Sheptonhurst Ltd v City of Wakefield and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE WOOLF,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 12 November 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1112-9 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 1987 |
| Docket Number | 87/1129 |
[1987] EWCA Civ J1112-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE STUART-SMITH)
Royal Courts of Justice.
Lord Justice Dillon
Lord Justice Croom-Johnson
and
Lord Justice Woolf
87/1129
MR. NIGEL PETERS (instructed by Messrs. Kaye, Tesler & Co.) appeared on behalf of the Appellant.
MR. CHARLES CROSS (instructed by Messrs. Sharpe Pritchard & Co., agents for the Solicitor to the Council) appeared on behalf of the Respondent.
I will ask Lord Justice Woolf to give the first judgment.
This is an appeal from a decision of Mr. Justice Stuart-Smith given on the 20th March, 1987 when he dismissed an application for judicial review by Sheptonhurst Limited in respect of a decision which was given by the City of Wakefield Metropolitan District Council to refuse a licence to Sheptonhurst Limited to carry on a sex shop at their premises at 71 Doncaster Road, Wakefield.
It is contended on behalf of the applicants for that licence (the appellants in this court) that on the true construction of the Third Schedule to the Local Government (Miscellaneous Provisions) Act 1982, which sets out the procedure with regard to applications for such licences, there was in the circumstances of the application no discretion in the local authority to hear objectors; or, alternatively, if there was such a discretion, the local authority should not have agreed to hear the objectors because this was unfair to the applicants.
In order to follow the argument which has been advanced by Mr. Peters in support of the appeal, it is necessary to refer to the provisions contained in the Act, since it is an important part of Mr. Peters' argument that the Schedule which deals with the application sets out a code to be followed by the local authority, and the course which the local authority adopted was not in accord with the proper application of that code.
The 1982 Act gives the local authority, under section 2, a discretion to bring into force in the area of the local authority the provisions of the Act dealing, inter alia, with sex shops, and that step was taken by the City of Wakefield Metropolitan District Council on the 25th Janary, 1984.
The consequence of the Act being applied to the area of the local authority is that, without the benefit of a licence, it becomes unlawful to conduct the business of a sex shop, and indeed it can give rise to criminal proceedings if the business of a sex shop is carried on without such a licence.
Paragraph 6 of Schedule III provides: "…no person shall in any area in which this Schedule is in force use any premises…as a sex establishment except under and in accordance with the terms of a licence granted under this Schedule by the appropriate authority."
Paragraph 6 requires that an application shall be made in writing and shall contain specified particulars.
However, sub-paragraph (4) of paragraph 6 gives a power to the local authority to waive the requirements of a licence in any case where they consider that to require a licence would be unreasonable or inappropriate. Paragraph 8 gives the local authority the power to grant an applicant a licence and the power to renew that licence from time to time. Paragraph 10 deals with the procedure for the granting of a licence in some detail. Sub-paragraph (7) of paragraph 10 provides:
"An applicant for the grant, renewal or transfer of a licence under this Schedule shall give public notice of the application."
Sub-paragraph (8) provides that that notice should be published in a local newspaper. Sub-paragraph (15) provides:
"Any person objecting to an application for the grant…of a licence under this Schedule shall give notice in writing of his objection to the appropriate authority, stating in general terms the grounds of the objection, not later than 28 days after the date of the application."
Sub-paragraph (16) provides:
"Where the appropriate authority receive notice of any objection under sub-paragraph (15) above, the authority shall, before considering the application, give notice in writing of the general terms of the objection to the applicant."
Sub-paragraph (18) provides:
"In considering any application for the grant…of a licence the appropriate authority shall have regard to any observations submitted to them by the chief officer of police and any objections of which notice has been sent to them under subparagraph (15) above."
