar Leisure Ltd, was an objector before the justices. On 10 May 2002 the licensing justices refused the licensee's application. He appealed to the Crown Court. The appeal was heard by HH Judge Mellor and four licensing justices, who on 19 December 2002 allowed the appeal. The Court gave written reasons for its decision.
In the present proceedings, the Claimant seeks judicial review of the decision of the Crown Court on the ground that it erred in law or alternatively the Court exercised its discretion in a manner that was not reasonably open to it.
The statutory provisions
Sections 76(1) and (2) and 77 of the Licensing Act 1964 ("the Act") are as follows:
"76.—(1) This section applies to licensed premises or premises in respect of which a club is registered, or part of any such premises, during the time that—
(a) there is in force for the premises or part a special hours certificate granted under the following provisions of this Part of this Act; and
(b) the section is applied, under subsection (7) of this section, to the premises or part, by the holder of the licence or, as the case may be, the secretary of the club.
(2) Subject to the following provisions of this section, the permitted hours on weekdays other than Good Friday in any premises or part of premises to which this section applies shall be the periods between half past twelve and three o'clock in the afternoon and between half past six in the evening and two o'clock in the morning following, except that—
(a) the permitted hours shall end at midnight on Maundy Thursday and Easter Eve and on any day on which music and dancing is not provided after midnight; and
(b) on any day that music and dancing end between mid-night and two o'clock in the morning, the permitted hours shall end when the music and dancing end.
77. —If, on an application made to the licensing justices with respect to licensed premises in any area which is subject to statutory regulations for music and dancing, the justices are satisfied—
(a) that a music and dancing licence is in force for the premises, and
(b) that the whole or any part of the premises is structurally adapted, and bona fide used, or intended to be used, for the purpose of providing for persons resorting to the premises music and dancing and substantial refreshment to which the sale of intoxicating liquor is ancillary,
the licensing justices shall grant a special hours certificate for the premises or, if they are satisfied that part only of the premises is adapted or used or intended to be used as mentioned in paragraph (b) of this section, for that part."
Section 81, so far as material, is as follows:
"81.—(1) If at any time while a special hours certificate is in force no music and dancing licence or, as the case may be, no certificate under section 79 of this Act is in force for the premises to which or part of which the special hours certificate relates that certificate shall thereby be revoked.
(2) At any time while a special hours certificate for any premises or part of premises is in force, the chief officer of police may apply to the licensing justices or, if it was granted under section 78 of this Act, to the magistrates' court, for the revocation of the certificate on the ground that, while the certificate has been in force—
(a) the premises have not, or the part has not, been used as mentioned in section 77 or, as the case may be, section 78 of this Act; or
(b) a person has been convicted of having at those premises or that part contravened section 59 of this Act;
or that on the whole the persons resorting to the premises or part are there, at times when the sale or supply of intoxicating liquor there is lawful by virtue only of the certificate, for the purpose of obtaining intoxicating liquor rather than for the purpose of dancing or of obtaining refreshments other than intoxicating liquor; and if the licensing justices or magistrates' court are satisfied that the ground of the application is made out they may revoke the certificate.
…"
Lastly, section 83 provides:
"83.—(1) In sections 76 to 81 of this Act "music and dancing licence" means a licence granted by the licensing authority under the statutory regulations for music and dancing and authorising the keeping or using of any premises for public dancing, singing, music or other public entertainment.
(2) References in those sections to providing music and dancing and refreshment shall be construed as references to providing them on every weekday or on particular weekdays in every week, subject to any break for a period or periods not exceeding two weeks in any twelve successive months or on any special occasion or by reason of any emergency; and references in those sections to providing dancing shall be construed as references to providing facilities for dancing that are adequate having regard to the number of persons for whose reception in the premises or part of premises in question provision is made."
The findings of the Crown Court
Wetherspoons operate a number of Lloyd's No. 1 sites. The Crown Court examined the architect's drawings for the SHC application. They noted that the areas of the premises other than the lavatories were described as "drinking areas". They inspected the premises, and noted:
"—The large curving dual purpose bar – for the ordering and taking away of alcoholic and other beverages and for the ordering of food:
—The raised and railed off 'restaurant' area, part of which was clearly signed 'Diners Only'
—The small dance floor – small in relation to the drinking areas as a whole and in relation to the number of people likely to resort to the premises at busy times:
—That the preponderance of the tables etc. away from the 'restaurant' area was of a suitable height for eating meals although there were also a substantial number at coffee table height:
—That there was much open space available for occupation by standing drinkers.
—That there were a number of plasma screens displaying moving images linked to constantly playing music so places as to make it possible for virtually any customer so inclined to watch."
The Crown Court stated that there was no issue as to the adequacy of the catering facilities provided by the licensee. They accepted that it was the licensee's intention to ensure that a full menu would be available until half an hour before closing time, that is to say, until 11.30pm, and to make the small dance floor available to dancers. There was evidence of takings during the week ended 24 November 2002, which the Court accepted as typical. From those figures, it appeared that the taking of meals, often accompanied by intoxicating liquor, was the predominate use of the premises during the day, was a substantial use down to 8pm, a significant use until 9pm and little more than a token use thereafter: "The vast majority of the customers from 8pm onwards are clearly drinkers." The Crown Court stated:
"8. The irresistible conclusion is that the motivation for seeking an SHC in this case is a desire to tap into the late night drinking market. The provision of facilities for eating, the opening up of the small dance floor and the linked continuing playing of music and images are intended because it is seen that the making of such provision is a condition precedent to the grant of an SHC. The reality is that there will be very little eating and not much dancing during the extra opening hour that will be the practical outcome of success in this appeal. The music and screens will play on. That said having provided the facilities – in particular the substantial refreshment – the Appellant will have every incentive to wish to see them used."
The court referred to section 77 of the Licensing Act 1964, and continued:
"10. There being no issue as to the provisions of s77(a) it is to s77(b) that we turn. Bearing in mind that in accordance with company policy the café-bar has not sought to use its PEL pending grant of an SHC the effect of our findings of fact can be expressed as follows. We are satisfied that Lloyds No 1, Riverside, Norwich is structurally adapted, and bona fide intended to be used, for the purpose of providing for persons resorting to the premises music whether they want it or not and, for those wishing to dance...
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