Bushell & Ors, R (on the application of) v Newcastle Licensing Justices & Ors

Neutral Citation No. [2003] EWHC 1937 (Admin) IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION ADMINISTRATIVE COURT Between : Before : THE HONOURABLE MR JUSTICE OWEN - - - - - - - - - - - - - - - - - - - - - THE QUEEN On the application of BUSHELL AND OTHERS - and - NEWCASTLE LICENSING JUSTICES ULTIMATE LEISURE RINDBERG HOLDING COMPANY LIMITED PEEL HOTELS PLC NEWCASTLE CITY COUNCIL Case No: CO/1794/2003 Royal Courts of Justice Strand, London, WC2A 2LL Thursday 31 July 2003 Claimants Defendants Interested Parties - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Gerald Gouriet (instructed by Eversheds) for the Claimant Mr James Rankin (instructed by Eversheds) for the Interested Parties Mr John Saunders QC (instructed by Mincoffs) for the Second Defendant Mr Julian Knowles (instructed by Mincoffs) for the Second Defendant - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Owen: 1. 2. 3. 4. The Claimants live in close proximity to premises owned by the Second Defendants, Ultimate Leisure PLC (Ultimate), and formerly known as the Gresham Hotel, Osborne Road, Jesmond, Newcastle upon Tyne. The Claimants seek judicially to review decisions made by the First Defendants, the Newcastle Licensing Justices, in relation to an application by Ultimate for the special removal of a justices’ on-licence to the Gresham Hotel (The Gresham) under Section 15 of the Licensing Act 1964. Rindberg Holding Co. Ltd. (Rindberg) and Peel Hotels Ltd. (Peel) are interested parties in the claim for Judicial Review. Both own licenced premises in Osborne Road, Rindberg the New Northumbria and Peel the Caledonian Hotel. The application for Judicial Review arises out of attempts by Ultimate to obtain a justices’ on-licence for the Gresham. In October 2000 and again in November 2002 Ultimate applied for a justices’ on-licence for the premises. Each application was opposed by the police, by the Newcastle City Council and by a substantial number of local residents on grounds of public disorder, drunkenness, noise-nuisance, litter, vandalism, and road safety. Both applications were withdrawn. But in November 2002 Ultimate applied for the special removal to the Gresham of an old on-licence that it held in relation to premises at 3 Waterloo Street, Newcastle upon Tyne, known as “Mim’s Bar”. The initial application was unsuccessful. A further application for a special removal was made in February 2003; and the Claimants seek to judicially review decisions made by the First Defendants, the Newcastle Licensing Justices, in relation to Ultimate’s second application for a special removal. 5. The Factual Background The Gresham is located in Jesmond, a high density residential area of Newcastle upon Tyne. Osborne Road is the main arterial road running through the area. In recent years there has been a proliferation of licenced premises in Osborne Road. They are illustrated on the plan exhibited to the witness statement from one of the Claimants, Ronald Bushell. The proliferation of licenced premises has had consequences that are understandably of concern to the local residents. The position was succinctly summarised in a letter from the Northumbria police to the Clerk to the Licensing Justices dated 4 April 2003 in relation to the special removal application in the following terms “The development of Osborne Road has seen an increase in incidents of disorder and drunkenness and in complaints of anti-social behaviour from members of the public and residents.” The Gresham was formerly an hotel with fifteen bedrooms and a residents only lounge and bar on the ground floor. In 1998 a café /bistro with bar was opened in its lower ground floor. On 3 July 2000 an option to purchase the Gresham was purchased by a subsidiary of Ultimate. On 22 September 2000 Ultimate applied to Newcastle City Council for planning permission to build an extension to the rear of the Gresham. The proposed extension was to the lower ground and ground floor of the hotel to encompass a café/bar, new reception area and kitchen facilities. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. In October 2000 Ultimate applied for a provisional full on-licence for the Gresham. The police, the Newcastle City Council, and local residents strongly objected to the application. The police sought the imposition of a condition, should a licence be granted, to the effect that there should be no off sales so that the forecourt and car park could not be used to accommodate customers over and above the 420 capacity of the licenced area with the building. It appears that Ultimate were not prepared to accept such a condition. On 3 October 2000 Ultimate acquired the business of the public house known as the “Frog and Nightgown” which it renamed Mim’s Bar. Prior to purchasing the business Ultimate established that the premises had a full justices on-licence with “old on-licence” status as to defined by Section 12(1) of the Licensing Act 1964, the licence having been in force continuously since 1872. Mim’s opened for business in November 2000. 2 July 2001 Ultimate acquired the option to purchase the Gresham from its subsidiary and immediately completed the purchase. On 7 September 2001 Ultimate’s application for planning permission to extend the Gresham was refused by the Newcastle City Council on grounds inter alia of harm to local residents by reason of increased activity, noise and disturbance, and increased vehicular and pedestrian activities. In January 2002 Ultimate withdrew its application for a justices’ on-licence. On 20 March 2002 a compulsory purchase order for the area in which Mim’s Bar was situated was approved; and on 31 July 2002 Mim’s Bar closed for business, Ultimate issuing a certificate of discontinuance putting the licence into suspense under Section 141 of the 1964 Act. On 1 August 2002 the Newcastle City Council made the compulsory purchase order; and the premises were subsequently sold to the council on 31 November 2002. On 8 October 2002 there was a voluntary surrender of the existing restaurant licence at the Gresham, and in the following week Ultimate began to undertake works of refurbishment at the Gresham. On 6 November 2002 Ultimate applied for a special removal of the Mim’s licence to the Gresham. According to Robert Senior, the Managing Director of Ultimate, the police reaction to the application for a special removal was to indicate to Ultimate that if an application for a full on-licence with conditions was made, it would be viewed favourably and in the hope that it would be possible to arrive at a compromise with regard to such conditions. Ultimate accordingly made a further application for a full on-licence. The deposited plan showed that over half the floor space of the premises would be dedicated to new “public house use” and that the communal “residents only” areas of the hotel would be lost. There was again strong objection to the grant of such a licence. It did not prove possible for Ultimate and the police to arrive at a compromise as to the conditions to be attached to the licence; and the application was withdrawn by a letter dated 5 December 2002. On 23 January 2003 Ultimate’s application for a special removal was considered by the Licensing Justices, but was refused on the grounds of a structural deficiency, namely that the premises were insufficiently sound proofed. In early February 2003 Ultimate lodged an appeal to the Crown Court; but subsequently withdrew the appeal having decided to install further sound proofing at the premises and to make a further application for the special removal of the Mim’s licence. 