Sub-paragraph (19) provides:
"The appropriate authority shall give an opportunity of appearing before and of being heard by a committee or sub-committee of the authority—
(a) before refusing to grant a licence to the applicant…"
Sub-paragraph (b) deals with renewing and sub-paragraph (c) deals with the transfer of a licence. Sub-paragraph (20) provides:
"Where the appropriate authority refuse to grant…a licence, they shall, if required to do so by the applicant or holder of the licence, give him a statement in writing of the reasons for their decision within 7 days of his requiring them to do so."
Paragraph 12 specifies the grounds of the refusal of a licence. Sub-paragraph (1) provides:
"A licence under this Schedule shall not be granted".
It then lists a series of persons to whom a licence shall not be granted, including a person under the age of 18.
Sub-paragraph (2) provides:
"Subject to paragraph 27 below, the appropriate authority may refuse—
(a) an application for the grant or renewal of a licence on one or more of the grounds specified in sub-paragraph (3) below"
Moving to sub-paragraph (3), that provides:
"The grounds mentioned in sub-paragraph (2) above are…"
Then (a) deals with an unsuitable applicant and (b) deals with the situation where the business will be carried on for someone else other than the applicant, (c) provides:
"that the number of sex establishments in the relevant locality at the time the application is made is equal to or exceeds the number which the authority consider is appropriate for that locality;
(d) that the grant or renewal of the licence would be inappropriate, having regard—
(i) to the character of the relevant locality; or
(ii) to the use to which any premises in the vicinity are put; or
(iii) to the layout, character or condition of the premises, vehicle, vessel or stall in respect of which the application is made."
Sub-paragraph (4) provides:
"Nil may be an appropriate number for the purposes of sub-paragraph 3(c) above."
Sub-paragraph (5) goes on to define what is "the relevant locality".
It will be noted that in paragraph 12 of the Schedule sub-paragraph (1) provides circumstances in which a licence cannot be granted by a local authority, whereas sub-paragraph (2), linked as it is with subparagraph (3), sets out grounds on which the local authority has a discretion to refuse a licence. In this case we are concerned with the discretionary grounds which are contained in sub-paragraph (3) (c) and (d).
The applicants having made their application for a licence to the local authority on the 30th March, 1984 and that application having been properly advertised, the local authority received notice of the grounds of objection from a number of objectors within the period of 28 days after the date of the application. Accordingly, on the 14th September, 1984 the local authority duly gave notice in respect of those objections in accordance with the requirements of paragraph 10(16) of the Schedule, and that notice set out the general terms of the objections. Some of those objections clearly related to matters which could not be relied on for refusing a licence under paragraph 12 of the Schedule, and to that extent were not relevant matters for consideration on the application.
Having given that notice in September, 1984, on the 4th July, 1985 the local authority wrote to the applicants referring to the provisions of paragraph 10(19), which give the applicant an opportunity of appearing before and being heard by a sub-committee of the authority, and then went on to say:
"[The authority would] be obliged if you would take notice as follows:
(1) The Sub-Committee appointed by the Council, having met to consider the application, is mindful to refuse the same on the following grounds:
(a) Character of relevant locality:
Future proposals by the local authority are to upgrade the Belle Vue area and such a retail outlet, if allowed, could sterilise the use of other shops in the vicinity.
(b) Use of premises in the vicinity:
Church within fifty yards; Cemetery within fifty yards; on main route from City Centre to Wakefield Trinity Rugby League ground, where a lot of young people attend. Its position therefore (particularly as it has a main road frontage) is not appropriate taking account of the use of the premises.
(c) Layout, condition and character of the premises:
The condition of the premises gives rise to the possible sterilisation of the enhancement of the adjoining shops.
(d) Locality:
The whole of the Belle Vue area considered to be a locality in which no such establishment should be allowed as such a retail outlet could blight the revitalisation of this area.
(2) Accordingly, a Hearing by the Sub-Committee will take place at the Town Hall, Wakefield, at 11.00 a.m. or thereabouts on Wednesday, 31st July, 1985. Please confirm to me the name or names of the person(s) who will attend on your behalf.
(3) It is intended that persons who gave proper written notice of objection shall be allowed...
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