QUEEN'S BENCH DIVISION
B e f o r e :
|The Queen on the application of|
|4 WINS LEISURE LIMITED|
|- v -|
|(1) THE LICENSING COMMITTEE FOR BLACKPOOL COUNCIL|
|(2) BROOK LEISURE BLACKPOOL LIMITED|
|(3) WORLD WIDE CLUBS (UK)|
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
appeared on behalf of the Claimant
Mr Ben Williams (instructed by the Principal Solicitor (Licensing)
Blackpool Licensing Service FY1 5WY)
appeared on behalf of the First Defendant
Mr Stephen Walsh (instructed by Gosschalks, Hull HU1 3DZ)
appeared on behalf of the Second Defendant
Crown Copyright ©
Friday 31 August 2007
MR JUSTICE SULLIVAN:
"'Interested party' means any of the following --
(a) a person living in the vicinity of the premises,
(b) a body representing persons who live in that vicinity,
(c) a person involved in a business in that vicinity,
(d) a body representing persons involved in such businesses."
"6. Blackpool Council's Statement of Licensing Policy does not aim to set a limit on how near an individual/business should be to qualify as an interested party. Each application is dealt with on its merits. The premises operated by Worldwide Clubs UK Ltd (Sanuk) were a matter of 250 yards away. We considered that this premises was close enough to the premises subject of the application to be affected by the licensable activities. Therefore we decided that Worldwide Clubs UK Limited was an interested party and that representation was relevant.
7. When considering whether 4 Wins Leisure was an interested party, we took into account from our knowledge of Blackpool, the distance between the premises they operate (the Syndicate) and the premises subject of the application. We were of the opinion that they were some considerable distance apart and that the Syndicate would not be directly affected by activities taking place at Talbot Road. As a result we decided that 4 Wins Leisure were not an interested party in this case, therefore their representations would not be taken into account."
"The Licensing Authority recognises that the Town Centre and the Promenade are areas where the behaviour of the customers of all the premises taken together has a greater impact than normal. The Authority anticipates representations from a Responsible Authority or interested party that new licences in these locations will, having regard to the cumulative impact, prejudice the promotion of the licensing objectives".
"The licensing authority has for some years recognised that the town centre and promenade area identified in appendix A is an area where the behaviour of customers of all the premises taken together has a greater impact than normal on the crime and disorder objective. The licensing authority is now of the opinion that this area is suffering from cumulative impact, and designates it as the Town Centre Saturation Area in respect of premises licensed for the sale or supply of alcohol. In reaching this decision, the evidence summarised in appendix B was taken into account."
"5.33 It is for the licensing authority to determine in the first instance whether or not representations are relevant representations. This may involve determining whether they have, as a matter of fact, been made by an interested party and whether or not, for example, an individual making a representation resides or is involved in business 'in the vicinity' of the premises concerned. However, licensing authorities should be aware that their initial decision on this issue could be subject to legal challenge in the courts. Whether or not an individual resides 'in the vicinity of' the licensed premises is ultimately a matter of fact to be decided by the courts but initially licensing authorities must decide if the individual or body making a representation qualifies as an interested party. In making their initial decision, licensing authorities should consider, for example, whether the individual's residence or business is likely to be directly affected by disorder and disturbance occurring or potentially occurring on those premises or immediately outside the premises. Where a representation concerns 'cumulative impact', the licensing authority may be unable to consider this factor and would probably need to examine issues such as the proximity of the residence or business. In essence, it is expected that the decision will be approached with common sense and individuals living and working in the neighbourhood or area immediately surrounding the premises will be able to make representations."
"It is for the licensing authority to decide in the first instance whether or not representations are relevant. This may involve determining whether they have been made by an interested party and whether or not, for example, an individual making a representation resides or is involved in business 'in the vicinity' of the premises concerned. However, licensing authorities should be aware that their initial decision on this issue could be subject to legal challenge in the courts."
