Jersey Unreported Judgments

Licensing- appeal in respect of condition of opening hours of the premises Pizza Quarter

[2017]JRC015

Royal Court

(Samedi)

19 January 2017

Before     :		W. J. Bailhache, Esq., Bailiff, and Jurats Nicolle and Olsen
Between	Salt Limited		Appellant
And	Minister for Economic Development, Tourism Sport and Culture		Respondent

Advocate D. J. Benest for the Appellant.

Advocate S. A. Meiklejohn for the Respondent.

judgment

the bailiff:

1.        This is an appeal pursuant to Article 11(1)(b) of the Places of Refreshment (Jersey) Law 1967 ("the 1967 Law").  The appeal is in respect of the attachment of a condition to the registration of the appellant's premises known as Pizza Quarter - Gorey, located at Café de Gouray, Le Mont de Gouray in the Parish of St Martin ("the premises") as a place of refreshment under the 1967 Law.  The condition requires that the premises are to be closed each evening by 11pm. 

The 1967 Law

2.        Article 2 of the 1967 Law provides that no person shall carry on a place of refreshment otherwise than on registered premises and by Article 1 a "place of refreshment" is defined to mean "any restaurant, café, snack bar, tea shop, canteen or any other place at which meals or refreshments are sold."  The requirement to obtain a licence under this legislation does not apply in the case of premises licensed under the Licensing (Jersey) Law 1974. 

3.        Under Article 6(1), an application having been properly made, the Minister may register or renew the registration of, a place of refreshment coupled with the identity of the proprietor or manager of the registered premises.  By Article 6(2):-

"The Minister may attach such conditions as he or she thinks fit to the registration or renewal of registration of a place of refreshment."

4.        The grounds for refusal of an application are set out in Article 8.  They are broadly in three categories - either the applicant, or where the applicant is a body corporate, an officer of the applicant, is not a fit and proper person to be registered or is not within the jurisdiction; or the premises are unsuitable as revealed in an inspection report commissioned by the Minister under Article 5; or the geographical situation of the premises is likely to cause damage to the enjoyment of amenity by others. 

5.        Article 10(1) provides:-

"The Minister shall not -

(a)       refuse an application for registration or renewal of registration;

(b)       attach to any registration a condition, other than a condition attaching to all registrations; or

(c)       cancel a registration under Article 9(1),

unless the Minister has given to the applicant or the proprietor, as the case may be, not less than 7 days' notice in writing of the Minister's intention to do so and reasons for so doing, and every such notice shall contain an intimation that if, within the period of such notice, the applicant ... informs the Minister in writing that he or she desires so to do, the Minister, before refusing the application, or attaching the condition, or cancelling the registration, will afford the applicant ... an opportunity of being heard in person or by a representative, against such refusal or cancellation or the attachment to the registration of such condition."

6.        By Article 10(2) the Minister is required, on receipt of a request of this effect to give a statement in writing of his reasons for the decision. 

7.        Article 13 contains provisions as to the permitted hours.  Unless otherwise provided by condition, the permitted hours are from 6am in the morning until 2:30am the following morning.  However, by Article 13(3):-

"Subject to Articles 10 and 11, the Minister may -

(a)       attach a condition to the registration, or the renewal of registration, of any premises at which, or on part of which, meals or refreshments are sold for consumption off the premises, requiring those premises, or that part, to be closed earlier than at the latest of the permitted hours;

(b)       if satisfied, after consultation with the Connétable of the parish concerned, that it is desirable to do so in order to avoid unreasonable disturbance to persons residing in the neighbourhood of any registered premises, at any time, attach a condition to the registration of those premises requiring them to be closed earlier than at the latest of the permitted hours." [emphasis added] 

8.        Finally, the right of appeal is contained in Article 11:-

"(1)     Any person aggrieved by -

(a)       ...

(b)       a condition attached to a registration, other than a condition attaching to all registrations; or

(c)       ...

may, within the 15 days next following the day on which notice of the decision of the Minister was given to the person under Article 10(2), appeal to the Inferior Number of the Royal Court, in term or in vacation, on the ground that the decision of the Minister was unreasonable having regard to all the circumstances of the case, and the decision of the Inferior Number of the Royal Court shall be final and without further appeal, but without prejudice to the right of the Inferior Number to refer the matter to the Superior Number of the Royal Court." 

