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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rezouali, R (on the application of) v Horseferry Road Magistrates' Court & Anor [2000] EWHC Admin 318 (31 March 2000)
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Cite as: [2000] EWHC Admin 318
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R v. Horseferry Road Magistrates' Court and Westminster City Council ex parte Hamid Rezouali v. Westminster City Council v. Stephen Mendoza [2000] EWHC Admin 318 (31st March, 2000)
Case Nos: CO/2188/1999; CO/984/2000; CO/309/2000
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (QUEEN'S BENCH DIVISION)
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 31st March 2000
LORD JUSTICE KENNEDY
and
MR JUSTICE BUTTERFIELD
R
v Horseferry Road Magistrates' Court and Westminster City Council |
| |
- and - |
||
Westminster City Council v Stephen Mendoza |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Charles Salter ( for the applicant (Rezouali) and the respondent (Mendoza)(instructed Wilson Carca London, W1V 5AH)
Timothy Spencer (instructed by Legal Services, City of Westminster Council for the City of Westminster Council)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE KENNEDY:
1. BACKGROUND TO THESE PROCEEDINGS
We have before us an application for Judicial Review and two appeals by
way of Case Stated, arising out of two separate sets of proceedings taken by
Westminster City Council for the closure of the ground floor of Nos. 5 and 6
Walkers Court, Soho, London, W.1., on the basis that, in each case, the
premises were being used as an unlicensed sex shop. Mr Rezouali traded at No.5
and Mr Mendoza at No.6.
Mr Rezouali's case came before Mrs McIvor, sitting as an Acting Stipendiary
Magistrate at Horseferry Road Magistrates Court on 19th May 1999, when she gave
her reasons for making the order sought. The power to make the order is to be
found in The City of Westminster Act 1996, which also, in Section 5, affords a
limited right of appeal to the Crown Court. Mr Rezouali therefore exercised
his right of appeal and also sought permission to apply for Judicial Review.
On 7th June 1999 permission was granted by Mr David Pannick Q.C., sitting as an
additional judge of the Queen's Bench Division, but the permission was limited
to one matter, namely whether the Magistrate gave proper consideration to the
possibility of an order under Section 4(6)(b) of the 1996 Act that the use of
the premises as a sex establishment be discontinued immediately, before
proceeding to make the Closure Order under Section 4(6)(a). Mr Salter, on
behalf of Mr Rezouali, then applied to the Court of Appeal for permission to
argue a second point in the proceedings for Judicial Review, namely the width
of the appellate jurisdiction of the Crown Court. That came before Mance L.J.
and myself on 21st January 2000, when we concluded that the proper way to
proceed was to obtain the decision of the Crown Court in relation to the issue
of its jurisdiction in the appeal which had already been launched. That has
now been done, and it is agreed that the judgment of H.H. Judge Inman,
delivered on 17th February, 2000, shall be treated as the Case
Stated by the Crown Court.
Mr Mendoza's case was heard by a Metropolitan Stipendiary Magistrate, Mr
Wicks, at Bow Street on 7th September, 1999, when the Magistrate found that the
Council's failure to serve the occupiers of the basement of No.6 with a Closure
Notice was fatal to the Council's case. The Case Stated raises four questions
for our consideration which arise directly out of that finding.
There are, therefore, three issues which we have to address, looking at these
two cases overall, namely -
a) the extent of the right of appeal to the Crown Court:
b) whether, in the case of Mr Rezouali, the Acting Stipendiary
Magistrate gave sufficient consideration to the possibility of making an Order
under Section 4(6)(b) before proceeding to make an order under Section
4(6)(a):
c) the effect of the failure to serve the basement occupiers of
No.6.
There are many other issues which can arise in relation to the operation of
the relevant statutory provisions, and in order to deal with the issues which
do arise, I will have to say something about the framework of the legislation,
and about what is known to have been going on at the two premises with which we
are concerned, but that need only be done so far as is necessary to deal with
the three issues which I have identified. It is convenient to deal first with
Mr Rezouali's premises at 5 Walkers Court.
