Westminster City Council v O'Reilly
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MACKAY |
| Judgment Date | 28 February 2003 |
| Neutral Citation | [2003] EWHC 485 (Admin) |
| Docket Number | CO/5669/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 February 2003 |
[2003] EWHC 485 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Mackay
CO/5669/2002
Appeal By Way Of Case Stated
Mr James Rankin (instructed by the Director of Legal Services, Westminster City Council, London SW1) appeared on behalf of the Appellants.
Mr J Saunders QC (instructed by Messrs Jeffrey Green Russell, London W1) appeared on behalf of the Respondents.
Part of the Café Royal complex at Glasshouse Street, London W1, is known under the style "Elysium". On the ground floor there is a reception area, bar and servery, and a kitchen. At the basement level there is a second kitchen, a restaurant and a lounge. Entrances to both floors are to be found at the level of the ground floor. There are two: one in Regent Street and one in Glasshouse Street itself. Access to the basement is internal; that is to say, through the ground floor.
The licensing history relating to Elysium is as follows. There was a provisional justices' on-licence in existence in respect of both ground and basement floors which was declared final on 4th May 2002. It is subject to certain conditions which are not material to this appeal. On 18th December 2001 the Licensing Committee for South Westminster granted a provisional Special Hours Certificate ("SHC") pursuant to section 77A of the Licensing Act 1964, to which I will have to return. As they say in their case stated, that certificate covered both the basement and the ground floor, as were depicted in certain plans deposited with them. Also on that date a provisional Music and Dancing Licence ("MDL") was granted by Westminster City Council ("Westminster") under section 52 of the London Government Act 1963. One condition of the MDL, as granted, was that it allowed the premises to remain open till 1.00am. There was an appeal by the licensees to the Crown Court, which resulted in that terminal time limit being extended to 3.00am. The MDL was made the subject of a full grant on 7th May 2002, to expire after 31st October 2002. It said on its face that it licensed the use of the basement of the premises for music and dancing subject to certain conditions, not all of which are relevant for the purposes of this appeal. The first condition allowed the premises to remain open for the purpose of this licence up to 3.00am on Mondays to Saturdays. Mr Saunders QC, on behalf of the licensees, harbours reservations —indeed, I think he would put it higher than that —as to whether the restriction apparent on the face of the MDL as being to the basement only should have appeared on it, but realistically accepts, for the purpose of my task today, that I can only proceed on the basis that the MDL was issued with that restriction.
This is an appeal by way of case stated. The stated case discloses further facts which are relevant and which have required substantial amendment by consent in the light of further investigations undertaken after I granted a short adjournment of this appeal last week. All the references in the stated case to plans 105E and 106A as being the approved deposited plans are agreed to be wrong and should read as referring to plans 105F and 106D. The significance of that difference for the purposes of this appeal is that on the latter set of plans it was made plain that the area in respect of which the SHC was sought was both floors. Also there were physical modifications of the structure of the premises apparent in those plans and those were approved, all contrary to what was said in the case as stated by the justices.
Additionally, on 30th April 2002 the environmental health officer of Westminster wrote to the justices drawing their attention to the fact that the MDL related to the basement only; but other evidence before me is to the effect that the justices' clerk has now no record of that letter having been received. On 3rd May Westminster wrote again to the justices reiterating that position. The evidence from the justices' clerk is that after the hearing which is questioned in this appeal (that is to say, the hearing of 7th May) she found this letter attached to papers relevant to the application, but there was no file note to indicate that the letter had been brought to the attention of the justices at the hearing. Paragraph 4 of the stated case was to the effect that Westminster, among others, had raised no objection to the grant of the application at the hearing. That must now be read subject to further agreed amendments of the case to the effect that a representative of Westminster did attend the hearing and drew the attention of the justices to the content of the letter of 3rd May 2002. Whether that actually constituted an objection properly so called is a rather fine point and one not necessary to be decided, it seems to me, by me today.
This, therefore, is an appeal by way of case stated against the decision of the Licensing Committee, sitting at Horseferry Road Magistrates' Court on 7th May 2002, by which the provisional SHC granted on 18th December 2001 was confirmed and made final. As I have already stated, but should repeat, that related to both floors of Elysium, whereas the MDL covered the basement only. The justices expressed their conclusions in this way:
"We were of the opinion that as the premises were licensed for intoxicating liquor, that a local authority Music and Dancing Licence was in force and that those parts of the premises to which the Special Hours Certificate was to apply had been completed in accordance with the approved deposited plans the Provisional Grant of the Special Hours Certificate should be declared Final in accordance with section 77A(3)."
They framed the following question for the opinion of this court:
"Whether we were correct in law in declaring the Provisional Special Hours Certificate under section 77A(3) of the Licensing Act 1964 final and thereby, an extension in the permitted hours until 3.00am in respect of a part of the premises for which there was no public entertainment licence in force."
The four persons named as the successful licensees in the final certificate are the respondents to this appeal. They support the justices' decision and would answer this question affirmatively.
At an earlier hearing it seemed that there was to be an argument by the respondents as to the lack of standing of Westminster to make this appeal under section 111 of the Magistrates' Courts Act 1980. But that no longer being pursued, it is necessary to look at the substantive issue in dispute.
The original section 77 of the Licensing Act 1964 allowed for the grant of an SHC in respect of licensed premises which were, among other things, structurally adapted and bona fide used, or intended to be used, for music and dancing and substantial refreshment. There was seen to be a disadvantage to this scheme in that the intending operator of premises who hoped to benefit from the grant of such a certificate had to take something of a gamble. He had to acquire and structurally adapt his premises in the hope that the justices would, in their discretion, grant him an SHC on completion. Though he could acquire a provisional justices' on-licence and a provisional MDL, he could not acquire a provisional SHC. So in 1996 there was added by amendment to the Act a new section 77A which provided for such a provisional grant.
As section 77A is at the heart of this appeal, I must read its relevant parts:
"(1)Where, on an application made by a person interested in any premises in respect of which a grant or provisional grant of a justices' licence has been made and which are to be, or are in the course of being, constructed, altered or extended, the licensing justices are satisfied -
(a)that the premises are …
(ii)premises for which a music and dancing licence is in force,
(b)that the whole or any part of the premises is intended to be used, and, if completed in accordance with plans deposited with the licensing justices, will be structurally adapted, for the purpose of providing for persons resorting to the premises …
(ii)… music and dancing and substantial refreshment,
to which the sale of intoxicating liquor is ancillary,
the licensing justices may make a provisional grant, with or without limitations, of a special hours certificate for the premises or, if they are satisfied that part only of the premises is intended to be used or will be adapted as mentioned in paragraph (b) of this subsection, for that part."
In this case, when such an application was made under this section and granted on 18th December 2001, the position was as follows. First, the whole of the premises known as Elysium (that is to say, the ground and basement floors) were licensed premises within the meaning of that section. Secondly, an MDL was in force, not for the whole of the premises, but for part of them, namely the basement only. Thirdly, that part of the premises, and not the whole of them, was intended to be used for, and was structurally adapted for providing, music, dancing and substantial refreshment, to which the sale of intoxicating liquor was ancillary. In the event the justices granted a provisional SHC in respect of the whole premises; that is to say, both floors.
Westminster argue that, as it is the case that the ground floor does not have the benefit of an MDL and it cannot be, or have been, the intention to provide music and dancing facilities on that floor, the justices had no power to grant an SHC, provisional or final, in respect of that floor....
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