Bushell & Ors, R (on the application of) v Newcastle Licensing Justices & Ors [2004] EWCA Civ 767

Case No C1/2004/0760[2004] EWCA Civ 767
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(ADMINISTRATIVE COURT)
The Hon Mr Justice Lightman
CO/6473/2003
Venue Royal Courts of JusticeDate Thursday 24 th June 2004
Strand,
London, WC2A 2LL
Before
LORD JUSTICE JACOBLORD JUSTICE MAURICE KAYSIR MARTIN NOURSE
Between
THE QUEENClaimant/On the application ofRespondentRON BUSHELL (and others)Respondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
John Steel QC, Gerald Gouriet and Robert Walton (instructed by Sintons) for Claimant/RespondentIan Dove QC and Charles Holland (instructed by Mincoffs) for 2 nd Defendant/AppellantJames Rankin (instructed by Sintons) for 2 nd/3rd Interested Parties
JudgmentJacob LJ :
[1]The Gresham Hotel is in Osborne Road, Newcastle-upon-Tyne. It is owned by the second defendant, Ultimate Leisure Group plc (“Ultimate”). At the relevant time Ultimate also owned a small public house called “Mims Bar” and in the same licensing district. Ultimate want an on-licence for the Gresham to run it as a public house with music. The scale would be substantial, accommodation enough for 420 people. The claimants live nearby and are representative of many local people who object to the proposed licensing of the Gresham. Trade objectors also object, two of these appearing as interested parties.[2]There are a number of routes by which premises can be granted an on-licence. They are set out in the Licensing Act 1964 as amended. This legislation is shortly to be replaced, having been repealed by the Licensing Act 2003 but only from a date to be appointed, which we understand is likely to be in 2005. We have to construe the legislation as it stands, unrepealed.[3]The routes for a justices’ licence are “as a new licence or by way of renewal, transfer or … removal” (s.3(2)). By s.3(3) these various terms are defined. “Renewal” is defined as one might expect and nothing turns on that. “Transferring a licence” means changing the holder and again nothing turns on that. “Removing a justices’ licence means taking it from the premises for which it was granted and granting it for other premises” (s.3(3)(b)). This case is about a proposed removal of the licence from Mims Bar to the Gresham. There are three sorts of removal - “ordinary removal”, “special removal” and a “planning removal or temporary premises removal” (see s.5).[4]It is evident that Ultimate could not easily obtain a licence for the Gresham by way of a new application or an ordinary removal. For these types of licence there is substantial scope for objection. The objectors are both numerous and they apparently have significant grounds. Ultimate have virtually recognised this by withdrawing an application. However, the potential grounds for objection to a “special removal” are much more limited. Ultimate say that they can use this procedure to get the licence transferred from Mims.[5]It is not, I think, necessary to go into the details of some of the earlier battles concerning the attempts to get a licence for the Gresham. It is sufficient to say that a lot of this is set out in the judgment of Owen J dated 31 July 2003 [2003] EWHC 1937 (Admin). I therefore will just set forth the facts relevant to this appeal in chronological order. 20 March 2002 The City of Newcastle-upon-Tyne Cabinet approved the making of a compulsory purchase order (“CPO”) for the St James Boulevard/Waterloo Street area. This is an area which included Mims Bar. The Council resolution authorised the purchase of affected properties by agreement in advance of any compulsory purchase order. 31 July 2002 Mims was closed for business. Its licence was suspended pursuant to the provision of s.141 of the Act (see below as to this). 1 August 2002 The City Council made the CPO and Ultimate were duly notified of this shortly thereafter. The notification included the following statement:
“Funds are currently available to support the regeneration scheme through the Grainger Town Partnership. The opportunity exists until March 2005. It is therefore imperative that land is brought into public ownership quickly to ensure that the scheme can be completed and the Grainger Town funding can be claimed by March 2005.”