2. 5 Walkers Court - Rezouali
The ground floor has been used for some time as a video shop. Mr Rezouali has
worked there for some years, and since September 1998 he has run the premises
in partnership with Mr Nash, who has been the leaseholder since June 1998. The
premises have never been licensed as a sex establishment under Schedule III to
the Local Government (Miscellaneous Provisions) Act 1982, as amended by the
Greater London Council (General Powers) Act 1986.
Since September 1998 Miss Judith Lynch has been the occupier of the basement
of the premises, access to which can only be gained by way of the ground
floor.
During 1997 and 1998 Police Officers, and officers of Westminster City
Council, made overt and covert visits to the premises and raided them. Videos
were seized, by the police under The Obscene Publications Act 1959 and by
Council Officers under The Video Recordings Act 1984. There were nearly forty
police visits during the eighteen months prior to 8th June 1998 and prior to
that date, there had been two raids. On nineteen of the occasions when the
premises were visited, Mr Rezouali was present. Mr Nash was only present on
three occasions. On each occasion the person behind the counter was warned
that the form of trading could result in prosecutions under the 1959 and the
1984 Act. Similar warnings were given when the premises were raided, and on
each occasion an average of forty seven videos and sixteen magazines were
seized and subsequently forfeited under Section 3(3) of the 1959 Act.
The visit on 8th June 1998 was significant because following that visit Mr
Doyle, the relevant officer of the city council, being satisfied that the
premises were being used as an unlicensed sex establishment in breach of
Schedule 3 to The 1982 Act, as amended, signed a Closure Notice in respect of
the premises. On 10th June 1998 that Notice was served on the premises and on
Mr Rezouali, he being the person behind the counter on that date. That Notice
required the recipient either to close the premises to the public immediately,
or to discontinue the use of the premises as a sex establishment immediately.
An identical copy of the Notice addressed to the "owner/occupier" was fixed to
the premises in a conspicuous position.
Observations of the premises were then continued. During the ensuing six
months there were ten covert visits when videos contravening the 1984 Act were
purchased, and there were four raids when a total of two hundred and thirty six
videos were seized, which contravened the 1984 Act. Mr Rezouali was present at
two of the raids and was warned each time of the need to be licensed if trading
as a sex establishment, and of the consequences of trading without a
license.
When giving evidence before the Magistrate, Mr Rezouali made it clear that he
did not change his business after receipt of the Closure Notice. He did not
consider that he was using the premises as a sex establishment and on that
issue he considered that he was entitled to the decision of a court. He also
said that if the Magistrate disagreed with him as to the nature of his
business, he would make alterations, so that his trading corresponded with her
application of the statutory criteria to the facts.
3. Law: General
Since 1982 it has been an offence, where the legislation is applied, (and it
has been applied to Soho), to use premises as a sex establishment otherwise
than in accordance with the terms of a license granted under Schedule 3 of The
Local Government (Miscellaneous Provisions) Act 1980. A sex establishment
includes a sex shop, which is defined in paragraph 3 of Schedule 3 as "any
premises .....used for a business which consists to a significant degree of
selling, hiring, exchanging, lending, displaying or demonstrating -
a)Sex articles; or
b) Other things intended for use in connection with or for the purpose of
stimulating or encouraging -
i. Sexual activity; or
ii. Acts of force or restraint which are associated with sexual activity.
No other form of sex establishment is relevant for the purposes of this case.
Further provision for the control of such establishments was made by The City
of Westminster Act 1996.