17. The second application for the special removal of the Mim’s licence was lodged on 12 February 2003 and first came before the court on 11 March 2003. On 11 March 2003 the Clerk to the Licensing Justices, Mr Legard, in the knowledge that there would be objection to the application, made arrangements for a notice to be fixed to the door of the court in the following terms - “Re: The Gresham Hotel Application for a Special Removal This application will be adjourned to a new hearing date, which has yet to be fixed. If you intend to attend at the next hearing, please leave your name and address with the usher. You will be advised of the new date and venue in due course. It is hoped to finalise the matter before Easter. Thank you for attending today. Dated; 11 March 2003. A J Legard Licensing Clerk.” 18. 19. 20. The evidence before me shows that a large number of potential objectors took advantage of the opportunity to write their names on the list provided for that purpose. Notwithstanding the unequivocal statement that the hearing was to be adjourned, the Licensing Justices did in fact begin to hear the application. M/s Lucy Winskell, a solicitor who is now instructed on behalf of the Claimants, was present in court, and says in her witness statement dated 14 May 2003 that the bench was given advice by their clerk, Mr Legard, as to whether account should be taken of planning issues with regard to the Gresham, and, without hearing from those who objected to the transfer and in their absence, directed that “planning issues would not be an issue at the next meeting”. The court also went on to hear evidence, albeit of a formal nature as to the serving of notices. It is not clear from the evidence before me whether the Justices were themselves aware of the content of the notice that had been posted on the door of the court. But in the light of the unequivocal statement in the notice that the application was to be adjourned, it was wholly improper for any part of the application to have been heard. It is highly regrettable that the Clerk to the Justices saw fit to permit the application to proceed having posted such a notice. On 7 April 2003 and having heard submissions on behalf of the Claimants and Rindberg, the Licensing Justices ruled on three preliminary issues. First it was submitted on behalf of the Claimants that the course of action adopted by Ultimate in applying for a special removal of the Mims Bar on-licence, amounted in the circumstances to an abuse of process (the abuse of process issue). Secondly it was submitted that the special removal provisions in sections 12 and 15 of the Act were incompatible with Article 8 of the ECHR alternatively that section 12 should be ‘written down’ so as to comply with Article 8 by the addition of the phrase ‘by reason of their location’ to section 12(4)(b) (the ECHR issues). Thirdly it was submitted that in any event the proceedings ought to be adjourned until the position with regard to planning consent for the proposed user of the Gresham was resolved (the planning consent issue). The Justices rejected each of the submission; and it is those rulings that are the subject of this application 21. 22. 23. Having been informed that the Claimants proposed to seek permission judicially to review their rulings, the Justices adjourned Ultimate’s application for a special removal “to be reinstated and concluded at the earliest date possible”. A further argument is advanced on behalf of the Interested Parties, Rindberg and Peel, namely that a generous construction should be given to sections 12 and 15 so as to allow consideration of the police, Council and residents’ objections to the special removal. It is submitted that the term ‘premises’ in section 12 (4) (b) of the Act extends to the whole of the site within which the Gresham is located (the construction issue). The Statutory Framework The relevant statutory provisions are contained in Sections 12 and 15 of the Licensing Act 1964. “12 Restricted power of licensing justices to refuse renewal or transfer of old on-Licences. (1) In this Act- “Old on-Licence” means a Justices’ on-licence, other than one for the sale of wine alone…granted by way of renewal from time to time of a licence in force on 15th August 1904, or of a licence that before that day had been provisionally granted and confirmed under section 22 of the Licensing Act 1974 where the grant and confirmation have been subsequently declared final, except that it does not include a licence under section 37 of this Act or granted by way of renewal from time to time of a licence so varied … “old beerhouse licence” means an old on-licence for the sale of beer or cider… no account being taken of any transfer nor, except for the purpose of determining whether a licence is an old beerhouse licence, of any removal. (2) Subject to any disqualification of the applicant or of the premises to which the application relates, licensing justices shall not refuse an application for the renewal of an old on-licence except on one or more of the following grounds, that is to say - (a) in the case of an old beerhouse… (b) in the case of any other old on-licence, those specified in subsection (4) of this section; (4) The renewal of an old on-licence other than an old beerhouse licence may be refused on the grounds- (a) that the applicant is not is not a fit and proper person to hold the licence or; or (b) that the licenced premises have been ill-conducted or are structurally deficient of structurally unsuitable. and for the purposes of paragraph (b) of this subsection premises shall be deemed to have been ill-conducted if, among other things, the holder of the licence has persistently and unreasonably refused to supply suitable refreshment, other than intoxicating liquor, at a reasonable price, or has failed to fulfil any reasonable undertaking given to the justices on the grant of the licence. 15 Special removals of old on-licences (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 or are about to be pulled down or occupied under any Act for the improvement of highways, or any other public purpose; or… the provisions of section 12 of this Act shall apply as they apply to a renewal, subject to the restrictions on removals imposed by Parts VI and VII of this Act and subject to subsections (3) and (4) of this section. (2) A removal to which those provisions apply as aforesaid is in this Act referred to as a special removal. (3) In the application of those provisions to the special removal of a licence section 12 of this Act shall have effect as if the words ‘that the premises to be licensed’ were inserted in subsection (4)(b) before the words ‘are structurally deficient or structurally unsuitable’. 