R (on the application of Hemming (t/a Simply Pleasure Ltd) and others) v Westminster City Council

R (on the application of Hemming (t/a Simply Pleasure Ltd) and others) v Westminster City Council

The Council was entitled to include enforcement costs in licensing fees for successful applicants; only the requirement to pay such costs up front as a condition of application was unlawful under EU law. Repayments made to licence holders in respect of enforcement costs must be returned to the Council, subject to...

Source-derived case information.

Parties
Respondents: Hemming (t/a Simply Pleasure Ltd) and others; Appellant: Westminster City Council
Jurisdiction
England and Wales
Judgment Date
19 July 2017
Procedural Posture
Judicial Review / Supreme Court Appeal After Reference to the Court of Justice of the European Union
Outcome
Appeal allowed in part; matter remitted to Administrative Court for determination of reasonableness and related issues.
Legal Topics
Licensing Fees, Unjust Enrichment, Provision of Services Regulations, EU Directive 2006/123/ec, Fee Reasonableness, Enforcement Costs
Administrative Law Local Government Law European Union Law Licensing Fees Unjust Enrichment Provision of Services Regulations EU Directive 2006/123/ec Fee Reasonableness +1 more

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Summary, issues, holding and outcome

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Parties

Hemming (t/a Simply Pleasure Ltd) and others

Respondents

Westminster City Council

Appellant

Procedural Posture

Judicial Review / Supreme Court Appeal After Reference to the Court of Justice of the European Union

Legal Issues

  1. 1 Whether Westminster City Council could lawfully include enforcement costs in sex shop licensing fees after the implementation of the Provision of Services Regulations 2009 and EU Directive 2006/123/EC
  2. 2 Whether repayments made to licence holders should be returned to the Council after the Supreme Court's clarification of the law
  3. 3 Whether the Council's fee determinations for the relevant years were valid and reasonable

Ratio Decidendi

The Council was entitled to include enforcement costs in licensing fees for successful applicants; only the requirement to pay such costs up front as a condition of application was unlawful under EU law. Repayments made to licence holders in respect of enforcement costs must be returned to the Council, subject to the reasonableness of the sums, to be determined by the Administrative Court.

Court Disposition

Appeal allowed in part; matter remitted to Administrative Court for determination of reasonableness and related issues.

Orders

  • Licence holders must repay enforcement costs to the Council, subject to reasonableness as determined by the Administrative Court.
  • Issues regarding surpluses, unaccounted income, and interest to be remitted to the Administrative Court.