R (Luminar Leisure Ltd) v Norwich Crown Court; Hitchcock, interested party
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Longmore,Lord Justice Peter Gibson |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWCA Civ 281 |
| Date | 07 April 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2003/2240 |
[2004] EWCA Civ 281
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (ADMINISTRATIVE AND
DIVISIONAL COURT)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Laws and
Lord Justice Longmore
Case No: C3/2003/2240
Sir R Beckett QC and Mr S Walsh (instructed by J D Wetherspoons Plc) for the Appellant
Mr G Gouriet (instructed by Poppleston Allen) for the Respondent
INTRODUCTORY
This is an appeal, with permission granted by the judge below, against a decision of Stanley Burnton J given in the Administrative Court on 3 October 2003 when he granted the application of Luminar Leisure Ltd, the respondents before us, for judicial review and quashed an order made in the Norwich Crown Court on 19 December 2002. By that order His Honour Judge Mellor QC and four licensing justices had allowed the appeal of Aaron Hitchcock, the appellant before us, against a refusal by licensing justices on 10 May 2002 of his application for a special hours certificate ("SHC") to extend his licensing hours by one extra hour until midnight every day from Monday until Saturday. I shall describe the premises in respect of which the application was made and the other facts of the case shortly.
The effect of the Crown Court's decision was of course to grant the SHC which was sought. The effect of the quashing order made by Stanley Burnton J in the Administrative Court was to revoke the SHC thus granted. However the judge also ordered that the matter be remitted to the Crown Court for the appellant's appeal to be heard afresh. Although there is no respondent's notice, after some discussion in the course of argument Mr Gouriet for the respondents has invited us not only to dismiss the appeal but also to revoke the order of remittal to the Crown Court. That is on the footing, as Mr Gouriet would have it, that a SHC could not lawfully be granted on the facts of this case; and in consequence there is nothing for the Crown Court to consider at any further hearing. The learned judge below, having as I have said granted permission to appeal to this court, also stayed the effect of his order for 21 days. On 21 October 2003, Pill LJ extended the stay until the determination of the appeal.
THE STATUTE
It is convenient first to set out the relevant statutory materials which are contained in the Licensing Act 1964 ("the 1964 Act") as amended. Although some other provisions were referred to in the course of argument, I may confine myself to the material parts of ss.77 and 81:
'77. If, on an application made to the licensing justices with respect to licensed premises…, the justices are satisfied –
(a) that the premises are –
(i) casino premises, or
(ii) premises for which a music and dancing licence is in force, 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 –
(i) in the case of casino premises, gaming facilities and substantial refreshment, and
(ii) in the case of any other premises, music and dancing and substantial refreshment,
to which the sale of intoxicating liquor is ancillary, the licensing justices may grant, with or without limitations, 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."
Until an amendment to the statute made in 1988, the justices' function under S.77 was mandatory, not discretionary. The earlier form of the section had the words "the licensing justices shall grant a special hours certificate …". But I should proceed to s.81:
'81(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 … 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 S.77 …;
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 an appropriate purpose; and if the licensing justices… are satisfied that the ground of the application is made out they may revoke the certificate."
S.81(2)(a) defines "appropriate purposes", so far as relevant to the facts of this case, as dancing and the obtaining of refreshments other than intoxicating liquor.
THE FACTS
I turn to the facts. What follows is partly adaptation of the narrative given in the Crown Court judgment, partly direct citation of what was there said. The premises are known as the Lloyd's No 1 Café-Bar and are situated on the Riverside Development in Norwich. The appellant is the manager. Lloyd's No 1 is one of 56 such premises, the Lloyd's No 1 chain. There are extant SHCs in respect of the 40 of them. The chain belongs to J D Wetherspoon plc, which also operates four other licensed premises in Norwich. The respondents are a trade competitor of Wetherspoon. They too operate licensed premises in Norwich. They appeared as objectors to the appellant's application for a SHC before the licensing justices, and were respondents to the appellant's appeal in the Crown Court.
A full justices on-licence had been granted in respect of the premises on 13 November 2001. A public entertainment licence was also granted. HHJ Mellor and the justices sitting with him inspected the premises. What they say is summarised in the Crown Court judgment thus:
"We 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 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 placed as to make it possible for virtually any customer so inclined to watch."
Then after reciting certain evidence, the Crown Court arrived at these factual conclusions:
'7. … [I]t would appear that the taking of meals, often accompanied by intoxicating liquor, is the predominant use of the premises during the day, a substantial use down to 8 pm, a significant use until 9 pm and little more than a token use thereafter. The vast majority of the customers from 8 pm onwards are clearly drinkers. By reference to the published accounts of the respondent he [the witness Mr Hutson, Wetherspoon's managing director] pointed out that in an analogous premises to Lloyd's No 1's – Chicago Rock Cafés – 11% of the takings were for food itself (as against the appellant's 17.7%) and that in the case of their nightclubs food represented no more than 1%. In the latter, of course, dancing might be expected to play a very much more significant part than it does in the appellants' premises.
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 RESULT IN THE CROWN COURT
There is no contest but that the premises are structurally adapted for the provision of music and dancing and substantial refreshment within the meaning of s.77(b) of the 1964 Act. So much was accepted by the Crown Court. The case turns on the interpretation and application of the words in s.77(b) "that the whole or any part of the premises is … 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 Crown Court held (paragraph 11), by reference to the decision of the Divisional Court in Richards v Bloxham (1968) 66 LGR 739 (to which I will have to return), that the requirement for the provision of music and so forth in s. 77(b) "is a requirement to provide facilities and not a requirement that customers use them". Then in paragraph 12 the court held that the concluding words of s. 77(b), "to which the sale of intoxicating liquor is ancillary", likewise relate to "the facilities intended to be provided". In paragraph 13 they refer to, but do not cite, certain further authorities and say this:
"In the light of those authorities we have considered the facilities to be provided and the use of the premises on a whole day basis, placed little...
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