Pausing there, that challenge would be made on conventional judicial review principles and it would have to be borne in mind that whether or not a business is "in the vicinity" of an application site is very much a question of judgment on which reasonable people may differ in their views. Thus any challenge on Wednesbury grounds will be a very difficult road to pursue. The revised Guidance continues:
"9.5 In making their initial decision on the question of vicinity, licensing authorities should consider whether the individual's residence or business is likely to be directly affected by disorder and disturbance occurring or potentially occurring on those premises or immediately outside the premises. In other words, it is the impact of issues relating to the four licensing objectives that is the key consideration."
Those four objectives are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. I repeat, while the question of direct effect may be of assistance in deciding whether or not one premises is in the vicinity of another, it not the statutory test that must be applied.
"9.6 The Government recommends that, where local authorities have chosen to define vicinity as a fixed distance from a premises, they should only ever use this as a guideline and should indicate in their policy statements that they will consider representations from those who live or work outside that distance if they can demonstrate that they are (or, in the case of new premises, are likely to be), affected by disorder and disturbance occurring (or potentially occurring) on those premises.
9.7 Where a representation concerns 'cumulative impact', the licensing authority may be unable to consider this factor and would probably need to examine issues such as the proximity of the residence or business. In essence, it is expected that the decision will be approached with common sense and individuals living and working in the neighbourhood or area immediately surrounding the premises will be able to make representations."
Insofar as that advice recognises that the question whether something is in the vicinity of something else is essentially a matter of their physical or geographical relationship, then I would endorse it. Insofar as it seeks to go further and to introduce other considerations such as whether or not the premises are likely to be affected by disorder and disturbance, then again while those might or might not be helpful indications, they should not be used as a substitute for the statutory test.
MR WILLIAMS: My Lord, costs. My learned friends should both have a copy of the first defendant's costs schedule. If not, I could provide a second copy to them.
MR JUSTICE SULLIVAN: I do not know that I do. I have a copy of the claimant's costs, not the first defendant's costs, no.
MR WILLIAMS: I will hand a copy to your Lordship.
MR JUSTICE SULLIVAN: Yes.
MR WILLIAMS: My Lord, I would respectfully submit that that is a reasonable figure to put on the costs for defending this application and I would ask the court to exercise its discretion and award that in full, subject to anything my learned friend Mr Walsh says.
MR MARTIN WALSH: I certainly cannot resist the first defendant's claim for costs.
MR JUSTICE SULLIVAN: No. Neither in principle, nor in amount?
MR MARTIN WALSH: Not in principle, my Lord, no. I have not seen any costs schedule in respect of the second defendant.
MR JUSTICE SULLIVAN: I think Mr Stephen Walsh would have to persuade me that it was an exceptional case so that I should grant costs. Normally we do not grant two lots of costs in a judicial review, particularly if one party is really saying, "Here, here" to the other party. The second defendant is saying, "Here, here" to the first defendant.
MR STEPHEN WALSH: Well, my Lord, we would apply for costs. Could I deal with the principle, first of all?
MR JUSTICE SULLIVAN: Of course.
MR STEPHEN WALSH: In this particular set of circumstances, first of all the issue as to vicinity was raised by those who instruct me in the course of the proceedings in the first place.
MR JUSTICE SULLIVAN: Yes.
MR STEPHEN WALSH: The decision of course went the way in which it did and the second defendants were served with the judicial review proceedings. Now, as a second defendant in these circumstances, and particularly bearing in mind that it was the second defendant's submission before the first defendant's which gave rise to the decision, obviously it is essential for the second defendant, following service, to serve its detailed grounds and to serve its skeleton argument in accordance with the standard directions. Now, I have to say that in this particular case both the acknowledgement of service and the detailed grounds were prepared and served without sight of the first defendant's position. It may be that the second defendant served the detailed grounds, for example, well in advance. Now, there are often circumstances in cases such as these, particularly when dealing with the new licensing regime where it is essential, upon a hearing of this kind, for the parties which are directly affected to be represented. The effect upon the second defendant is that the development of their site, which was already licensed under a former regime, has been substantially delayed by very, very many, many months. They could not continue work because the certainly of the licence was not there. So the second defendants have certainly been prejudiced in terms of the development of the site. If they are to be deprived of their costs in terms of appearing and defending these proceedings, it would, in my respectful submission, be a circumstance in which, for example, if the second defendant had chosen to allow the council to plough its furrows and to represent the interests of the second defendant, the second defendant would not be in a position to raise arguments which your Lordship has in the skeleton argument in relation, for example, to cumulative impact. I know that it was not necessary to go into a vast amount of detail at the end of the day, but can I ask you to look at the second defendant's skeleton argument?