9.        Apart from the power to refer the matter to the Superior Number, the phraseology of the substantive right of appeal under Article 11(1) is the same as is the case with an appeal under Article 109 of the Planning and Building (Jersey) Law 2002.  This language has been the subject of numerous decisions both by this Court and by the Court of Appeal and although the language of the appellate right under the Planning legislation has now changed, there is no reason to think that the authorities dealing with the construction of the previous right of appeal should have been affected.  Accordingly we have applied the legal test set out in Minister for Planning and Environment, Fairman and another v Hobson and another [2014] (2) JLR 57 and the other cases relied upon for the purposes of that judgment.  In short summary, the Court is obliged to consider whether the Minister has acted lawfully and in a procedurally correct way, and, in so far as the merits are concerned, the Court cannot escape the responsibility of forming its own view of the merits, but in deciding thereafter whether the Minister's decision was unreasonable in all the circumstances, the Court should give due respect to the expertise of the Minister's judgment, because mere disagreement with the decision on the basis that it was mistaken or wrong would not be enough.  The question was whether or not the decision under challenge was beyond the bounds of reasonable justification. 

10.      That being the relevant test we now look at the facts. 

Facts

11.      On 19^th April, 2016, the appellant submitted an application for the premises to be registered under the 1967 Law ("the application").  The application stated that, inter alia, the premises would operate from 9am until 11pm and that the type of business was listed as a "restaurant/café, a snack bar/kiosk and a takeaway/delivery". 

12.      The Minister informed both the Connétable of St Martin and a Mr Peter Richardson, a resident in the vicinity of the premises, of this application.  The latter was contacted because he had previously been in contact with the respondent setting out his concerns about the potential establishment of the appellant's business on that site. 

13.      Mr and Mrs Richardson responded on 20^th April with a letter expressing their concerns about the potential operation of the business from the premises.  In the affidavit of Mr Darren Scott, Assistant Director at the Economic Development, Tourism, Sport and Culture Department, the objections of Mr and Mrs Richardson were summarised as follows:-

(i)        The area where the premises are located is a residential area with units of dwelling accommodation in close proximity which would magnify any noises emanating from within the area;

(ii)       Other outlets providing a takeaway service ceased the provision of food at 10pm;

(iii)      If the premises are permitted to be open until 11pm this could act as an enticement for people leaving the public houses at the end of their evening of drinking on Gorey Pier to call in and order takeaway pizzas.  This would cause additional noise with customers waiting on their food;

(iv)      An alfresco area would add to the noise factor and be used by smokers which would lead to smoke being wafted into the nearby residential units; and

(v)       Safety issues and parking issues would likely be caused by persons taking advantage of the takeaway service and this could lead to residents having to call upon the Honorary Police. 

14.      At a Ministerial meeting on the 22^nd April, the application was discussed, and the concerns were noted.  It was understood that the Connétable of St Martin would be making written submissions, and in addition that the planning application made by the appellant as regards the premises had led to a number of objections being made by neighbours.  

15.      On 23^rd April, the Connétable of St Martin wrote to express concerns on behalf of residents of the area.  It was noted that although the previous business conducted from the premises had a third category restaurant licence which would have enabled it to stay open until 1pm, in fact that business had usually closed by 5:30pm.  The Connétable expressed concern about increased noise caused by the provision of a takeaway service, smells from cooking equipment and smokers near residential units, a lack of sufficient parking and the likelihood of dangerous and illegal parking on Gorey Hill, while customers collected takeaway food which would have a consequential effect on the demand on the resources of the Honorary Police.  He thus contended that 11pm was too late for closing time and encouraged the respondent to consider a condition on registration of a 9pm or 10pm closure, or that the Respondent consider refusing the application for registration.  

16.      A further ministerial meeting took place on 23^rd May when the respondent decided, provisionally, to grant registration to the business with the condition that it close at 10pm.  This has been designated by the respondent as "the Preliminary Decision". 

