THE QUEEN ON THE APPLICATION OF WESTMINSTER CITY COUNCIL v MIDDLESEX CROWN COURT -and- CHORION PLC AND FRED PROUD [2002] EWHC 1104 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 1104 (Admin)Case No Case No: CO/4223/01Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
THE QUEEN ON THE APPLICATION OF WESTMINSTER CITY COUNCILClaimantMIDDLESEX CROWN COURT -and- CHORION PLC AND FRED PROUDDefendant InterestedParties
Before
Mr Justice Scott BakerMr Timothy Straker Q.C and Mr Philip Kolvin (instructed by Westminster City Council) for the ClaimantMr Kevin De Haan Q.C and Mr Andrew Hunter (instructed by Berwin Leighton Paisner) for Chorion PLCMr David Wolfe (instructed by Bindman and Partners )for Fred Proud
[1]Mr Justice : Scott Baker The Claimant seeks judicial review of a decision of the Crown Court (His Hon Judge Lawrence and Justices) sitting at 1 Broad Sanctuary, Parliament Square, on 20 July 2001.[2]The case is about public entertainment licences and more particularly their terminal hour. The Claimant’s concern is about the situation generally rather than the particular applicant, Mr Martin, who was successful in the Middlesex Crown Court, Mr Martin is the owner of premises in Greek Street. The problem[3]The background to the present application is that there are a great many late night licensed premises in the West End of London that enjoy the benefit of public entertainment licences and night café licences. The cumulative effect is that a large number of people are walking through, or congregating in, the streets into the small hours of the morning, long after most public transport has ceased. The difficulties arising from this are considerable. They include: Criminal offences on and by visitors. Nuisance to residents by noise, litter and fouling. Attraction of unlicensed mini cabs. Traffic congestion. The nature of the problem is such that it is cumulative rather than attributable to any specific individual or licensed premises. Particular noise may be transient and part of a larger noise created away from the premises that the perpetrator has been attending. In most cases nothing is attributable to any identified misconduct on the part of licensee.[4]The Claimant’s solution is to restrict the grant of licences in areas already saturated with late night entertainment and refreshment uses. It has therefore adopted a policy with a presumption against the grant of a licence in such areas. However, an unsuccessful applicant has a right of appeal to the Magistrates Court and thence to the Crown Court. The courts have concentrated on the circumstances of individual cases rather than the general picture and where, as in the present case, the applicant is a fit and proper person and the premises are well managed, he has tended to be successful on appeal.[5]The Claimant has a promulgated policy to which I shall refer in some detail in moment. In these proceedings it seeks following relief: i) A declaration that where the policy contained at the second sub paragraph of paragraph 6.8 of the City of Westminster’s Entertainment and Night Café Licensing Policy Guidelines (as amended on 20 March 2001) applies, it is to be construed, whether by Westminster City Council or appellate courts, as a presumption. ii) A declaration that, where the said policy applies, the presumption is not rebuttable solely on proof that the premises will be well managed and that there have been no environmental or public order problems or complaints specifically attributable to those premises.[6]The Defendant, Middlesex Crown Court, has taken no part in these proceedings. Nor has Mr Martin. Chorion PLC have however participated in the proceedings as an Interested Party and have adopted the de facto role of Defendant. The other participant in the hearing has been a Mr Proud, who is a local resident and supports the Claimant.[7]I should say a word about the circumstances in which Mr Proud came to participate in the hearing. A body called the Soho Society had originally intended to intervene provided it could first obtain the benefit of a protective costs order. It faced difficulties because of an issue about whether involvement in the proceedings was within its charitable objects. Accordingly, Mr Proud, who has been represented by Mr Wolfe, has participated in its place. He has been a resident in Soho since 1968 and is a member of its licensing committee. It seemed to me appropriate to allow Mr Proud to intervene and participate in the proceedings without risk of a costs order being made against him, provided the submissions on his behalf were limited to forty five minutes, a period that I judged would not cause the hearing to run into a second day. I am satisfied that Mr Proud has a genuine interest in the outcome of the proceedings as he is a local resident.[8]Chorion’s interest is as a company that owns a number of bar night clubs in the West End.[9]It is necessary to look in a little detail at the Claimant’s Entertainment and Night Café Licensing Policy Guidelines. These were approved by their Planning and Transportation Committee on 28 March 2000 and their Planning and Licensing Committee on 20 June 2000 and amended on 20 March 2001. The document, as its introduction describes, sets out the policy framework within which the Claimant considers applications for entertainment and night café licences. It is designed to provide guidance to applicants and objectors on the general approach that will be taken. It points out the need to balance the benefits that entertainment premises bring with the effect they can have on the lives of local residents.[10]Paragraph 1.7 provides:
“We recognise that each licensing application must be considered on its individual merits. However, it is helpful for all parties to know the policy context within which applications are considered. Whilst an application is unlikely to be refused on policy grounds alone, the relevant policy will be a consideration which we will take into account when determining applications.”