MR JUSTICE SULLIVAN: Yes.
MR STEPHEN WALSH: First, we have adopted a slightly different approach, but certainly it was part -- and a significant part -- of Mr Walsh's approach today, you will see in paragraphs 1 and 2 our position that the second defendant suggests that the claimant's approach in essentially conflating the approach to be adopted on a cumulative impact basis and the section 13 definition of "vicinity" was erroneous. That was primarily, it is fair to say, the second defendant's position. I was certainly in a position to argue and to develop the skeleton argument, lest it were necessary to argue the detail and the extent to which the cumulative impact policy, whether amended or otherwise, should affect the way in which or to what extent a licensing authority was to look at the question of "vicinity". So it was essential that the second defendants were in a position to argue their case so far as that was concerned. I need not go through the skeleton argument in detail, but your Lordship will see that each and every element of the approach which is adopted by the claimant is dealt with and a different approach is adopted -- a slightly different approach -- to the Council.
MR JUSTICE SULLIVAN: Yes.
MR STEPHEN WALSH: Now, here the complainant in this case is a commercial entity which brought this judicial review in the knowledge that, whatever the result, there would be a very substantial delay to the opening of what would be a competitive night club.
MR JUSTICE SULLIVAN: Well, I suppose you could have proceeded and simply told them, "Either you get interim relief and stop us proceeding, and give us a proper cross-undertaking in damages, otherwise we are just going ahead". That is what you would do if you got planning permission -- sometimes.
MR STEPHEN WALSH: Sometimes, but not always.
MR JUSTICE SULLIVAN: No, not always.
MR STEPHEN WALSH: That is very risky. Certainly if an operator such as Brook Leisure or indeed the claimant were to ask advice from their lawyers: "Should we build the thing for possibly £3 million or shall we wait and see?", it would be very robust advice that said: "Get on and spend your £3 million because it will be all right in the end" -- particularly on an issue such as this.
MR JUSTICE SULLIVAN: I suppose the adviser might say, "Write to the other side saying, 'One week from now we are going to start on site. If you want to take injunctive relief, tell us now, otherwise we will take delay against you'". I am not criticising any advice that was given to anyone, but if you want to stop someone in their tracks, then you might have to pay the penalty by a cross-undertaking in damages.
MR STEPHEN WALSH: Of course, my Lord that is a possibility, but I think your Lordship will understand the way in which I put it.
MR JUSTICE SULLIVAN: Of course.
MR STEPHEN WALSH: There is prejudice to the second defendant, whatever the benefit in this case to the claimant, and because these are two commercial entities, one who made the original application and the claimant at the end of the day objected to it, it would seem -- and I put it as high as this -- it would seem unjust to a second defendant who is forced into a position of coming to this court in order properly to defend its position, not to have any of its costs reimbursed, even though the arguments which it developed and advanced in these proceedings were successful. So, in my submission, it is not a case in which it would be right for the second defendant to leave it to the council and say, "Well, you do what you will do and do your best". It is a case in which the second defendant had to appear, had to acknowledge service, and, having acknowledged service, has had to comply with the standard directions in the ordinary way.