24. Thus the only grounds upon which the special removal of an old on-licence, as defined in the Act, may be refused, is that the applicant is not a fit and proper person to hold the licence, or that the licensed premises have been ill conducted or are structurally deficient or structurally unsuitable. It is to be noted that the special removal provisions are abolished in the Licensing Act 2003 with effect from January 2005. 25. The abuse of process issue The Claimants contend that Ultimate deliberately put itself in a position in which it could take advantage of the special removal provisions of the Act in order to circumvent objections to the grant of a licence for the Gresham, and that the application was therefore capable of amounting to an abuse of process. It is submitted that the issue having been raised, the Licensing Justices ought to have heard evidence so as to enable them to resolve the issue. The Justices in fact ruled that – “..we do not consider that the course of action can amount to an abuse of process of this court.” 26. The Claimants contend that the Justices erred in law, and seek a declaration that to pursue an application for the special removal of an old on-licence in order deliberately to shut out known objection from police, local authority and residents, is capable in law of amounting to an abuse of the process of the court. 27. 28. Accordingly the issue is whether it would have been open to the Justices to find an abuse of process on the facts upon which the Claimants sought to rely. The Claimants’ argument is based upon the proposition that it is an abuse to use legal process, albeit in its proper form, in order to accomplish a collateral purpose. That is well established. As Lord Evershed said in In re Marjory [1955] Ch 600 at - “…court proceedings may not be used or threatened for the purpose of obtaining for the person so using for threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.” 29. The relevant principles were considered by the Court of Appeal in Goldsmith v Sperrings [1977] 1 WLR 478. Counsel for the Claimants drew my attention to the following passage from the judgment of Lord Denning MR – “When [the process of the court] is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, it they can, before any harm is done. It they cannot stop it in time, and harm is done, they will give damages against the wrongdoer…Sometimes abuse can be shown by the very steps being taken in the courts…At other times the abuse can only be shown by extrinsic evidence that the legal process is being used for and improper purpose. On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used.” But as Scarman LJ said at 498 – “In the instant case we are being asked to pass judgment on the respondent’s purpose upon a preliminary application, the effect of which, if successful, will prevent him bringing to trial actions in each of which (it was admitted in argument) he is pleading a cause of action recognised by the law. It is right, therefore, that to obtain before trial the summary arrest of a plaintiff’s proceedings as an abuse of the process of the court, the task of satisfying the court that a stay should be imposed is, and should be seen to be, a heavy one: see Shackleton v Swift [1913] 2 KB 302, 311-12. Unless the court is satisfied, a stay is a denial of justice by the court – a situation totally intolerable. In the instant proceedings the defendants have to show that the plaintiff has an ulterior motive, seeks a collateral advantage for himself beyond what the law offers, is reaching out “to effect an object not within the scope of the process” Grainger v Hill 918380 4 Bing (NC) 212, 221 per Tindall CJ. In a phrase, the plaintiff’s purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought, see In re Marjory…” Similarly Bridge LJ said at 503 – “In my judgment one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all., that is an abuse of process. There two cases are plain; but there is, I think, a difficult area in between. What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown alto to have an ulterior purpose in view as a desired byproduct of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it. But on the view I take of the facts in this case the question does not arise and it is neither necessary nor desirable to try to lay down a precise criterion in the abstract.” 30. 31. The Claimants submit that it would be open to the Justices to find that the application for a special removal amounted to an abuse of process if satisfied on the evidence that the licensed premises that became Mims Bar were acquired in the knowledge that they had the benefit of an old on-licence within the meaning of the Act, and that the area in which they were located was likely to be subject to a compulsory purchase order, and with a view to the special removal of the licence should it be necessary to circumvent opposition to the grant of a full on-licence for the Gresham. For the purposes of this application I assume that such findings would have been open to the Justices had the relevant evidence been called. On that premise was it open to the Justices to hold that Ultimate made its application for a collateral purpose? In my judgment it was not. Ultimate were entitled to take full advantage of the existing legislation by adopting the course that gave the best chance of success. Their application was not made for a collateral purpose. It was made to obtain a licence to which objection could not be made, ie to obtain the licence to which they are entitled if they are able to bring themselves within sections 12 and 15. The Claimants’ sense of frustration at being unable to air their opposition to the licence is understandable, but is the result of the advantageous position that Ultimate enjoy by virtue of the current statutory provisions. In my judgment it cannot be argued that Ultimate’s application amounted to an abuse of process. 32. The ECHR Issues The second preliminary issue raised before the Justices was whether the special removal procedure under section 12 and 15 of the Act is compatible with the Human Rights Act 1998 (HRA). The Justices ruled against the Claimants holding that – “In our view the Licensing Act 1964 is compatible with the Human Rights Act in view of the remedies available to aggrieved persons. This includes sections 12 and 15 of the Act. In our view Article 8 [of the European Convention] is not engaged.” 33. In their Amended Detailed Statement of Grounds the Claimants challenge the ruling on the basis that “The Justices wrongly directed themselves in law in relation to ss 12 and 15, the Licensing Act 1964 and the Human Rights Act 1998 (Article 1, Protocol 1, and Article 8)”. But their argument, as developed in the written and oral submission made on their behalf is that Article 6 is engaged in that in the circumstances of this case, the determination of Ultimate’s application for a special removal of the old Mims licence to the Gresham will amount to a determination of the Claimants’ rights under Article 8 and Article 1 of Protocol 1. 