[11]The Claimant seeks to distinguish the policy statements which are in bold type, from the remainder of the document, such as paragraph 1.7 which are not, but it is to be noted that paragraph 1.8 refers to “this policy document.” It is in my judgment impossible to read policy statements in the document in isolation from the remainder of the document.[12]Paragraph 4.10 draws a distinction between proposals within and without the “Central Activities Zone” (more or less the area known as the “West End”) but points out that in all cases the following, among other things, will apply:
“Whether the proposal would have a significant detrimental effect on the amenity of residents or the general environment.”
[13]Section 6 is headed:
“Location of Premises and Prevention of Nuisance.”
Paragraph 6.2 makes the point that it is a long standing policy of the Claimant that entertainment and late night refreshment premises should generally be located in the Central Activities Zone. Paragraph 6.4 points out that some areas within it are still very quite at night and it is the policy to protect these areas. Elsewhere within the zone some locations have very few residents living in particular streets and potential applicants are encouraged into these rather than other areas.[14]Paragraph 6.6 refers to the fact that the Claimant has designated certain areas as “West End Stress Areas.” One such area is Soho and Covent Garden where the pressure is so great that in these areas “it is considered that new licences should not be granted beyond 1am unless the applicant can demonstrate that there would be no harm to residential amenity or local environmental quality.” Paragraph 6.7 provides:
“We also recognise the cumulative effect that licences can have on an area. In some mixed residential and commercial areas, a few well managed entertainment premises or night cafes may be able to operate without harming local residents. In these areas, however, the cumulative effect of more and more such premises may be such that an adverse effect on local residents is impossible or virtually impossible to avoid. It is argued that in some areas the number of such premises has reached saturation point. Consequently in these areas it would be undesirable to licence any more entertainment premises or night cafes.”
[15]The core of the Claimant’s policy is to be found in 6.8 which reads:
“With these factors in mind the council as approved the following policy statements: The preferred location for entertainment premises or for premises providing late night refreshment is generally within the Central Activities Zone. Application for licences outside this time will require a higher level of justification. Within the CAZ there will be a policy presumption against the grant of new licences for entertainment premises or night cafes, (particularly those with a proposed terminal hour beyond 1 am) and against the extension of existing licences, in areas which are already saturated with late night entertainment and refreshment uses. ”
[16]Under the heading ‘Prevention of nuisance’ paragraph 6.14 makes the point that when licence applications are being considered the quality and attitude of the applicant and his staff are of vital importance. Also of importance are the practical steps applicants are prepared to take to avoid disturbing residents. The Law[17]Under the London Local Authorities Act 2000 a new schedule 12 was introduced into the Local Government Act 1963. Paragraph 1 provides for music and dancing licences to be granted by the Claimant. Licences remain in force for one year or any shorter period specified in the licence. By paragraph 19 an unsuccessful applicant has a right of appeal to a magistrates court and any person aggrieved by the magistrates’ order may appeal to the crown court. In both instances, any appeal is by a way of rehearing.[18]There are similar provisions with regard to the grant of night café licenses in the London Local Authorities Act 1990 but, as the present case is concerned with a public entertainment licence, it is unnecessary to repeat them.[19]There is no doubt that the Claimant is entitled to have a policy with regard to the grant of these licences. See for example R v Torbay Licensing Justices ex parte White [1980] 2 All ER 24 and R v Chester Crown Court ex parte Pascoe and Jones (1987) 151 JP 752. The policy must not, however, be applied blindly and routinely without the possibility of exception. The Claimant, and also any court hearing an appeal must consider each application against the background of the policy and decide whether the circumstances of the particular case justify an exception. See Lord Reid in British Oxygen Co v Board of Trade [1971] A.C.610, 625D. “The general rule is that anyone who has to exercise a statutory discretion must not “shut his ears to an application” (to adapt from Bankes L. J on p183). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say……..”