MR JUSTICE SULLIVAN: Yes. Yes, thank you. Mr Walsh, I am not persuaded that there was a sufficiently separate and distinct interest. I appreciate there is a commercial interest which is different from the council's, but this is not a case where the council was being pusillanimous about any aspect of the case. It was firing at you with all guns and there was no reason to suppose it would not fire all those guns when we got here. So I do not think there was a separate legal point really that the second defendant raised. But, on the other hand, it could be said that until they knew what the council's position was, it was perfectly reasonable for them -- and indeed essential under the rules in case they wanted to participate -- to put in an acknowledgement of service and summary grounds. Then, having seen that the council was effectively rowing along in the same way, then would be the time to choose not to appear at the hearing. What do you say about their costs of the acknowledgement of service, and, I suppose, detailed grounds once permission was granted? Is that right?
MR STEPHEN WALSH: Yes, indeed, detailed grounds. But we also served a skeleton argument. There is one difficulty. There were discussions between the parties last week, and, as I understand it, discussions between the counsel and the claimant, and the result of that was that one did not know whether it was necessary to put in a skeleton at all and finally last Friday it was confirmed that the matter was to proceed. So I had to put in a skeleton as well without having any sight of the other side's skeleton argument.
MR MARTIN WALSH: My Lord, the question of delay and prejudice to the second defendant is a tad mischievous because until very, very recently they did not even have planning consent to proceed.
MR JUSTICE SULLIVAN: I do not think that, I am afraid, is in any event a good ground. I appreciate it is very important --
MR MARTIN WALSH: This was simply a challenge against the decision of the local authority, to which the local authority immediately responded once we initiated these judicial review proceedings and a review of the skeleton argument, and indeed the responses of both the first defendant and the second defendant were realised upon consideration once one realised that the issues raised were absolutely identical. So this was a simple challenge against the decision of the first defendant, which the first defendant resisted, and I cannot resist their costs. But I do resist the costs of the second defendant. They are identical issues.
MR JUSTICE SULLIVAN: I just simply want to understand the timing of the thing. The detailed grounds for contesting the claim are put in at 293. I just want to understand the dates.
MR WILLIAMS: My Lord, if it assists, that is the chronology I did not seek to rely on. There are the detailed first defendant's submissions. It is on page 2, supplying the detailed grounds. But the difficulty I had in preparing that is that the second defendant's detailed grounds and indeed skeleton argument did not come with a date on them and so I was not able to include them in the chronology.
MR JUSTICE SULLIVAN: Yes, I see. Mr Stephen Walsh (to identify which Mr Walsh), we have got detailed grounds of resistance from the first defendant, 20 July 2007. We have got the acknowledge of service and grounds by March. So we knew in March 2007 what the first defendant was going to say. What date is your acknowledgement of service and detailed grounds -- or summary grounds?
MR STEPHEN WALSH: I am just turning to them. It would be at a similar point in time. It is behind divider 17. It was 23 July.
MR JUSTICE SULLIVAN: 23 July was what?
MR STEPHEN WALSH: The detailed grounds.
MR JUSTICE SULLIVAN: And your acknowledgement of service?
MR STEPHEN WALSH: The acknowledgement of service ....
MR JUSTICE SULLIVAN: Were the summary grounds with the acknowledgment of service or what?
MR STEPHEN WALSH: No. The acknowledgement of service was a brief acknowledgement of very summary grounds. The detailed grounds were those which were served on 23 July upon the council.
MR JUSTICE SULLIVAN: I understand. Thank you very much. I am not persuaded that there is any reason for departing from the normal order in this case. I appreciate that the second defendant feels somewhat aggrieved. It may or may not have been delayed, but the normal course is that there is one lot of costs unless there is some very distinct legal issue and it seems to me that, certainly as from March, the council' position was perfectly clear. It was firing on all cylinders. Essentially they were the same cylinders as those on which the second defendant would have wanted to fire and, whilst it was very nice to see Mr Stephen Walsh here, I am not persuaded that two lots of costs is appropriate.
So application refused and the claimant is to pay the first defendant's costs, those costs to be summarily assessed in the sum of £7,845.
Anything else? Good. Thank you very much.