34. Article 6, 8 and Article 1 of Protocol 1 Article 6, “Right to a fair trial” states – “1. In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by and independent and impartial tribunal established by law.” The material parts of Article 8 state - “1. Everyone has the right to respect for his private and family life, his home… 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of …public safety or the economic well being of the country…or for the protection of the rights and freedoms of others.” Article 1 of Protocol 1 states – “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”. 35. The Claimants submit that the hearing of the application for a special removal will result in a determination that directly affects their rights under Article 8 and Article 1 of Protocol 1 to the use and enjoyment of their property. It is submitted on behalf of Ultimate that Article 6 is not engaged for two reasons; first that on the facts the grant of a licence to them could not amount to an infringement of the Claimants’ rights under Article 8 and Article 1 of Protocol 1, and secondly that in any event the grant of a licence is not a determination of the Claimants’ rights such as to engage Article 6. 36. Accordingly the issues that arise in relation to the Claimants’ contention that the Justices erred in law are – 1. whether Article 8 and Article 1 of Protocol 1 are engaged, ie whether the Claimants’ rights under those articles are capable of being infringed by the grant of a special removal of the Mims licence to the Gresham, 2. if so whether the determination of Ultimate’s application for a special removal is a determination of the Claimants’ rights such as to engage Article 6. If the answer to those questions is in the affirmative then a further issue arises, namely 3. whether the special removal procedure under sections 12 and 15 of the Act is compatible with the ECHR. 37. Issue 1 It is accepted on behalf of the Claimants that the grant of a special removal will not of itself amount to a breach of the Claimants’ convention rights. Their case is that infringement of their rights is the likely consequence of the grant of the special removal. In essence they contend that the problems of noise, and drunken and loutish behaviour already experienced in Osbourne Road as a result of the proliferation of licensed premises and the manner in which their clientele behave particularly after leaving the licensed premises, are likely to increase, and will spread to their immediate vicinity. As to the latter point the evidence from the Claimants is to the effect that they are already subjected to such behaviour in their immediate locality. Their fear is that it is likely to increase. 38. Ultimate contend that such an increase is speculative, and that they seek only a share of the existing customer base. But for present purposes the question is whether the increase that the Claimants say is likely, could amount to an infringement of their convention rights. In this context my attention was drawn to Asselbourg v Luxembourg, Application 29121/95, in which the applicants complained that the grant of licences for a steelworks would result in pollution, release of toxic gases and noise, and that the grant of the licences would infringe their article 8 rights. The court rejected the application on the following basis – “From the terms ‘victim’ and ‘violation’ in Article 34 of the Convention, like the underlying philosophy of the obligation to exhaust all domestic remedies imposed by Article 35, it can be deduced that, in the system for the protection of human rights as envisaged by the , framers of the Convention, exercise of the right of individual petition cannot have the aim of preventing a violation of the Convention. It is only in wholly exceptional circumstances that the risk of future violation may nevertheless confer the status of ‘victim’ on an individual applicant, and only then if he or she produces reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally: mere suspicions or conjectures are not enough in that respect.” 39. The decision was applied by Sullivan J in R (Vetterlein) v Hampshire County Council [2001] EWHC Admin 560 in which the claimants challenged the grant of planning permission for a waste disposal site on the grounds that it violated their article 8 rights. Sullivan J posed the question of whether it could be said that there was reasonable and convincing evidence that the claimants quality of life would be so directly effected by the incinerator proposal as to engage article 8, and continued – “60. …The answer to that question has to be no, even if one strictly applies the WHO guideline, ignoring the fact that it is only a guideline and not a mandatory requirement, and that a breach of the guideline does not automatically mean that there is serious pollution, much less that there is any significant danger to health. 61. The claimant’s is no more than a generalised concern as to the effects of the incinerator in terms of increased nitrogen dioxide emissions. Such generalised environmental concerns do not engage article 8, which is concerned with an individual’s right to enjoy life in his own home.” 40. I do not accept that the Claimants’ case is based on mere suspicion of conjecture. It is reasonable to infer from the evidence as to the behaviour of those resorting to licensed premises in the Osbourne Road, that the grant of a full on-licence to the Gresham will result in some increase of such unacceptable behaviour both in and in the immediate vicinity of the Claimants’ properties; hence the strong objection to the applications for a licence from the police. Secondly the Claimants plainly do have a generalised concern as to the loutish and drunken behaviour in and about Osbourne Road. But their concern goes beyond that. Their evidence demonstrates the direct effect of such behaviour on their enjoyment of their own properties. 41. In those circumstances I am satisfied that on the evidence advanced by the Claimants, the special removal of the Mims licence to the Gresham is capable of resulting in an infringement of the Claimants’ convention rights. 42. Issue 2 The second issue is whether the determination of Ultimate’s application for a special removal is a determination of the Claimants rights such as to engage Article 6. 43. It is submitted on behalf of the Claimants that if the grant of the special removal could result in infringement of their convention rights, then the decision as to whether or not to grant it must amount to a determination of the their rights given the jurisprudence of the European Court as to the scope of article 6. In this context Mr Gouriet inevitably relied upon the analysis of the scope of article 6 in Regina (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, and also referred to Secretary of State for Health v Personal Representatives of Christopher Benson Neutral Citation No [2002] EWCA Civ 1812, in which Lord Justice Laws provided a convenient summary of the central passage of Lord Hoffman’s speech in Alconbury. Those authorities demonstrate clearly that the ‘determination of civil rights’ in article 6 extends to decisions that affect such rights. 