The scheme of the 1996 Act is that where the Council is satisfied that
premises are being used as an unlicensed sex establishment, a Closure Notice
may be served (Section 3(1)). The Notice must be served on at least one person
having control of or an interest in the business carried on in the premises and
the occupier of any other part of the building in which the premises are
situated and to which, in the opinion of the Council, access would be impeded
if a Closure Order were made (Section 3(2)(a)(ii)). There are provisions as to
what must be specified in the Notice. The next step is that, not less than
fourteen days and no later than six months after service of the Closure Notice,
the Council can lay a complaint before a local Justice of the Peace, seeking a
Closure Order (Section 4(1)). If the Justice of the Peace so decides, a
Summons will then be issued directing those having control of or an interest in
the business, and who have been served with a Closure Notice, to answer the
complaint. Notice of the hearing must then be given to all others on whom the
Closure Notice was served (i.e. upon the occupier of any other part of the
building in which the premises are situated and to which, in the opinion of the
Council, access would be impeded, and any other person having an interest in
the premises) - Section 4(4). The Court then proceeds to hear the complaint,
and if satisfied that -
a) the Closure Notice was properly served;
b) at the time the Closure Notice was served and the premises were being used
as a sex establishment in breach of Schedule 3; and
c)(i) the breach of Schedule 3 has not been remedied; or
(ii) the breach of Schedule 3 has been remedied, but considers that there is
a reasonable likelihood that there will be a further breach of Schedule 3;
the court may make such order as it thinks fit (Section 4(6)). In particular
the court may order immediate closure until the Council issues a certificate
under Section 4(11) - see Section 4(6)(a). Alternatively the court may order
that the use of the premises as a sex establishment be discontinued immediately
(Section 4(6)(b)). If making a Closure Order under Section 4(6)(a) the Court
can make such conditions as it thinks fit, relating to the admission of
specified individuals onto the premises (Section 4(8)).
Section 4(9) provides that a Closure Order under Section 4(6)(a) must not be
made if the closure of the premises would result in any person other than the
occupier of the premises being impeded in his access to any other part of the
building in which the premises are situated, and of which he is the
occupier.
An Order under Section 4(6) ceases to have effect on the Council issuing a
certificate to the effect that it is satisfied that the breach of Schedule 3
has been remedied, and that the premises will not be used as a sex
establishment in the future (Section 4(11)).
In addition, Section 4(12) provides that the defendant and any person having
an interest in the premises may apply to the Magistrates Court for the Order to
be discharged.
4. Appeal to the Crown Court
I turn now to the right of appeal to the Crown Court, to be found in Section 5
of the 1996 Act. Anyone on whom a Closure Notice has been served, and others
having an interest in the premises, can, within 21 days from the Closure Order
being served, appeal to the Crown Court (Section 5(1)). The Section continues
-
2) An appeal under sub-section (1) above may be brought on one
or both of the following grounds:-
a) the person on whom the Closure Notice was served was not at the time at
which it was served, such a person as described in Subsection (2) of the said
Section 3; or
b) the premises in respect of which the Closure order was made were not being
used as a sex establishment in breach of Schedule 3 at the time at which the
Closure Notice was served.
3) On an appeal to the Crown Court under this section, the Court may make such
order as it thinks fit, and it shall be the duty of the Council to give effect
to such order."
So although many issues may have to be considered by the Magistrates Court
before it decides to make a Closure Order, Section 5(2) does indicate that only
two of those issues can be a ground of appeal to the Crown Court. Of course
other issues can be raised by means of Case Stated or by means of an
application for Judicial Review, and in addition there are the provisions of
Section 4(11) and Section 4(12), to which I have already referred.
Mr Salter, submits that a literal reading of section 5(2) frustrates what must
have been the intention of Parliament when the Statute was enacted. He accepts
that when a Closure Order is being sought before a Magistrates Court, some of
the matters to be proved are procedural, and others are concerned with the
nature of the trading which is alleged to have been taking place at the
relevant premises. Mr Salter accepts that Parliament may well have intended
that the procedural decisions should not be re-considered in the Crown Court.
They should be reconsidered, it at all, in this court, whereas decisions as to,
for example, whether the business consisted to a significant degree of selling
sex articles could properly be the subject of an appeal to the Crown Court.