Jan/Feb 2003 The public inquiry into the CPO proceeded. 12 February 2003 Ultimate gave notice of its intention to apply at the transfer session for the licensing district of Newcastle upon Tyne to be held on Tuesday 11 March for an order authorising the special removal from Mims to the Gresham. 11 March 2003 The application for special removal came before the Justices. It was adjourned. There was procedural impropriety as noted by Owen J, but nothing turns on this. 7 April 2003 The application was reconvened. The Justices decided certain preliminary issues, those that went before Owen J. 5 June 2003 The Minister confirmed the CPO. 26-28 November 2003 The Justices heard the application for special removal. 1 December 2003 The application was granted.[6]Following this the claimants sought judicial review and the matter came before Lightman J. He held (on 15 March 2004 [2004] EWHC 446 (Admin); (2004) [57] Licensing Review 13)) that the Justices were wrong to hold that the case came within the provisions concerning special removal. He held that the decision should be quashed and that the application for the grant of special removal should be remitted for reconsideration. He went further and expressed views on the “discretionary grounds for special removal”. As I read his decision these views form no part of his essential reasoning. They were not alternative reasons for quashing the decision. They were intended to be no more than “guidance”.[7]The principal issue before us therefore is whether Lightman J was right in holding that the special removal procedure could not be invoked. He called this “jurisdiction” but really it is simply a question of whether the facts at the relevant time brought the case within the language of the section providing for special removal. That is s.15 which reads: “(1) Where application is made for the special removal of an old on-licence from any premises in a licensing district to premises in the same district on the ground -(a) that the premises for which the licence was granted are or are about to be pulled down or occupied under any Act for the improvement of highways, or for any other public purpose; or(b) that the premises for which the licence was granted have been rendered unfit for use for the business carried on there under the licence by fire, tempest or other unforeseen and unavoidable calamity the provisions of s.12 … of this Act shall apply as they apply to a renewal … “ (a) that the premises for which the licence was granted are or are about to be pulled down or occupied under any Act for the improvement of highways, or for any other public purpose; or (b) that the premises for which the licence was granted have been rendered unfit for use for the business carried on there under the licence by fire, tempest or other unforeseen and unavoidable calamity[8]This provision incorporates s.12 of the Act. The effect, by s.12(4), is that in a case covered by s.15 the justices may only refuse the application on the grounds that:(a) the applicant is not a fit and proper person to hold the licence; or(b) the licensed premises have been ill-conducted or the premises to be licensed are structurally deficient or structurally unsuitable”.[9]The origins of this legislation are old indeed. They come from s.14 of the Licensing Act 1828 (sometimes called The Ale House Act 1828). This provided, inter alia:
“… if any House, being kept as an Inn by a Person duly licensed as aforesaid, shall be or about to be pulled down or occupied under the Provisions of any Act for the improvement of the Highways or for any other Public purpose; or shall be, by Fire, Tempest or some other unforeseen and avoidable Calamity, rendered unfit for the Reception of Travellers, and for other legal Purposes of an Inn; it shall be lawful for the Justices … to grant to the person whose house shall as aforesaid have been or shall about to be pulled down, or have become unfit for the Reception of Travellers, or for the other legal Purposes of an Inn, and who shall open and keep as an inn some other fit and convenient House, a Licence to sell exciseable Liquors by Retail to be drunk or consumed therein …”
[10]So a special removal may be granted where the premises “are or are about to be pulled down or occupied …” Two questions arise. First when is the date when the question should be asked and secondly what do the words mean when asked on that date?