44. I therefore consider that the determination Ultimate’s application for a special removal does engage Article 6. 45. Issue 3 The issue then arises as to whether the special removal provisions of sections 12 and 15 of the Act are compatible with the ECHR. The Claimants submit that on a narrow construction they are not compatible with Article 6 as there is no opportunity within the special removal procedure to object on the grounds that the grant of the special removal would affect their convention rights. 46. It was in this context that the Claimants sought to persuade the Justices to ‘write down’ the statutory provisions by adding the phrase “by reason of their locality” to section 12 (4)(b). The Justices rejected the argument holding that – “We do not think this is appropriate as it would require a distortion of the word ‘structural’ as used in the Act” In my judgment they were right to do so. It is simply not possible to interpret sections 12 and 15 so as to comply with Article 6. The question is therefore whether the interference with the Claimants’ rights under Article 6 is proportionate. On this issue the Justices made the following finding, albeit not expressly in terms of proportionality – “In our view the Licensing Act 1964 is compatible with the Human Rights Act in view of the remedies available to aggrieved persons.” The Justices were right to focus their attention on the other means by which the Claimants’ rights under Article 8 and Article 1 of Protocol 1 can be protected. The state, as represented by the police and the local authority are under a positive duty to take reasonable and appropriate measures to protect the Claimants’ convention rights, see Hatton v United Kingdom (2002) 34 EHRR 1. If the premises do create a nuisance or lead to disorder, there are a number of steps that can be taken namely – 1. a closure order under sections 170A-K of the Act, at the instigation of the police, 2. the revocation of the licence by the Justices under section 20A of the Act on the application of the police, the Claimants, the local authority, or of their own motion, 3. the exercise by the local authority of its statutory powers under the Environmental Protection Act 1990. It would of course also be open to the Claimants to take proceedings for nuisance, seeking injunctive relief if appropriate. In incorporating sections 12 and 15 in the 1964 Act, Parliament clearly intended to limit the circumstances in which licensing justices could refuse to transfer an old on-licence from one premises to another. That was a perfectly legitimate objective. Such a transfer does not of itself infringe convention rights. In the light of the protection of convention rights that are otherwise available, the special removal provisions are proportionate to the end that Parliament sought to achieve, and are not therefore incompatible with the ECHR. Accordingly the Justices did not err in their conclusion that sections 12 and 15 of the Act are compatible with the HRA. It follows that the Claimants fail on the ECHR issue. The Planning Consent Issue 47. 48. 49. 50. 51. The Claimants sought an adjournment of Ultimate’s application on the basis that the position with regard to planning consent for the proposed user of the premises is unresolved. The background against which the Claimants made their application for an adjournment is that after the refusal of Ultimate’s application for planning permission to extend the Gresham, they revised their proposal for the premises and say that they have been advised that their current proposals are within the existing planning permission. They do not therefore propose to apply for a change of use. It appears that the local authority take a different view. But there is at present no live application before the local authority. 52. The Justices set out their reasons for refusing an adjournment at some length – “On the question of planning permission; Our starting point is of course the Good Practice Guide, as reflected in our own policy, that planning matters ought to be left to the planning authorities – the city council. In practice an applicant has to make a number of applications in order to operate licensed premises, for the sale of intoxicants or for any other licensed activity. In particular he has to apply for planning permission and for the licence. WE leave the question of which should be applied for first to the applicant. It follows that whether planning permission is not applied for, not granted or actually granted, does not impact upon the decision whether a licence should be granted for the sale of intoxicants. Planning permission is itself a form of licence to operated particular premises for a particular purpose. It may contain restrictions and requirements it does not in our view directly affect “structure”. So far as the Gresham Hotel is concerned, it operated as a restaurant and residential establishment for a number of years, as premises of public resort, with the benefit of a justices’ on licence, albeit restricted by Part IV conditions. The class of permission was for A3 use which includes, at least for the present time, for our purposes, bars and hotels etc. The dispute, if there is one, is as to the use of the premises applied for – a full on-licence without restrictions. We do not know whether the dispute still exists, the nature of the application which was refused, and whether a further application is to be, or has been, lodged. Planning matters are not within our jurisdiction and are left out of consideration, for the reasons indicated above. The issue in this case, if there is one, is not a simple black and white issue but we are powerless to decide whether the premises could or could not be used, without breaking planning regulations. In this case we will not take planning matters into account.” 53. The policy to which the Justices made reference is summarised in letter from the Clerk to the Justices dated 13 December 2002 giving notice of the adjournment of the hearing of the first application for a special removal. A letter enclosed “a summary of the position regarding the application for Special Removals” sent “with a view of avoiding a waste of everyone’s time”. Paragraph 5 of the summary said – “One argument against the grant of a Special Removal which has been raised by a number of people is that the Gresham Hotel does not have planning permission for the proposed use or class of use. In this regard the licensing justices have never required an applicant for a new licence, or a removal of an existing licence, to have the necessary permission prior to consideration of an application. It is left to the applicant. If he fails to obtain the relevant permission, he will not be able to use the premises for the intended use. Although Special Removals are somewhat unusual, they are not considered so unusual by the licensing justices as to form an exception to the general principal (sic). Also, it is not considered that the presence or absence of the relevant permission affects “structural” matters as mentioned above. The premises will be structurally suitable and convenient, or not, as the case may be. It is a question of fact, divorced from the question of the relevant planning permission. It may be observed that the applicant is taking a considered risk in that if the removal is granted and planning permission is (again) refused, the premises will not be able to operate as anticipated. That is a matter beyond the jurisdiction of the licensing justices and is, hence, left out of their considerations.” 