Practice and Procedure


PUBLISHED August 6, 2003

An application for special removal of a justices' on-licence under s.15 Licensing Act 1964 did not amount to an abuse of process. The special removal procedure was compatible with the European Convention on Human Rights.Application for judicial review of preliminary rulings made by the first defendants ('the justices') in relation to an application by the second defendant ('Ultimate') for the special removal of a justices' on-licence to the Gresham Hotel ('the Gresham') under s.15 Licensing Act 1964. The claimants were residents who lived close to the Gresham and the interested parties were companies who owned licensed premises on the same road. Earlier attempts in 2000 and 2002 to obtain a justices' on-licence for the Gresham had been withdrawn following opposition from the police, local council and local residents due to the proliferation of licensed premises in the immediate area. In November 2002, Ultimate applied for the special removal to the Gresham of an old on-licence that it held in relation to other premises ('Mim's Bar'). The initial application was unsuccessful. The claimants sought judicial review of the justices' preliminary decisions on the second application that: (i) Ultimate's application for a special removal could not amount, in the circumstances, to an abuse of process; (ii) the special removal provisions in s.12 and s.15 of the 1964 Act were not incompatible with Art.8 European Convention on Human Rights; nor should s.12 be written down so as to comply with Art.8 by the addition of the phrase "by reason of their location" to s.12(4)(b); and (iii) the proceedings should not be adjourned until the position with regard to planning consent for the proposed user of the Gresham was resolved. In addition, the interested parties submitted that a generous construction should be given to s.12 and s.15 of the 1964 Act so as to allow consideration of objections to the special removal, so that the term "premises" should be construed as extending to the entire site within which the Gresham was located, including outside areas.HELD: (1) Assuming the justices could have found that Mim's Bar was acquired with the likelihood and purpose of a special removal of the licence to the Gresham, it was not open to them to hold that Ultimate made its application for a collateral purpose. 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, but was made to obtain a licence to which objection could not be made. (2) It was reasonable to infer, from the evidence as to the behaviour of those resorting to licensed premises already in the area, that the grant of a full on-licence to the Gresham would result in some increase of such unacceptable behaviour both in, and in the immediate vicinity of, the claimants' properties, with a direct effect on their enjoyment of their own properties. The special removal of the Mim's Bar licence to the Gresham was therefore capable of breaching the claimants' rights under Art.8 and Protocol 1 Art.1 of the Convention. (3) The determination of Ultimate's application for a special removal engaged Art.6. (4) It was not possible to interpret s.12 and s.15 so as to comply with Art.6. However, in the light of the protection of the relevant Convention rights that was otherwise available, the special removal provisions were proportionate to the end that Parliament sought to achieve and were not, therefore, incompatible with the Convention. Accordingly, the justices did not err in concluding that s.12 and s.15 of the 1964 Act were compatible with the Human Rights Act 1998. (5) The justices were not inflexible in their adherence to their general policy not to adjourn until planning decisions were taken. They did take account of the facts specific to the adjournment application. 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. (6) The construction of s.12(4) and s.15 of the 1964 Act contended for by the interested parties was rejected. The application for the special removal did not include any of the areas outside the Gresham building, but was limited to the specified areas within the building. Further, in the 1964 Act, "premises" meant building, as it was referred to in the context of structural deficiency or unsuitability.Application dismissed.

[2003] EWHC 1937 (Admin)