What is the date?

[11]Neither before the Justices nor before Lightman J was there any significant argument about this. It was assumed (it seems) that the date was the date when the application was made. Before us an argument developed as to whether that was right. Mr Dove QC for Ultimate argued for the latest possible date for the self-evident reason that the later the date the more readily was it possible to argue that the premises were about to be pulled down or occupied.[12]There are, in principle, three candidates for the relevant date, namely the date of application (12 February), the date when the matter first came before the Justices (11 March) or the date when the Justices heard the matter (26-28 November). So far as this case is concerned there is no material difference between the first two of these and it is not necessary to decide between them.[13]Mr Dove contended for the November date. He said that at that time the Justices were not considering an adjourned application, they were considering a new application. That was necessary, he submitted, not least because during the intervening period a Justice had retired and been replaced by another. He pointed out that at that hearing the formalities (such as proof of the notices) were gone through again and that in substance the application should be treated as having been made on that day in November.[14]I do not see how that can be right. By s.3(4) the procedure to be followed is set out in Schedule 2 to the Act. The procedure takes place before the Licensing Committee. By s.2(5) the details of its constitution and as to the holding of licensing sessions are set out in Schedule 1. Paragraph 10 of Schedule 1 says this:
“10. A licensing sessions may, for the purpose of dealing with business not disposed of, be from time to time continued by adjournment beyond the day appointed for the holding of the sessions; but no new application may be made at any adjourned sessions and references in this Act or any other enactment (in whatever terms) to the day or first day of a licensing sessions and to the conclusion of a licensing sessions shall be taken as referring to the day appointed for holding the sessions and to the conclusion of the proceedings on that day (and, in the case of a general annual licensing meeting for which different days are appointed for different parts of the licensing district, as having reference to the one appointed for the relevant part of the district).”
[15]So if one asks by what authority was the Committee sitting in November, the answer is that it was because it was an adjourned licensing sessions. The fact that one of the justices had been replaced and at the adjourned hearing certain matters had to be reproved, does not stop it being an adjourned hearing. If Mr Dove were right and the justices were dealing with a new application then they had no power whatever to proceed by virtue of paragraph 10 of the First Schedule.[16]I am fortified in this belief by the fact that the notice of application for a transfer specified the original date of 11 March. If Mr Dove were right then it seems to me that his clients would not have given a relevant notice at all. He sought to get round this by saying that his clients had given notice of application to the sessions and this being an adjournment of the sessions his notice was in order. His clients were making an application at the advertised sessions, albeit adjourned. I do not see how this gets round the provisions of paragraph 10 of Schedule 1. So I am of the opinion that what the Justices were dealing with in November was the adjourned application initially made on 11 March.

When must the conditions be satisfied?

