England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE HOOPER)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

Friday, 11th May 2001

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal a judgment of Hooper J dismissing the applicant's ("Surrey Racing") claim for judicial review of a decision by the Snaresbrook Crown Court to grant the second respondents ("Chase"), a new betting office licence at 6 – 8 High Street, East Ham.
2. There is obviously much competition to attract the custom of the punters of East Ham. The crown court was dealing with Chase's appeal from the betting licencing justices who in November 1999 refused their application for a new licence but at the same time granted a new licence to Surrey Racing at 20 High Street on condition that they surrendered another licence which they held in the same locality. The previous year the justices had granted a new licence for a large office at 2 High Street, but this was cancelled following the refusal of planning permission. Corals had had an office round the corner for about ten years. So in 1997 the justices had licenced three offices in the locality. The following year, by refusing Chase's application, they only licenced two.
3. Surrey Racing and Corals, as so often happens in this world, opposed the grant of a new licence to Chase. The appeal to the Crown Court was heard, as is required, by a circuit judge (Judge Wakefield) sitting with four betting licensing justices - two from the area concerned. Late at the end of a two-day hearing they announced their decision to allow Chase's appeal, and later produced a one-page document summarising their reasons. In paragraph 1 they set out the statutory question which they had to consider. This is contained in the first schedule to the Betting Gaming and Lotteries Act 1963. Paragraph 20 of that schedule provides that justices shall grant betting office licences "save as provided in paragraph 19." Paragraph 19 contains three mandatory and three discretionary grounds for refusal. This case concerns the second discretionary ground, subparagraph (b)(ii), which says that an application for the grant or renewal of a licence may be refused on the ground that it:

"... would be inexpedient having regard to the demand for the time being in the locality of the facilities afforded by licenced betting offices and to the number of such offices for the time being available to meet that demand."

4. In paragraph 2 of its reasons the court defined the locality where it concluded:

"There appeared to be a strong demand for betting office services."

- and it identified the betting offices then available to meet that demand: the Surrey Racing and Corals offices.

5. The court had heard evidence from Chase based on their experience in a neighbouring locality that the demand would sustain three offices in this locality and from Surrey Racing that it would not. In paragraph 3 of their reasons the court concluded that Chase's profit forecast for the three offices was somewhat optimistic and Surrey Racing's was too pessimistic. They then said:

"We took the view that there was a possibility that demand was not sufficient to sustain offices at both Number 20 [the Surrey Racing office] and Number 6-8 High Street North [the Chase office]. We put it no higher than that. Having taken that possibility into account, we decided it should be left to market forces to determine whether both of those offices could co-exist as viable businesses.

4. We did not consider there was any public interest reason for refusing the applicant a licence. We found that there would be no adverse effect on the betting public or the general public if the licence was granted. We decided it was not inexpedient that a licence be granted to the applicant. The licence was therefore granted."

6. Before the judge an elaborate attack was mounted on this reasoning which the judge rejected. This attack is now repeated in the application for permission supported by a 65-paragraph skeleton argument and Mr Kolvin's succinct oral submissions to me this morning. He invites this court to take the opportunity to consider and construe the statutory provisions to which I have referred. In declining this invitation on paper, I said:

"Paragraphs 19 and 20 of the 1963 Act pose no difficulties of construction or application in practice as is shown by the fact that they (and their predecessors) have been successfully applied by licencing committees and Crown Courts up and down the country for over 40 years without recourse to the High Court or the Court of Appeal on any of the points now raised."

7. I remain firmly of this view. Licencing committees do not want to spend their time inching through learned judgments which in the end say no more than the simple words of the statute concerned. Lawyers of course love this because they can construe and put spin on the judgments as well. In my experience in this field judgments of the higher courts are only of value if the legislation is complicated or there is a real argument about how the decision-maker should go about its task. Neither of those features are present here.
8. The first broad question to be answered is whether it would be inexpedient to grant or renew a licence having regard to whether the demand for such a facility is met by existing facilities. If the decision-maker concludes that it is inexpedient to grant or renew the licence for this reason it has a discretion as to whether or not to do so.
9. Turning to the decision in this case, Mr Kolvin submits that the Crown Court failed to take material considerations into account and took into account immaterial considerations. Put shortly, he says that profit and viability were irrelevant; only demand is relevant and the court made no finding as to whether existing supply met demand and gave no reasons for rejecting Surrey Racing's case that it did. It had advanced a case based on a number of other indicators which they submitted, pointed to the conclusion that existing demand was met by the existing facilities and yet there is no mention of this evidence in the court's decision. Did they consider it and, if so, why did they reject it? Furthermore, Mr Kolvin submits that the wider public interest was not relevant to the question of expediency and indeed it is questionable whether it was relevant at all.
10. I do not accept these submissions. Profitability is an indicator of demand and both sides advanced evidence about profit on this basis which the court had to consider. The court concluded that there was a strong demand for betting office services and must, it seems to me, have accepted that this demand was probably not fully met by existing facilities. The existence of a possibility that it would not sustain both offices is not inconsistent with such a conclusion. Obviously this conclusion could have been better and more fully expressed and the reference to ultimate viability was unnecessary, but the court directed itself in the terms of the statute and made a clear finding that it was not inexpedient to grant the licence. That I think is the end of the matter. Whether the wider public interest falls to be considered as a matter of expediency or when exercising the discretion (if that stage is reached) is debateable, but I am clear that it may have some role to play in this type of case. But in any event in the instant case this consideration could not have harmed the applicant since the question the Crown Court considered was whether the grant of a licence to Chase would have any adverse effect.
11. It is unfortunate that the Crown Court did not deal, at least compendiously, with the further indicators of demand relied on by the applicants but they could have been in no doubt why they lost so I do not think they can challenge the decision for lack of reasons.
12. Standing back from the legal argument the decision is not at all surprising, in view of the fact that in 1997 the Licencing Committee had licenced three offices in this locality. The crown court's decision increased the number from two to three.
13. For those reasons this application for permission must be refused.
(Applications refused; no order for costs).