[20]The present case is not a challenge to the Claimant’s policy, which has indeed already been the successful subject of judicial review application. R v Westminster City Council ex parte Chorion PLC (CO/3423/2000). When a policy is formulated there are certain procedures that require to be followed, including consultation with interested parties. This case is not about the lawfulness of the Claimant’s policy but about its application. The approach of the Crown Court[21]How should a Crown Court (or a Magistrates Court) approach an appeal where the council has a policy? In my judgment it must accept the policy and apply it as if it was standing in the shoes of the council considering the application. Neither the Magistrates Court nor the Crown Court is the right place to challenge the policy. The remedy, if it is alleged that a policy has been unlawfully established, is an application to the Administrative Court for judicial review. In formulating a policy the council will no doubt first consult the various interested parties and then take into account all the various relevant considerations.[22]In R v Sheffield Crown Court ex parte Consterdine (1998) 34 Licensing Review 19 the application concerned a provisional on licence for the sale of intoxicating liquor. The general approach of the respondent to the appeal, the licensing committee, was that it was entitled to rely on the policy set out in its policy document unless there were good reasons not to do so.[23]Turner J cited Glidewell L. J’s judgment in the Divisional Court decision in R v Chester Crown Court ex parte Pascoe and Jones [1987] 151 JP 752, 755. “It is clear law and agreed by counsel on both sides that licensing justices are entitled to adopt a general policy to be applied in the majority of cases to which a particular part of the policy applies. But they must always be prepared to consider each application on its merits and to allow exceptions to the general policy. Thus they are required to consider in relation to any particular application whether the circumstances of the application do justify an exception. If that is true of licensing justices, the same must be true of the crown court. The crown court, it was urged upon us……………should normally speaking adopt the same general policy as the licensing justices……….if that were not the case and the crown court on appeal were to depart from that policy, it would produce most unfortunate results. For myself, I accept that the crown court is perfectly entitled to say “we will normally follow the same policy as the licensing justices.” But it, like the justices, must consider whether the circumstances of the particular case do justify allowing an exception to the policy” And then a little later at 757:
“I agree that where there is the general policy and an applicant is seeking to persuade a court (licensing justices in this case) to make a proper departure from that general policy, that amongst the most important of the matters which the court or the justices must consider is the reason for the policy and whether, if they were to grant what is sought by way of exception, those reasons would still be met.”
[24]Turner J then pointed out that where an exception is being sought to a policy the burden of proving an exception should be made lies on the individual, and that it was necessary to consider whether the object of the policy would be damaged. He went on at p23:
“Given that is, in general, reasonable for there to be a policy and that there is no challenge to it, the question then arises whether it is incumbent on the committee to have to justify its decision to apply the policy, or is it for the applicant to demonstrate, if it can, that in the circumstances appertaining to its application, the policy should not apply for reasons which it has advanced and made good? As I indicated at an earlier stage of the judgment, if the proposition that it is for the committee to prove that the policy or the reasons which underpin it will be jeopardised unless the application is refused, this appears to stand the rationale for having a policy on its head….. In other words it is for the party seeking to persuade the committee to depart from its policy to show that it can be done without imperilling it or the reasons which underlie it. ”
[25]In the present case crown court found, inter alia, the following facts: There was no evidence other than that the premises were adequately conducted and there were no recorded complaints against the premises, the applicant or his company. The premises were in Greek Street which is one of three designated zones known as stress areas which had lead to the Claimant establishing a policy regarding the granting or more commonly the refusal of public entertainment licences.[26]His Hon

Judge Lawrence’s judgment continues:

“We note this policy and the reasons for it but we are neither bound by it nor deflected from our purpose in considering all of the relevant evidence bearing upon this respondent’s case. Putting it another way, we consider the evidence called before us has informed the council’s policy and that evidence is relevant evidence in this case. From that evidence we find that the pressures on the infrastructure of the local environment are clearly severely stretched by the many large places entertainment………… It is plain that we would err in law and indeed in justice if we were merely to accept the council’s policy and impose it as the decision of this court. We have weighed it carefully and have much sympathy for its purpose.”