But, as Mr Salter points out, the Statute does not seem to produce a neat
division of that kind. In particular -
i) as the Crown Court is entrusted with hearing an appeal in relation to
whether the premises were being used as a sex establishment in breach of
Schedule 3 when the Closure Notice was served (see Section 4(5)(b) and Section
5(2)(b)) why is it not also entitled to consider whether the breach has been
remedied, or is likely to recur (Section 4(5)(c))? Or whether conditions
imposed pursuant to Section 4(8) are inappropriate?
ii) given the powers entrusted to the Crown Court by Section 5(3), if it is
asserted in the grounds of appeal that the premises were not being used as a
sex establishment in breach of Section 3 when the Closure Notice was served,
then, even if that ground of appeal fails, the Crown Court can make such order
as it thinks fit, so considerations such as whether the breach has been
remedied, or is likely to recur, and whether an Order under Section 4(6)(b)
would be more appropriate than an order under Section 4(6)(a) can be
entertained at that stage.
It can be argued that Section 5(3) is only intended for use when an appellant
succeeds in relation to one of the two grounds of appeal set out in Section
5(2), but, as Mr Salter points out and Mr Timothy Spencer for the Council
accepts, if the appellant is successful the relief to which he is entitled is
obvious. He should either receive a declaration that, as he fell outside the
ambit of Section 3(2), the Closure Notice should not have been served on him
or, if the appeal has been on the basis that the premises were not being used
as a sex establishment in breach of Schedule 3 at the time at which the Closure
Notice was served, then, if the appeal succeeds, the Closure Order must be set
aside. So, in my judgment, the wide wording of Section 5(3) can only have been
intended to give the Crown Court full power to make "such order as it thinks
fit" once an appeal is properly before it. If, however, the Crown Court were
to form the opinion that wholly unmeritorious grounds of appeal were advanced
under Section 5(2)(a) or (b) simply in order to enable the Crown Court to
exercise its powers under Section 5(3), then in my judgment the Crown Court
would be entitled to refuse to exercise its powers under Section 5(3) on the
basis that to do so would amount to an abuse of process.
In his skeleton argument Mr Salter also criticised Section 5(2)(b) as being at
least suggestive of a reversal of the burden of proof. That I cannot accept.
The sub-section only indicates a ground of appeal, not the way the matter is to
proceed when the appeal is heard.
Mr Salter's more ambitious submission is that in the light of the problems to
which I have referred we should accept that Parliament intended to give a right
of appeal to the Crown Court, and either delete Section 5(2) entirely, or
adjust the wording of that sub-section so as to remove the restrictions on the
right of appeal which it contains. We were reminded that in McMonagle v
Westminster City Council [1990] 2 AC 716 the House of Lords did feel able
to treat four words in paragraph 3A of Schedule 3 to the Local Government
(Miscellaneous Provisions) Act 1982 as mere surplusage, but as Lord Bridge said
at 726:
"I recognise that this is a strong course to take in construing a statute and
one which imputes an unusual degree of ineptitude to the draftsman.....the
presumption that every word in a statute must be given some effective meaning
is a strong one, but the courts have on occasion been driven to disregard
particular words or phrases when, by giving effect to them, the operation of
the statute would be rendered insensible, absurd or ineffective to achieve its
evident purpose. The principle is shortly stated by Brett J. in Stone v
Yeovil Corporation [1876] 1 CPD 691, 701 where he said:
`It is a canon of construction that, if it be possible, effect must be given to
every word of an Act of Parliament or other document; but that, if there be a
word or phrase therein to which no sensible meaning can be given, it must be
eliminated'".
Although the power which Mr Salter invites us to exercise does exist, it can
only, as Lord Bridge emphasised, be used in extreme circumstances, and that was
recently underlined by Lord Nicholls in Inco-Europe Ltd., v First Choice
Distribution 9th March 2000 where he said, towards the end of a speech with
which the other members of the House agreed -
"This power is confined to plain cases of drafting mistakes. The Courts are
ever mindful that their constitutional role in this field is interpretative.