[17]I turn back to the language of s.15. It says “where application is made … on the ground that the premises … are or are about to be …” That strongly suggests that at the time of the application the specified conditions must subsist. I think this is confirmed by the consideration that otherwise the passage of time caused by adjournments and the like could bring a case which was improperly brought initially into a proper case. That would give applicants for special removal every incentive to cause delay in the hope that they would have a sufficiently immediate case to bring them within the section. I therefore think that the justices and Lightman J were right in their assumption that the relevant date was at least by 11 March. It may have been, as I say, the date of the original notice of application but there was no material change of facts between those dates.[18]The position when the application was made was this, in summary: i) The Council had resolved to make the CPO. In so doing it had said (see passage quoted above) that it was intended to complete the scheme by March 2005. ii) The Council had made the CPO. iii) Mims had closed for business and its licence had been suspended under s.141. iv) The CPO had not been confirmed. The public inquiry was either still running or had just finished.[19]Do these facts mean that Mims in March 2003 was “about to be pulled down or occupied for a public purpose”?. Lightman J held that the Justices were wrong to say that the mere making of the CPO was enough. He said:
“The formula "about to be" as a matter of language goes beyond allowing or requiring the Justices to take account of likely future events and connotes both practical certainty and imminence of outcome.”
[20]Thus a mere probability was not enough. He also held the Justices were wrong to take into account the fact of the suspension under s.141. This authorises the Commissioners of Customs and Excise to grant a certificate of suspension of a licence which keeps the licence alive where "the business is temporarily discontinued by reason of the compulsory acquisition, or the proposed compulsory acquisition, of licensed premises in which the business was carried on".[21]I think that Lightman J was right in his construction of s.15. It does not say, as does s.141, that a proposed CPO is enough to bring the section into play. Special removal applies only in limited cases bordering on necessity and urgency. One can get the idea of what is meant from the origin of s.15 back in 1828. The Act was concerned with what happened if an inn was about to close, not only from the point of view of the innkeeper, but also from the point of view of travellers. The about-to-be-pulled-down criterion is linked along with calamities. It is some force majeure either of God or man which is forcing the innkeeper into a removal. The stately progress of a CPO – its confirmation and then possible implementation - is altogether a slower kind of thing. Only towards the end of the process, when one reaches a point at which one can say that pulling down or occupation for a public purpose is truly imminent does the section come into play.[22]Mr Dove suggested that the 1964 Act should not be read in the light of its history, that in 1964 Parliament had in mind a wider meaning. He pointed out that the original language had been re-written so as to put calamities into a different paragraph from obstacles caused by the authorities. I can see no such Parliamentary intention. All that was being done was to tidy up the 1828 language.[23]Lightman J appears to have been of the opinion that the date of confirmation of the CPO would be enough. I am by no means certain that that is the case. Mr Dove submitted that it was. But by the time the Justices came to consider the matter in November (the date which I have rejected) no more evidence other than the confirmation in June was placed before the Justices. The fact is that the best laid plans of mice and men oft go astray. Compulsory purchases are not infrequently made and then not followed through. Justices who are considering an application under s.15 need to be appraised of exactly what the position is at the time of application, not only as a matter of formal making or confirmation of a CPO but whether it is being followed through and when.[24]Lightman J supported his conclusion by referring to Bentzen v Taylor [1893] 2 QB 247 and R v Goodwin [1944] 1 KB 518 at 523. For myself, I do not think that these cases help either way. True it is that nearly similar words in very different contexts were construed in the same way. But because the contexts were different it by no means follows that the similar words would have the same meaning in the licensing context. The real point is that the meaning in that context conveys immediacy. “Occupied … for a public purpose”[25]Mr Dove ran an alternative argument. He submitted that the Council were actually in occupation of the premises from the time they had bought them. Moreover he submitted they were in occupation for a public purpose, namely redevelopment. Hence there was no need to go into the question of “about to be pulled down”. Nor was there any need to go into “about to be occupied”. For the premises were actually “occupied”. He took us to a case under the Occupiers Liability Act, Harris v Birkenhead Corporation [1976] 1 WLR 279. For the purposes of that Act it was held that the Corporation, having the immediate right of control of the property became its occupier as soon as a tenant had left. In other words the Council occupied the vacant property. I do not think this case assists at all. The purpose of the Occupiers Liability Act is miles away from considerations of licensing. The point was that under the Occupiers Liability Act an occupier has a duty to protect infants from a danger of trespassing. The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection. The concept of occupation for the purposes of the Occupiers Liability Act is quite different from a concept of occupation for a public purpose within the meaning of s.15 of the Licensing Act 1964. Indeed, as Mr Steel QC for the claimants pointed out in relation to occupier’s liability there can be more than one occupier.[26]So again it is context that matters. Does “occupied … for a public purpose” include mere public ownership of a vacant property? Put that way the question answers itself – obviously not.