[27]He then accepted evidence of stress in the area and continued that Mr Martin had been trading in Greek Street for over a year with no environmental, public order or other problems or complaints specific to him or his premises. Also, that the capacity of his premises was modest in relation to many others. He then said:
“Accordingly, we find no evidence specific to these premises or this respondent that permits us to support the otherwise entirely laudable attitude of the local authority and we therefore dismiss the appeal and find for the respondent. ”
[28]The judge then dealt with two specific questions on which the council had asked for assistance. However, I do not regard the answers to these questions as part of the decision in the case. The first question was whether, notwithstanding the applicant was a fit and proper person and the premises would be well managed, a public entertainment licence could be refused on the sole ground that the area was already saturated with licensed premises offering late night entertainment and that the cumulative effect of the existing premises was impacting adversely on the area to an unacceptable degree. The answer to this was “yes” provided the council acted consistently. The second question was whether in the same circumstances the council could presume, unless the contrary was proved, that additional licensed premises would add to the cumulative problems in the area. The answer to that question was “no”; each case had to be decided on its specific merits and in the light of the local area’s distress and needs.[29]It seems clear that Judge Lawrence regarded the Claimant’s policy as no more than a factor to be weighed in the scales and that in the instant case granting Mr Martin a licence was not going to exacerbate the situation. In other words, the general problem was overtaken by the circumstances of the particular case. It is easy to see therefore the Claimant’s complaint that the policy means nothing if it can be overridden every time a new applicant comes along with impeccable credentials. I have considerable sympathy with the Claimant because there has already been a successful judicial review of a decision of the Middlesex Crown Court (C0/4325/00) when the crown court had applied the original version of the policy (i.e. not to grant a licence) without exercising its discretion on the facts of the particular case.[30]Mr Straker Q.C for the Claimant submits that whilst the policy is rebuttable, it is not intended to be rebuttable simply because premises are well run by operators with impeccable credentials. Unsuitable operators would not expect to be granted a licence anyway. His submission is that any exception to the policy would need to relate to the reason for the adoption of the policy, namely the problem of cumulative impact. I can see the force of this submission, which finds support in the passage in Glidewell L. J’s judgment in Pascoe and Jones that I have cited. In my judgment, however, the difficulty is that the guidelines are not sufficiently tightly drawn for this to be achieved.[31]Mr De Haan Q.C for Chorion has no quarrel with the first declaration sought. He accepts that the policy in paragraph 6.8 of the guidelines is to be construed as a presumption. He points out that the policy sets the threshold and that the weight to be attached to it depends on what it says. The guidelines are contained in a document called “Guidance to Applicants and Objectors”. The purpose of this document is to inform potential applicants and Mr De Haan rightly poses the question: what message does the document convey? Important investment decisions fall to be taken on the basis of it. It is his submission that the document is less than clear and transparent. He makes in particular the following points. Paragraphs 6.13 and 6.14 (the importance of the quality and attitude of the applicant and his staff and their concern for local residents) appear to apply a cross the board; no zone or area is exempt. Further, the judge dealt with the case as, apparently, a ‘stress area’ case which would bring paragraph 6.6 into play and yet, submits Mr De Haan the relief sought by the Claimant is under the highlighted policy in paragraph 6.8. Paragraph 6.8 refers to areas that are almost entirely residential and to areas that are already saturated. It does not refer to ‘stress areas’.[32]Then there is paragraph 1.7, again of general application. This contains the clear statement that it is unlikely an application will be refused on policy grounds alone and that each application has to be considered on its individual merits. The purport of this paragraph is that the policy is a factor in the scales but no more than that.[33]In my judgment there is a considerable degree of ambiguity in the Claimant’s policy guidance document. In these circumstances the Crown Court cannot be criticised for regarding the particular applicant’s credentials and the fact that granting him a licence was not going significantly to affect the problem as overriding the policy presumption (whether under 6.6 or 6.8).