54. It is interesting to note that in the concluding sub-paragraphs of paragraph 5, the Clerk to the Justices went on to say that special removals were about to be consigned to history, and that “they are an anachronism and equally disliked by licensing justices, due to the general lack of control associated with them”. 55. Mr Gouriet, who appeared for the Claimants, acknowledged that the Justices were entitled to adopt a general policy, and rightly did not seek to challenge its contents. But he submitted that the Justices had approached the application for an adjournment with closed minds and applied the policy inflexibly. He placed considerable reliance upon the direction given by the Justices at the part hearing on 11 March, the hearing that ought not to have taken place given the notice posted on the door of the court, that “planning issues would not be an issue at the next meeting”, see paragraph above. 56. As to the approach that ought to have been taken to the application, Mr Gouriet relied upon the judgment of Simon Brown LJ in R v Kingston upon Thames Justices ex parte Martin [1994] Imm AR 172, in which he listed the considerations that should be taken into account when a judicial body is asked to adjourn proceedings, namely – “Whether or not an adjournment should be granted in any particular case, more particularly whether or not fairness so clearly demands and adjourment that a refusal will found a successful judicial review application, must inevitably depend on a variety of considerations. These are likely to include the importance of the proceedings and their likely adverse consequences to the party seeking the adjournment; the risk of his being prejudiced in the conduct of the proceedings if the application is refused, the risk of prejudice or other disadvantage to the other party if the adjournment is granted; the convenience of the court and the interests of justice generally in the efficient dispatch of court business; the desirability of not delaying future litigants by adjourning early and thus leaving the court empty; and the extent to which the applicant himself has been responsible for creating the difficulty which his said to require the adjournment in the first place; the extent to which, in short he has brought the problem upon himself.” 57. Mr Gouriet submitted that it was open to the Justices to have adjourned the hearing; and that they were “Wednesbury” unreasonable in their inflexible adherence to their policy. The Justices were obliged to consider the application of their general policy to the facts of the case; and the first question is therefore whether they did in fact adhere inflexibly to their general policy without taking account of the relevant circumstances. The declaration made on the 11 March, as to which see paragraph 18 above, certainly raises the question of whether they approached the application on 7 April with closed minds. But in my judgment it is clear from the reasons given for refusing the adjournment on 7 April, that the Justices did take account of the facts specific to the application. They took their general policy, which was based on the Good Practice Guide as their starting point. But they then considered the position with regard to the existing planning permission and in particular that it was unclear whether or not there was still a dispute between Ultimate and the local planning authority. They took account of the fact that they were powerless to decide whether the premises could or could not be used without breach of planning regulations. Thus the effect of their decision was to leave it to Ultimate to take the risk of operating the licence, if it were to be granted, in breach of planning law. 58. 59. 60. 61. 62. Thus I reject the argument that the Justices were inflexible in their adherence to their general policy. In my judgment their decision to reject the application for an adjournment cannot be said to have been “Wednesbury” unreasonable. It follows that this limb of the claim must also fail. The Construction Issue It is submitted on behalf of Rindberg and Peel, the Interested Parties, that sections 12 (4) and 15 should be given a generous construction so as to allow consideration of the police, Council and residents’ objections to the special removal. They contend that the term ‘premises’ should be construed as extending to the entire site within which the Gresham is located, ie to the outside areas in particular to the front and rear of the building. The Justices did not make an express finding on this issue, although it appears that it was raised before them. The issue is therefore whether the sections are capable of bearing the construction for which Mr Rankin, who appeared for Rindberg and Peel, contends. Rindberg and Peel submit that although “premises prima facie means buildings” (per Henry J in R v Portsmounth Licensing Justices ex parte Walker [1993] COD 157), the word can be used more flexibly. Mr Rankin relied on the following passage from the judgment of the Court of Appeal in Spring House (Freehold) Ltd v Mount Cook Land Ltd Neutral Citation [2001] EWCA Civ 1833 – “28. Whilst not referring to Alice in Wonderland, both counsel seem to be agreed that in the same lease, indeed in the same clause of the lease, the word ‘premises’ may bear one meaning at one time and another at another time. In our judgment it is clear that ‘premises’ is a chameleon-like word which takes its meaning from its context. Since it can mean almost anything the task of the court is to give the word the meaning which it most naturally bears in its context and as reasonably understood by the commercial men who entered into the agreement.” 63. He also referred me to the decision of the Court of Appeal in Customs and Excise v Griffiths [1924] 1 KB 735, in which Scrutton LJ considered the definition of ‘premises’ in the context of licensed premises. “I do not find anything in the Licensing Act which limits the word ‘premises’ to an entire building. In my opinion any part of a building which is defined by metes and bounds is ‘premises’ in respect of which a licence can be granted, provided it is in the justices’ opinion structurally adapted for the sale of liquor.” at p 746. But the issue in Griffiths was whether a licence could be granted in relation to a defined space within Harrods. I do not find it to be of assistance in relation to the issue raised on behalf of Rindberg and Peel. 64. Mr Rankin also sought to pray in aid the interpretative obligation under section 3 of the Human Rights Act 1998; and in that context directed by attention to two passages from the speech of Lord Steyn in R v A [2001] 2 All ER 1. “44…the interpretative obligation under s 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings.” “In my view s 3 of the 1998 Act requires the Court to subordinate the niceties of the language of se 41(3)(c) of the 1999 Act, and in particular the touchstone of coincidence, to broader considerations of reference judged by logical and commonsense criteria of time and circumstance.” 