17.      On 13^th June, 2016, the preliminary decision was communicated to the appellant serving the requisite seven days' notice under Article 10(1)(b) of the 1967 Law that the Minister intended to attach a condition to the registration of the premises.  A further ministerial meeting took place on 17^th June, extending the statutory seven day notice period in the light of the communication received from the appellant that it wished to be heard in person against the condition.  That meeting took place on 29^th June when the attendees were Mr Darren Scott, Assistant Director on behalf of the respondent, Mr Andy Scott, director of the appellant, Advocate Benest, Mr Nathan Fox, Head of Policy and Legislation at the Economic Development, Tourism, Sport and Culture Department and a legal adviser from the Law Officers' Department. 

18.      As a result of that meeting, the respondent considered that it would be reasonable to amend the condition such that the premises closed at 11pm and not at 10pm.  This also had the advantage that it reflected precisely what the appellant had set out as its opening hours in the application form.  That Ministerial decision was made on 1^st July, 2016, and the appellant notified by letter dated 4^th July.  

19.      A discussion had been held between officers of the Department at about this time as to whether or not the appellant should be provided with copies of the correspondence from Mr and Mrs Richardson and the Connétable of St Martin.  On the basis that all the salient points in that correspondence had been communicated during the meeting of 29^th June, and because it was understood that there was no further dispute, the copy correspondence was not in fact provided. Indeed at that time the correspondence was not only not provided, but it was also not requested by the appellant. 

20.      On 19th July a notice of appeal was lodged. 

Contentions

21.      The appellant contends that the condition ought not to have been applied requiring it to close by 11pm.  It is said that the business is intended to operate more as a restaurant than anything else, with the emphasis on diners eating within the premises.  It will be a premium offering and the investment in the premises and the concept is said to have reflected that.  The appellant contends that although it completed the application form on the basis that the likely closing time would be 11pm, and although that remains the general business strategy, it was not anticipated that a condition would be imposed such that the restaurant could never open beyond that hour.  Such a condition removes and restricts flexibility so that it could not stay open later than 11pm even if that was necessary for a particular function or if there was obvious demand.  The takeaway element would be entirely ancillary.  The delivery element was particularly important, because the premises would be operated with drivers delivering meals to this part of the Island, using the premises as a form of delivery hub. 

22.      The appellant pointed out that other businesses in the area of Gorey were not subject to similar conditions and it was contended that it was arbitrary to impose a condition such as this one, especially because no such condition was imposed on the business previously operating at the premises, and indeed if a 3rd Category Restaurant Licence was obtained, it was said that the premises could stay open until much later. 

23.      Complaint was also made of the process which had been adopted by the Minister.  First of all, the appellant had not seen any of the correspondence setting out the concerns which the neighbouring residents were said to have in relation to the application, and the appellant had not been given a full opportunity to respond.  In any event those concerns were not evidenced anywhere and it was said they would not be supported by any proper scrutiny. 

24.      By his affidavit sworn on 6^th September, Mr Andy Scott, a director of the appellant answered the various objections which the respondent had received either from the Connétable of St Martin or from Mr and Mrs Richardson.  Mr Scott said in particular that the appellant had a sister company with three different businesses in the Island, none of which were subject to any restrictions and all of which were professionally managed.  No complaints had been received in respect of any of them.  

25.      In summary, in so far as the procedural objections are concerned, the appellant contended that it was procedurally improper for the respondent to receive correspondence from Mr and Mrs Richardson and from the Connétable of St Martin and not share that correspondence with the appellant, thereby enabling it to answer the objections raised before any preliminary decision had been reached. 

26.      The other procedural impropriety which is alleged by the appellant relates to the handling of the application - it appears that officials of the Minister, on receipt of the application, wrote both to the Connétable of St Martin and directly to Mr Richardson to advise the two of them of the application having been received - worse still wrote to the Connétable to suggest that "a unified response from the Parish would be favourable".  The objection therefore is twofold - firstly that the Minister through his officials chose to contact Mr Richardson and secondly that the officials seem to have been doing what they could actively to seek objections. 

