R Star Oyster Ltd and the Casino Ltd v Guildford Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 10 April 2014 |
| Neutral Citation | [2014] EWHC 1412 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 April 2014 |
| Docket Number | CO/3225/2013 |
[2014] EWHC 1412 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Jay
CO/3225/2013
Mr M Pascall and Dr A Bowes (pupil) (instructed by Direct Access) appeared on behalf of the Claimant
Mr J Canon (instructed by Satish Mistry Executive, Head of Governance GBC) appeared on behalf of the Defendant
This is an application for judicial review brought with the permission of Lewis J to challenge various decisions of the Guildford Borough Council which is the relevant licensing authority under the Licensing Act 2003 in respect of the subject premises. There are three decisions under challenge, namely first a decision dated 19 December 2012 to reject the claimants' application — at this stage I am not differentiating between the two claimants — for a minor variation of its premises licence. Secondly, a decision dated 3 January 2013, to reject its application for a transfer of the premises licence and for a minor variation of it. Thirdly, in a decision dated 25 January 2013, to reject the claimant's application for a minor variation of the premises licence.
The Essential Factual Background and Chronology of Events
The first claimant, Star Oyster Limited, " Star", is the freehold owner of two night club premises in Guildford; The Casino & Players' Lounge and Bar Mambo. Both premises are covered by licences granted in respect of licensable activities under the Licensing Act 2003. The second claimant, Casino Limited ("Casino") is under the same ownership as Star and the two companies are commercially associated by virtue of their operations. Both premises, which are housed within the same building, are currently leased to a company called Luminar Leisure Limited ("Luminar") which is the holder of both licences. There is a fairly lengthy licensing history to this case which I propose to summarise as follows:
In December 2008, the council undertook a review of Star's premises licence, that is to say licence GUPLA 0015, following a number of assaults by door supervisors supplied by Star and/or by an associated company. The council imposed conditions on the licence and the claimant appealed to the Magistrates' Court. The relevant condition stipulated that door staff be supplied by organisations with SIA Approved Contractor status. Universal Security Management Limited, a wholly owned subsidiary of Star, subsequently obtained that status.
On 23 September 2009, an agreement was reached between the parties during the course of an appeal hearing as to the form of words of the condition relating to door staff, namely condition G10. The relevant wording was as follows:
"The premises' licence holder will use best endeavours to achieve Approved Contractor status from the Security Industry Authority. An independent audit of the door supervisor function is to be completed and disclosed to the licensing authority by 1 April 2010 if such status has not been achieved by that date. From 1 July 2010, the premises shall only use door staff supplied by organisations or companies who have achieved Approved Contractor status from the Security Industry Authority."
In June 2010, Star applied to have condition G10 removed from the licence. In November 2010, the licensing sub-committee refused the application and Star appealed. On 8 March 2011, Star agreed to grant a tenancy to a company called "We Are: Dance Ltd" which then applied for, and on 7 April 2011 was granted, a premises licence; that is to say licence GUPLA 0464, which was in identical terms to GUPLA 0015. The formal letting of the premises to We Are: Dance Ltd took place, I think, in October.
On 3 November 2011, the Guildford Magistrates' Court heard the appeal against the council's refusal to remove condition G10 and dismissed it. The judgment of District Judge Workman is available and I quote from the relevant part:
"Mr Harper on behalf of his Company is concerned that the lease may be surrendered (there is a break clause after 12 months) and therefore he wishes to retain his own Premises' Licence but with his name as the Designated Premises Supervisor. He maintains that the difficulties of 2008 has been corrected, that his Company is fully cooperative with the police and Environmental Health and there is nothing in his character or antecedents which would preclude him from the role of the Designated Premises Supervisor. He maintains that the condition relating to the door staff is unduly onerous and that such a condition has not been imposed on any other licensed premises.
The police and Environmental Health oppose both applications. Although disputed by Mr Harper the police maintain that the premises until very recently has been the worst performing premises in Surrey. They point to obstacles that Mr Harper and his Company have placed in relation to the provision of CCTV footage needed for police investigations and to a lack of cooperation generally.
Mr Harper on behalf of his Company consented to the conditions relating to his door staff. It was a condition which was reasonable, proportionate and necessary for the prevention of crime and disorder and appears to have had a positive been which continues in the new licence. I am satisfied that the Licensing Authority were entirely correct in requiring the condition to remain.
Mr Harper does not at the present time have premises over which he can exercise the role of Designated Premises Supervisor. He voluntarily removed himself from that role. It is apparent from his evidence that he was not in the country for much of the time when serious incidents were occurring and I am not satisfied from his evidence that he recognises the gravity of those incidents or the degree to which he is expect to cooperate with the police. Despite his long experience in the licensed trade I am of the view it would not be right for him to assume the responsibility of a Designated Premises Supervisor for premises so large and volatile as these particular nightclub premises."
On 27 March 2012, We Are Dancing Ltd applied for and was subsequently granted a minor variation of licence GUPLA 0464 in relation to condition 10. The revised condition named a specific security company, Bridgegate (GB) Security Ltd, with permission to revert to the original wording on transfer. Surrey Police agreed to this variation.
On 18 October 2012, following the grant of a lease of the premises to Luminar in May, We Are: Dance Ltd transferred licence GUPLA 0464 to Luminar and condition G10 reverted to its original wording. On 2 November Luminar applied for a minor variation of GUPLA 0464 to amend condition G10 so as to permit their intended contractor, DGL Security Limited, to provide door staff until such time as they achieved Approved Contractor status which status was being sought at that time. Surrey Police was consulted and had no objection. On 20 November 2012, the variation was granted and new condition G10 read as follows:
"Any door supervisor on duty at the premises must be provided by a contractor who has Approved Contractor status with the Security Industry Authority or be using its best endeavours to achieve such accreditation."
On 28 November 2012 Star applied for a minor variation of licence GUPLA 0015 to mirror Luminar's. On 19 December 2012 the defendant's officer, Mr Peter Muir, refused the application. His reasons were set out in an email which appears at page 131 of the bundle. I set out the relevant part as follows:
"Having carefully considered the proposed variation to the condition of your licence, the licensing authority are of the opinion that the proposed variation to revise the condition G10 would no longer have the same intention and effect as the original condition, and therefore this variation to the condition cannot be accepted as a minor variation. The reason for this is the addition of the wording 'or be using its best endeavours to achieve such accreditation'. As there is no enforceable definition of what 'best endeavours' entails or how this could be achieved, in reality this could remove the requirement for the contractor to have or ever achieve approved contractor status. A full variation would be required to allow responsible authorities and other persons to fully consider the possible impact on the licensing objectives of the wording of the proposed condition as outlined in the minor variation application. It is not felt that the proposed condition is enforceable in its current wording."
Mr Muir then invited the claimants to make an application using the ordinary procedure, reminded the claimants that there was no right of appeal against the Defendant's decision, and indicated that if dissatisfied with the decision, then judicial review was always a possible remedy.
On 20 December 2012, Star applied for a transfer of GUPLA 0015 to Casino and the following day applied on behalf of behalf of Casino for a minor variation of this licence to vary condition G10 as per the unsuccessful application made on 28 November. On 3 January 2013, both applications were refused pursuant to Section 16 of the Licensing Act 2003 on the basis that Casino was not intending to operate from the premises because Luminar was. On 4 January 2013, Star made another application for a minor variation of GUPLA 0015 to substitute the "best endeavours" condition for the existing condition. Surrey Police were consulted and objected on 17 January 2013, suggesting...
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