They must abstain from any course which might have the appearance of judicial
legislation. A statute is expressed in language approved and enacted by the
legislature. So the courts exercise considerable caution before adding or
omitting or substituting words. Before interpreting a statute in this way, the
court must be abundantly sure of three matters:
1) the intended purpose of the statute or provision in question;
2) that by inadvertence the draftsman and Parliament failed to give effect to
that purpose in the provision in question; and
3) the substance of the provision Parliament would have made, although not
necessarily the precise words Parliament would have used, had the error in the
Bill been noticed. The third of these conditions is of crucial importance.
Otherwise any attempt to determine the meaning of the enactment would cross the
boundary between construction and legislation."
In my judgment in this case, none of those three conditions are fulfilled. As
Butterfield J. pointed out in the course of argument, if the right of appeal to
the Crown Court was to be unfettered, Section 5(2) could simply have been
omitted. It was clearly introduced to restrict the right of appeal. May be,
as Mr Spencer submitted, that was an attempt to save costs by cutting down on
the issues which could be re-ventilated before the Crown Court. Whatever the
reason, I am satisfied that the Parliamentary purpose was not to give an
unqualified right of appeal to the Crown Court. I have no reason to think that
it was any inadvertence on the part of the draftsman or Parliament which failed
to give effect to that purpose, and therefore the question of what other words
Parliament might have used simply does not arise. The Crown Court and this
Court must give effect to Section 5(2) and Section 5(3) as they stand. The
power in Section 5(3) is available for use in the way that I have indicated.
The appeal by way of Case Stated from the Crown Court is therefore
dismissed.
5. The Decision to make a Closure Order
I turn now to the second issue which we have to consider, namely whether in
the case of Mr Rezouali, the Acting Stipendiary Magistrate was entitled to make
a Closure Order rather than an Order under Section 4(6)(b) requiring that the
use of the premises as a sex establishment be discontinued immediately. As Mr
Salter recognises, the Magistrate did consider the possibility of an Order
under Section 4(6)(b) because she said so when she gave her ruling. She did
not at that time spell out her reasons for not following that course, but they
are now to be found in her Affidavit, the material part of which is paragraph
4, which reads:-
"In making the immediate Closure Order, I was mindful of the history of these
premises. There had been at least four occasions subsequent to the service of
the Closure Notice when "sex articles" had been seized and no application for a
licence had ever been sought. I felt it was futile to make an order under
Section 4(6)(b) because on the evidence, I believed it would be disregarded.
In making my decision, I took the view that the stronger option was necessary
to achieve the objectives of the 1996 Act. I was however aware of the
protections afforded in sub-sections 11 and 12 of section 4."
Mr Salter submits that the final sentence shows that the Magistrate had regard
to an immaterial consideration. I disagree. It says no more than that having
decided "that the stronger option was necessary", the Magistrate recognised the
statutory possibility of eventual relief.
This court cannot interfere with that decision of the Magistrate as to the
order which should be made, unless her order falls clearly outside the broad
area of the lower court's discretion (see R v Truro Crown Court ex parte
Adair [1997] COD 296). That is a more stringent test than the test which
may be applied if the Crown Court decides to exercise its powers under Section
5(3), the Crown Court having thus far ruled only in relation to the issue of
jurisdiction, and having yet to hear the substance of the appeal to that court.
For present purposes, therefore, I propose to say no more than that, so far as
this court is concerned, in the light of the information now available to us, I
am satisfied that this court should not interfere. It follows that the
application for Judicial Review fails and is dismissed.
6. The Mendoza Appeal
The premises of Mr Mendoza at No.6 were also observed and visited over the
months prior to June 1998, and on 10th June 1998, a Closure Notice was served
on him personally. A copy of the Notice addressed to the owner/occupier was
fixed to the front door of the ground floor premises. At No.6 there was a
basement, access to which could only be achieved by way of the ground floor.
There was a similar basement at No.5, but the adequacy of service on the
occupier of that basement is not one of the issues with which we are concerned.