The “Absurdity” argument

[27]Mr Dove also argued that the “imminence” meaning produced what he said was an absurd result: that a licensee could only get a special removal if he hung on in a derelict area until the last minute. Mr Steel said that there was no need for him to do so, he could apply for an ordinary removal or indeed apply for a new licence. To that Mr Dove responded that these were hollow words: because it was self evident that his clients would not be given either of these owing to local objections. I do not accept this response. Mr Dove is right that these other options were not open so far as removal to the Gresham is concerned. It by no means follows that an ordinary removal could not have been obtained in respect of other premises within the district. An ordinary removal to premises perhaps of the same size as Mims might well have been much easier to achieve. The formidable opposition to Ultimate’s plans for the Gresham are based upon its substantial scale and location. In truth although Ultimate are seeking removal of the licence, they are not really seeking removal of the old business of Mims but seeking to set up a wholly new business on a quite different scale in a different part of the City. That is not an objection in law to special removal but it is an answer to Mr Dove’s “hanging on” point.[28]In the result I would hold that Lightman J was right to say that at the time of the application (which I take to be March 2003) the premises were not within s.15(1)(a).)

Quash or remit?

[29]Lightman J decided, as I have said, to “give guidance” and to remit the matter to the Justices. I see no point in remitting the matter to the Justices. The fact is that the application when made was incompetent because it was not within the section. The Justices had no option but to refuse it. On the language of the section it was not open to them to take into account later events (e.g. the confirmation of the CPO). So I would simply quash the decision. That of course leaves Ultimate free to make a fresh application. We are told that the Mims premises have now been pulled down and it may be that on such an application the Justices will find that s.15(1)(a) has been satisfied.

Lightman J’s “Guidance”

[30]Lightman J expressed views both on the expert and other evidence that had been provided to the Justices about this case and more generally upon the procedure concerning expert evidence to be followed by the Justices in general. I do not think we should go into the guidance suggested for the purposes of this particular case. None of it was a ground of Lightman J’s decision. Nor do I think, if Ultimate make a fresh application for special removal, should the justices who consider it regard themselves as in any way bound by the “guidance”. They will have to make up their own minds on the evidence before them as to whether the objections are made out. For that purpose they will have to determine the facts and consider whether they bring the case within the grounds of objection.[31]Lightman J also indicated more generally a concern about how detailed expert evidence came to be presented to the justices. For licensing justices there is no code of procedure for expert evidence akin to Part 35 of the CPR. Doubtless that is true of many other judicial or quasi-judicial tribunals. I doubt that it is appropriate to graft on to all these the detailed Part 35 procedure. On the other hand there is a lot to be said for avoiding the situation which happened in this case, namely the presentation for the first time on the day of detailed technical evidence. If that is thought likely to happen then it makes sense for exchange of technical evidence in advance and possibly a meeting of experts to narrow down issues. A lot must turn on how detailed and how complex the evidence is, as well as the skills and training of the tribunal concerned. And if a tribunal finds that it is given on the day too much to digest immediately it can always exercise its power of adjournment. Further than this I do not think it right or appropriate to go.

Lord Justice Maurice Kay:

[32]I agree and would add only this. Licensing decisions usually involve the balancing of conflicting interests. Mr. Dove’s submissions are predicated on the contention that so great is the impact of a compulsory purchase order on the business of a licence-holder whose premises are subject to the order that the policy of the legislation, expressed through sections 12 and 15, is to tip the balance in favour of the licence holder to an unprecedented extent and that, in construing the statutory provisions, it is incumbent upon the Court to give effect to that policy. In my judgment that contention is too one-sided. Special removal can have serious consequences for other interests such as have been articulated in this case. Those consequences occur in circumstances where the licensing justices have a limited discretion to refuse and where objectors have no right of appeal against a grant of special removal, only the possibility of judicial review. It is an exceptional procedure and, for my part, I do not think that the courts should strain to construe the provisions of the statute in favour of the licence-holder and against the other interests. On the contrary, they should be strictly construed.

Sir Martin Nourse:

[33]I agree with both judgments.

Order

Appeal dismissed with costs. 2nd and 3rd interested parties do not get their costs. Permission to appeal to the House of Lords refused. Interim order for payment of £50,000 is to be made not to take effect until after all possibilities of appeal are exhausted, to be paid within 7 days thereafter. (Order does not form part of the approved judgment)

Cited in 1 later judgment