[34]It is both understandable and appropriate for the Claimant to have a policy in the light of the problems it has identified in the West End. The policy needs to make it clear that it is not directed at the quality of the operation or the fitness of the licencee but on the global effect of these licences on the area as a whole. If the policy is not to be consistently overridden in individual cases it must be made clear within it that it will only be overridden in exceptional circumstances and that the impeccable credentials of the applicant will not ordinarily be regarded as exceptional circumstances. It should be highlighted that the kind of circumstances that might be regarded as exceptional would be where the underlying policy of restricting any further growth would not be impaired. An example might be where premises in one place would replace those in another. The guidance document needs to be redrawn so as to eliminate ambiguities and inconsistencies.[35]Mr Wolfe sought to introduce human rights issues, but it seems to me that any such issues are more relevant to the policy than to its application and it is the latter with which this case is concerned.[36]In my view the Crown Court was entitled to come to the conclusion that it did. There was nothing unlawful about its decision and the claim for judicial review therefore fails. - - - - - - - - - - - - - MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down this application for judicial review fails.PRIVATE  MR DE HAAN: My Lord, there remains the issue of cost. I know both parties have sought to assist your Lordship on that issue by submitting skeleton arguments. MR JUSTICE SCOTT BAKER: They have only just arrived, or at least one of them arrived just before I came into court. MR DE HAAN: My Lord, it did, it was in response to what was submitted by Westminster and we have obviously done the best we can to get it to your Lordship. I know your Lordship is in the middle of another case. MR JUSTICE SCOTT BAKER: I was going to ask you about that, because looking at the two skeletons it did not seem to me that it was an argument that was likely to be over in ten minutes. MR DE HAAN: With the best will in the world, not. MR JUSTICE SCOTT BAKER: And I am not anxious to prejudice the part-heard case finishing today, which it might do or should do if we do not take a chunk out of this afternoon with the costs. MR DE HAAN: My Lord, yes, one would anticipate it would take half an hour or so. MR JUSTICE SCOTT BAKER: It is the "or so" that is rather worrying. My provisional view about costs - and I have not been into the skeletons yet - is that Westminster got themselves in a position of having to pay the costs thrown away by the late amendment, within reason. But what is and what is not allowable may be an issue for the formal determination. MR DE HAAN: Yes, there is an argument about whether the costs should be paid on an indemnity basis in any event. MR JUSTICE SCOTT BAKER: That I would need a lot more persuading about. MR DE HAAN: My Lord, there is a certain part of the skeleton argument that deals with that. Obviously one wants to see a resolution of this as soon as possible, but if it is not going to prove possible this afternoon perhaps one could put it off for the earliest possible - I say half an hour, to be on the safe side one ought to say possibly an hour. MR JUSTICE SCOTT BAKER: What do the other side have to say about this? MR KOLVIN: I need to hear Mr De Haan, and we are facing a very very substantial bill, and there are issues of principle which arise, so one would not want to rush it. MR JUSTICE SCOTT BAKER: How long do you think it is going to take? MR KOLVIN: I rather agree with Mr De Haan that with a fair wind half an hour, but perhaps more likely, including judgment, 45 minutes to an hour. MR JUSTICE SCOTT BAKER: Yes, I think it is not really fair on the other case to deal with that this afternoon. There was another letter in from -- you are Berwin Leighton, are you not? MR DE HAAN: Indeed, my Lord. You are the only two parties that are involved in this. MR DE HAAN: My Lord, yes, I think Mr Powell(?) is taking no interest obviously at this stage in the proceedings. MR POWELL: I have not seen the letter. MR JUSTICE SCOTT BAKER: It was only asking for the judgment to be released. But of course, yes, because you were an interested party rather than a claimant or a defendant. MR POWELL: Yes. MR JUSTICE SCOTT BAKER: Which I indicated could be done in a way. It is not settleable, I suppose, this cost issue? Probably not. MR DE HAAN: My Lord, it looks very contentious, I am afraid. There are certain issues on which the parties are diametrically opposed. MR JUSTICE SCOTT BAKER: I think the answer then is to refix it in my list on the first date that is convenient to counsel on both sides, with an estimated length of an hour. MR KOLVIN: My Lord, the question of convenience does arise. I am afraid I am away for the next week and a half. MR JUSTICE SCOTT BAKER: Next week is vacation anyway. I am sitting most of the time, there are a couple of weeks that I am not sitting and I am sure it can be slotted in at some convenient time. If necessary I would be prepared to sit at 10.00 if that would help you to deal with it earlier. MR KOLVIN: I am sure it may, yes. MR JUSTICE SCOTT BAKER: I notice there were no typographical corrections lodged by either side, is that because there were not any or because you have not had time to look at it? MR DE HAAN: My Lord, I did scour it. MR JUSTICE SCOTT BAKER: Thank you very much. I suggest your clerks get in touch with the listing officer as soon as possible to fix a date. If you have any difficulty you can get in touch directly with my clerk. MR DE HAAN: That could be done straightaway.

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