By 10th June 1998 two men, named Janjeva and Scott, occupied the
basement of No.6 to store fruit, but when the Closure Notice was served the
Council through its officers was genuinely unaware that the basement was
occupied by anyone. As the Magistrate, Mr Wicks, put it in his Case Stated -
"(I) despite numerous visits by police officers and officers of the appellant
(the Council) to the premises, 6 Walkers Court, in the weeks and months prior
to the service of the Closure Notice, none of those persons had become aware of
the presence of occupiers in the basement.
(J) at the moment the Closure Notice came to be drafted, the Officers of the
appellant responsible for the drafting and all other officers of the appellant
were genuinely unaware of the presence of occupiers in the basement of 6
Walkers Court."
The Magistrate nevertheless held that failure to serve the Closure Notice upon
the basement occupiers until 8th January 1999, when the Council first became
aware of their existence, was fatal to the council's case, even though the
basement occupiers were present in the Magistrates Court and were represented
there by Counsel. In order to decide whether the Magistrate was right it is
necessary to look carefully at the statutory provisions as to when a Closure
Notice may be served, who must be served, and how service may be effected.
Section 3(1) of the Act provides that where the Council are satisfied that
premises are being used as a sex establishment without a licence "they may
serve a Closure Notice in respect of those premises". The word premises is
defined in Section 2 as including "any premises, part of premises, vehicle,
vessel or stall". So, as Mr Spencer pointed out, the Closure Notice had to be
targeted on the ground floor of No.6, which was the only part of the building
allegedly used as a sex establishment. Turning now to who must be served,
Section 3(2) provides:-
"Where a Closure Notice is served -
a) it shall be served on
i) at least one person having control of or an interest in the business carried
on in the premises; and
ii) the occupier of any other part of the building in which the premises are
situated and to which, in the opinion of the Council, access would be impeded
if an Order under Section 4(5)(a) below were made in respect of the premises;
and
b) it may be served on any other person having an interest in the premises.
The reference to section 4(5)(a) in ii) above is an error. It should be a
reference to section 4(6)(a).
Despite Mr Spencer's submissions to the contrary, it seems to me that the word
"premises" in Section 3(2)(a)(ii) must have the same meaning as it has in
Section 3(1), and therefore any basement occupier was an occupier of another
part of the building. What may have been regarded as the premises for the
purposes of, for example, any lease, does not seem to me to be material.
However, as Mr Spencer pointed out, if the Council is genuinely unaware that
another part of the building is occupied, it cannot form the opinion that
access to that other part would be impeded for the occupier if a Closure Notice
were made in respect of the premises, and the formation of that opinion is a
statutory condition precedent to the obligation to serve. Of course I accept
that if it was plain to anyone who thought about it that another part of the
building was occupied, and that the occupier's access would be impeded if a
Closure Order were to be made, then in my judgment the Council could not escape
its service obligations under Section 3(2)(a)(ii) by closing its eyes to the
obvious, but nothing in the Case Stated leads me to conclude that situation
applied here. Mr Slater bravely sought to persuade us that the opinion of the
Council was only relevant in relation to the extent to which access would be
impeded, but access is only relevant if someone needs to use it, and
accordingly in my judgement, in June 1998, the Council was under no obligation
to serve those basement occupiers of whose existence it was unaware.
If I am wrong about that, then I would accept that for the purposes of the
statute, a copy of the Closure Notice was not served on the basement occupiers,
even though, as I have already stated, a copy of the Notice addressed to the
owner/occupier was fixed to the front door of the ground floor premises,
because Section 8 of the Act, which deals with service of notices, clearly
contemplates notices being either addressed to intended recipients by name or
as occupiers of the part of the building which they occupy (see especially
Section 8(2)).
