QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|Appeal by way of Case Stated|
|THE LORD MAYOR AND CITIZENS OF THE CITY OF WESTMINSTER|
|HORSEFERRY ROAD JUSTICES AND OTHERS||Respondents|
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Mr J Saunders QC (instructed by Messrs Jeffrey Green Russell, London W1) appeared on behalf of the Respondents.
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MR JUSTICE MACKAY:
"We were of the opinion that as the premises were licensed for intoxicating liquor, that a local authority Music and Dancing Licence was in force and that those parts of the premises to which the Special Hours Certificate was to apply had been completed in accordance with the approved deposited plans the Provisional Grant of the Special Hours Certificate should be declared Final in accordance with section 77A(3)."
"Whether we were correct in law in declaring the Provisional Special Hours Certificate under section 77A(3) of the Licensing Act 1964 final and thereby, an extension in the permitted hours until 3.00am in respect of a part of the premises for which there was no public entertainment licence in force."
The four persons named as the successful licensees in the final certificate are the respondents to this appeal. They support the justices' decision and would answer this question affirmatively.
"(1)Where, on an application made by a person interested in any premises in respect of which a grant or provisional grant of a justices' licence has been made and which are to be, or are in the course of being, constructed, altered or extended, the licensing justices are satisfied -
(a)that the premises are ...
(ii)premises for which a music and dancing licence is in force,
(b)that the whole or any part of the premises is intended to be used, and, if completed in accordance with plans deposited with the licensing justices, will be structurally adapted, for the purpose of providing for persons resorting to the premises ...
(ii)... music and dancing and substantial refreshment,
to which the sale of intoxicating liquor is ancillary,
the licensing justices may make a provisional grant, with or without limitations, of a special hours certificate for the premises or, if they are satisfied that part only of the premises is intended to be used or will be adapted as mentioned in paragraph (b) of this subsection, for that part."
"... I do not found anything in the Licensing Act which limits the word `premises' to an entire building. In my opinion any part of a building which is defined by metes and bounds is `premises' in respect of which a licence can be granted, provided it is in the justices' opinion structurally adapted for the sale of liquor."
Hence the limitation of the MDL to part of the larger premises (which can be perceived, for example, in section 82 of the Licensing Act 1964), says Mr Rankin, shows how within a set of licensed premises one part of those larger premises can be treated for certain purposes as separate premises.
"During whatever hours of trading are permitted by the SHC the drinking must `on the whole' be ancillary to the provision of food and/or entertainment; an SHC should not be granted to an ordinary public house so as to turn it into a `late night pub'."
Westminster in this case fear that the result of the justices' order will be to do just that: to open the door to the creation, deliberate or otherwise, of a late night bar pure and simple on the ground floor of Elysium.
"(1)If at any time while a special hours certificate is in force there is not also in force for the premises to which or part of which the certificate relates ...
(b)where the special hours certificate is granted by virtue of section ... 77A(3)(b)(ii) of this Act, a music and dancing licence ...
the special hours certificate shall thereby be revoked."
(2)At any time while a special hours certificate for any premises or part of premises is in force, the chief officer of police may apply to the licensing justices ... for the revocation of the certificate on the ground that, while the certificate has been in force -
(a)the premises have not, or the part has not, been used as mentioned in section ... 77A ...
or that on the whole the persons resorting to the premises or part are there, at times when the sale or supply of intoxicating liquor there is lawful by virtue only of the certificate, for the purpose of obtaining intoxicating liquor rather than for an appropriate purpose ..."
"Appropriate purpose" is defined as dancing and the obtaining of refreshments other than intoxicating liquor.