65. 66. But in my judgment the argument fails for two reasons. First the application for the special removal does not include any of the outside areas. It is limited to the specified areas within the building. It is for Ultimate to decide what areas they wish to include in the licensed premises. If the Justices had applied the construction for which Rindberg and Peel contend, they would not have been adjudicating on the application made by Ultimate. Secondly and in any event I am satisfied that in the 1964 Act ‘premises’ means building, and cannot sensibly bear the construction for which Rindberg and Peel contend. Under section 12 (4) a special removal may be refused on the basis that the premises to be licensed “are structurally deficient or structurally unsuitable”. It is the structure of the premises that must be deficient or unsuitable. Thus in this context ‘premise’ cannot in my judgment refer to open areas outside the building. I derive support for that conclusion from the judgment of the Divisional Court in Regina v Hastings Licensing Justices ex parte John Lovibond & Sons Ltd [1968] 1 WLR 735 in which the court held, per Lord Parker CJ, that “…it is quite clear that where the word ‘premises’ is used in this Act (the Licensing Act 1964), though it is not clearly defined, it clearly refers to ‘buildings’”. 67. It follows that this application fails. - - - - - - - - - - - - - MR JUSTICE OWEN: Mr Watson, Mr Knowles, there will be judgment in the terms that I have handed down. I apologise for the delay in getting the final version printed up. It does not depart from the version that you have had the opportunity to see, save for some minor textual alterations. MR KNOWLES: Thank you, my Lord. My Lord, I do not know if it has reached you, but I have prepared a draft order. Could I hand it up, please? (Handed) My learned friend has a copy. MR WATSON: Perhaps before we consider the terms of the order I could make an application for permission to appeal on the basis that some of these orders may perhaps change if permission were granted. MR JUSTICE OWEN: Yes. MR WATSON: My Lord, the application is based on what is referred to as issue 3 in your Lordship's judgment. If I could take to you that. It is at paragraph 45 of the draft version. I assume that has not changed. It seems it is the same. I am working from the draft. If there are any changes that I am unaware of, I apologise. MR JUSTICE OWEN: There are no changes of significance, Mr Watson. MR WATSON: My Lord, the issue that I would seek to address you on is a problem that we see which has arisen in relation to issue 3. I shall approach it in three ways with the one central issue in the middle. You have made a finding my Lord in paragraph 46 that it is simply not possible to interpret sections 12 and 15 so as to comply with Article 6. MR JUSTICE OWEN: Yes. MR WATSON: We do not disagree with that finding. However, my Lord, you then continue to find that there is no breach of Article 6 because of different proceedings that can be brought. As I understand it, they are listed under paragraph 48 1, 2 and 3 closure order, relocation and powers under Environmental Protection. The first thing to say in relation to those three possibilities is, of course, only number 2 actually applies to the claimants because it is only a relocation of a licence that they themselves can seek. Therefore, in my submission, what happens between paragraphs 45 and 48 is that there is a subtle jumping of tracks from consideration of Article 6 as at paragraphs 45 and 46, and then a move over to considerations of Article 8 and Article 1 protocol. If I could characterise this section of the judgment as follows: it seems to be suggesting that there is a breach of Article 6 in this set of proceedings. However, the claimant's Article 8 and Article 1 protocol rights are protected by an entirely different set of proceedings that actually go to a different issue, particularly as relocation proceedings would be ex post facto. Therefore, in this judgment the suggestion, in my submission, is that there is a breach of Article 6, but a different set of proceedings are tehre to protect the rights of Article 8 and Article 1 protocol. The actual issue of the Article 6 right is not addressed. I would submit that it is that right which is left hanging. I do not think this is going too far to suggest that it is akin to say in criminal proceedings that the trial should not be fair, and therefore Article 6 is a prima facie breach of Article 6. However, if after an unfair trial you are sent to prison, you can apply for a different set of proceedings, such as habeas corpus to try and secure your release. MR JUSTICE OWEN: The two are directly linked in this case. The whole question of Article 6 only arises in relation to any application of infringement of Article 8 and protocol Article 1. Indeed, taking it in chronological order, the Article 6 right emerges in paragraph 44, your Lordship finds that Article 6 is engaged. Having found that there is an engagement, those proceedings themselves must be fair. There can be a limitation on those proceedings if other proceedings that determine the same right can be brought. However, there is a clear finding that there is no such set of proceedings within sections 12 and 15, but a different sets of proceedings can be brought. Rather than the criminal analogy, perhaps the analogy of the circumstances in Sander v Sweden they are much more closely aligned to the present facts, as I am sure you remember from the argument that took place at the hearing. The Swedish authorities granted a licence. A third party claimed an interest. It was found that they did have an interest. It would not have been sufficient for the Swedish authorities to turn around and say "You can bring a claim for nuisance if this all goes wrong", which in my submission is what is found with respect in paragraphs 45 to 48 of this judgment. That is one approach. The second approach would be to look simply at the terms of the Human Rights Act, in particular section 6. If the Licensing Committee are to act on this judgment, according to this judgment when they make findings or when they come to a determination of sections 12 and 15, they will be acting unlawfully because those provisions in sections 12 and 15 do not comply with Article 6 We have that as a finding here. They will, therefore, be acting incompatibly with the Convention when they act within those provisions and, therefore, their acts will be unlawful. The final way of approaching this is to step back perhaps and to see the structure of these few paragraphs. I respectfully submit that what has occurred here is that the questions of pursuing a legitimate aim and proportionality, which I see your Lordship comes to under paragraphs 