However, in my judgment, there is much to be said in favour of Mr Spencer's
further submission to the effect that the statutory provisions as to the
service of notice are directory rather than mandatory. I accept, as Mr Slater
points out, that in Section 3(2)(a) the word used is "shall", as opposed to
"may" in Section 3(2)(b). I further accept that Section 4(5)(a) requires a
court which is asked to make a Closure Order to be satisfied that the Closure
Notice was properly served, but the plain object of the service provisions is
to ensure that those who may have an the interest are advised of what is
happening and have an opportunity to respond. It is difficult to envisage how
the occupier of another part of the building would respond to the information
that a Closure Notice has been served otherwise than by attending to make
representations as and when a Closure Order was sought, and, as I have said,
the basement occupiers were aware of the application for a Closure Order in
sufficient time to avail themselves of that opportunity, so it is obvious that
they did not suffer in any way as a result of not being served with a Closure
Notice in June 1998. Prejudice is not, of course, the ultimate test, but nor
is the use of the word "shall" in the statutory provision. It is necessary
also to look at the gravity of the breach in relation to the statutory purpose,
as was made clear by the House of Lords in London and Clydeside Estates v
Aberdeen District Council [1980] 1 WLR 182, and by Sedley J. in R v
Tower Hamlets LB ex parte Tower Hamlets Traders Association [1994] COD 325.
Adopting that approach it seems to me that even if, which I do not accept, the
Council did fail to discharge its obligations under Section 3(2)(a)(ii), that
failure should not have been regarded as fatal to its application for a Closure
Order.
7. Form of Order
What I have said thus far relates to the statutory obligation to serve the
Closure Notice on the occupiers of the basement, which, as I have indicated, I
regard for the purposes of Section 3(2) as another part of the building, but I
now turn to the question of what order can be made when, as in each of these
cases, another part of the building (i.e. the basement) is occupied.
Sub-sections (8) and (9) of Section 4 read as follows:-
"(8). Such conditions as the court thinks fit relating to the admission of
specified individuals onto the premises may be applied by the court to an order
made under sub-section (6)(a) above.
(9). An order under sub-section (6)(a) above shall not be made if closure of
the premises would result in any person other than the occupier of the premises
being impeded in his access to any other part of the building in which the
premises are situated and of which he is the occupier."
Read on its own Section 4(9) does suggest that where, as in each of these
cases, the only access to the other part of the building (i.e. the basement) is
through the ground floor premises which the Council are seeking an order to
close, then no Closure Order can be made because the result will be that the
basement occupier will be impeded in his access to the basement. But Section
4(9) is preceded by Section 4(8), and if the power in Section 4(8) is exercised
so as to enable the basement occupier to have unimpeded access to his part of
the building, then I am satisfied that Closure Orders under Section 4(6)(a)
can be made without contravening Section 4(9).
8. Conclusion
I turn finally to the four questions posed at the end of the Mendoza Case
Stated which are as follows:
a) Was I right in law to rule that the occupiers of the basement were occupiers
of another part of the building in which the premises were situated?
b) Was I right in law to rule that failure to serve the occupiers of the
basement with a Closure Notice was fatal to the appellant's case?
c) In the event that I was right in my determination that the Closure Notice
was improperly served, was I right in law to dismiss the application,
notwithstanding that a copy of the Closure Notice had been affixed to the front
door of the ground floor entrance to 6 Walkers Court, a copy had been served
upon the interveners subsequent to the service upon person having control of
the subject business and the interveners appeared before me, represented by
Counsel?
d) Was I right in law to hold that in the event of there being an occupier of
any other part of the subject premises to which access would be impeded, the
Closure Order could only have been one for discontinuance under Section
4(6)(b)?
I would answer the first question in the affirmative, and the second in the
negative. The premise at the beginning of question 3 is such as to make it
unnecessary to consider that question further, save in so far as it has already
been considered in the course of this judgment, and question 4, I would answer
in the negative. I would therefore allow the appeal by way of Case Stated and
remit the matter to the Magistrate so that he may continue the hearing.
In the case of Rezouali the unsuccessful appellant, and in the case of Mendoza
the unsuccessful respondent, must bear the costs of the proceedings in this
court. We were asked also to consider the possibility of permission to appeal
to the Court of Appeal. I have considered that possibility, and would not
grant permission in either case.
MR JUSTICE BUTTERFIELD: I agree.
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