47 and 48, should be considerations, in my submission, within the consideration of Article 6. However, there is a finding here of incompatibility with Article 6. Then outside of Article 6 considerations of the Article 1 protocol have to be considered. Having found incompatibility, the judgment then goes on to suggest however that incompatibility is justified because it pursues a legitimate aim and is proportionate. In my submission, the considerations of legitimate aim and proportionality come within the finding of Article 6, or at least they should do. Those considerations should be aimed at sections 12 and 15 to see if they themselves are proportionate to pursue a legitimate aim. In my submission, it is not simply a question of language; the problem underlying it is the fact that sections 12 and 15 are determinative of this particular right which is the right to make representations as to the special removal of an old licence. It is that particular right that is engaged, according to your Lordship's judgment. It is that particular right to a fair hearing that is being breached. MR JUSTICE OWEN: I hear how you put it, Mr Watson. Mr Knowles? MR KNOWLES: My Lord, Mr Watson has made a valiant attempt. We say what is effectively being done is seeking to re-argue that which has already been argued and determined. In our respectful submission, it should be left to the Court of Appeal to decide whether to grant permission. My Lord's judgment, if we may respectfully say so, is entirely consistent with the reasoning of cases such as the Mayor of London case. In each case Article 6 challenges and rejected in analogous situations where objectors seek to challenge environmental measures of one form or the other. We would say that if there is a point for appeal, it should be for the Court of Appeal to determine. With respect, my Lord is right for the reasons my Lord has given. MR WATSON: My Lord, I simply suggest that has not addressed the nub of this point at all. There has been no attempt to draw any analogies between cases and this particular case. If I can read just one paragraph from the judgment of Ashenden which was a -- MR JUSTICE OWEN: Mr Watson, you are going to have to make your application to the Court of Appeal. MR WATSON: I am grateful, my Lord. MR KNOWLES: My Lord, can I please go through the orders which we seek, which are set out on the draft order? MR JUSTICE OWEN: Yes. MR KNOWLES: Firstly that the application be dismissed. We seek an order for costs against the claimants and the interested parties to be subject to a detailed assessment if not agreed. Can I say it has always been made clear that Rindberg are meeting the costs. MR JUSTICE OWEN: Yes, that was clear at the hearing. MR KNOWLES: We do seek an order against the claimants and Rindberg. For example, if Rindberg were not to honour that undertaking, we have got an order for costs against the claimants. We do not anticipate having to enforce the claimants, but that is the order we do seek. We also seek a payment on account under CPR 44.38 of £50,000 on account of our costs within 14 days. The quick tot up of costs of the second defendants for the moment is some £65,000-odd. Although we seek a detailed assessment, we would ask for a payment on account, and my Lord has specific power to order that, as I have said, under CPR 44.38. Fourthly, undertakings. As my Lord will know, the proceedings below were stayed at the suit of the claimants and the interested parties. The usual undertaking in damages was given because, of course, the effect of the stay is to prevent the hearing proceeding, and hence to prevail the premises from opening, which we will argue in due course has caused a loss of profit. So far as our claim for damages pursuant to those undertakings are concerned, the order I seek is for it to be remitted to a judge for determination. That is likely to be an issue which requires evidence as to what the projected profit would have been. That is the order we seek. Finally, as my Lord will remember, the stay was imposed when permission was granted and so we seek stay of discharge. MR JUSTICE OWEN: Yes, Mr Watson? THE CLAIMANT: My Lord, if I could address you in order of the points. We do not have any dispute with the first or the second, subject of course to permission. As to the third, I am afraid that we would submit that £50,000 is not agreed at this particular point. In any event, we would seek an extension of the time from 14 days to 28 days. MR JUSTICE OWEN: Yes. MR WATSON: We would submit if it is requested that part of that were paid up front, as it were, that would be acceptable. However to seek, as I understood it, for the entire amount to be paid up front and then subject to agreement -- I may have misunderstood. I would still submit that is really at the top end. Our own assessment, and I do not have detailed instructions on this, were more in the region of £20,000. In those circumstances, I would seek for the amount to be reduced down to £20,000, subject to a detailed assessment with an extension by simply another 14 days to 28 days. With regard to the fourth matter, I entirely agree that it seems most appropriate for this to be remitted to a judge for determination. MR JUSTICE OWEN: And the fifth follows on from that. MR WATSON: Indeed. Subject, of course, to an application for permission to appeal. MR JUSTICE OWEN: Yes. Mr Knowles, is there anything you want to say? MR KNOWLES: My Lord, yes. The summary assessment that we were given by the claimants and the interested parties at the hearing for their costs on that date was £98,000. Our costs at the moment are very substantially less than that. So the figure of £50,000 we seek is payment on account. It is approximately half the costs of the other side, and we say it is a reasonable quantum to order. MR JUSTICE OWEN: Yes. Mr Knowles, you may have the orders that you seek, save in one respect. In paragraph 3 I am going to order that the claimants and interested parties pay £40,000 on account of costs within 28 days of 31 July, otherwise the order will stand as you have drafted it. MR WATSON: Can I just seek two points of clarification? One is in terms of the order I did make a submission that the stay of proceedings be discharged, subject to permission for leave to appeal. MR JUSTICE OWEN: Yes. Mr Knowles, what do you say to that? MR KNOWLES: We say it is possible to seek a stay pending an appeal, and I will take my Lord to the relevant section if need be. The usual rule is there should be no stay pending an appeal. A successful applicant at the lower court should not be deprived of his remedy, and there are various factors my Lord has to take into account. We would say because my Lord has refused permission to appeal, it follows that a stay should not be imposed. We say that if my learned friend wishes either a stay of the proceedings or permission to appeal, he has to seek both remedies from the Court of Appeal. My Lord will have it in the White Book. MR JUSTICE OWEN: I am familiar with the White Book. Mr Watson, you will have to seek a stay if and when you seek your leave to appeal. MR WATSON: I am grateful.