27.      The Minister has contended that the appeal should be refused because the decision was reasonable having regard to all the circumstances of the case.  Consulting with the Connétable is a procedure which is envisaged by the 1967 Law, and the Minister duly allowed the appellant a right to be heard before attaching a condition to the registration. 

28.      It is said on behalf of the Minister that he has genuine concerns over the potential noise and disruption which may be caused by a business which includes a takeaway element in its operations, where that business is located in a residential area and within walking distance of a number of public houses and hotel bars.  In any event, the appellant had stated on its application form a desire to close at 11pm. 

29.       To the extent that the Court finds there has been any procedural irregularity, the Minister relies on the dictum in Ferguson v Minister for Planning and Environment [2013] JRC 022 at paragraph 65 where the Court said this:-

"The court will not quash the decision in every case where there had been some procedural irregularity. The court is concerned in an administrative appeal with considering whether the proceeding which were followed were, in all the circumstances, in general sufficient and satisfactory. Put another way, it is only when any procedural errors or unfairness are sufficiently serious to render the decision itself unreasonable that the Court will intervene."   

Discussion

30.      We accept that the approach set out by this Court in Ferguson v Minister for Planning and Environment [supra] reflects the approach which ought to be taken on issues of procedural irregularity.  What the Court was there saying was that an assessment needed to be made as to the seriousness of the procedural error.  If the procedural error caused unfairness, it is very likely that the Court would intervene. 

31.      In our judgment, there were two procedural improprieties in the present case.  We do not agree that it was improper to contact the Connétable, because the 1967 Law requires the Minister to consult with the Connétable.  We think that the way in which that consultation took place could be criticised as tending to suggest that there were good grounds for opposing the application, but the Connétable was duty bound to put his own assessment of the position (including his assessment of any objectors' position) as a response to the consultation and we do not think that any unfairness arose as a result of the language adopted by the officials.  We also consider that it was procedurally wrong to contact Mr and Mrs Richardson to invite comment.  There is no reason why they should have been singled out ahead of any other residents of the area.  It was for the Connétable to consult as he thought fit and put the product of that consultation before the Minister.  However, we think it is inevitable that the Connétable would have contacted Mr and Mrs Richardson as immediate neighbours, and in the circumstances we do not see that any unfairness arose as a result of the respondent's impropriety. 

32.      Similarly, once the objections had been received from the Connétable and from Mr and Mrs Richardson, we think the appellant was entitled to see them.  The content of those objections was presumably relevant to the respondent's decision to impose restrictions on the opening hours, and it follows that the right course would be for the Minister to share the consultation responses with the applicant.  Once again, in this case we accept that the impropriety caused no unfairness, because it seems to be clear that although the copy correspondence was not provided, the essential points of the objections were raised and referred to the appellant. 

33.      For these reasons, while we do not wish to endorse the procedure which was applied - indeed we think in the respects we have described that it was improper - we do not find the procedural objections to be sufficiently serious as to justify setting aside the decision. 

34.      We now turn to the merits, and conscious of the Fairview Farm principle we consider what our own view would have been in relation to this application.  The Court is generally familiar with the environs of the application site.  It lies in an area where there is an amount of night time activity in the form of restaurants and a public house.  It is true that there are residential properties in that area as well, but it is not solely a residential area.  Many of the restaurants nearby are licensed under the Licensing (Jersey) Law 1974 and operate without restrictions as to their opening hours, save such restriction as appear in that legislation. 

35.      We consider that there is probably something to be said for the proposition that a take away element is more likely to increase the noise emanating from the premises, because take away meals enable a greater footfall of customers.  Similarly, using the premises to operate as a hub for a delivery service in that part of the Island might lead to increased traffic departing from and arriving at the restaurant during the hours it is operating, and there may be additional noise gaining access to the building.  

36.      On the other hand, other premises nearby operate without such a time restriction and apparently without causing particular problems.  The majority of this Court considers that the use of the premises for a take away service is unlikely to lead to a significant increase in noise for as long as the take away service is ancillary to the restaurant business, as is the evidence before us and was the evidence before the Minister.  Similarly, the majority do not consider that it is likely to be viable to maintain a take away business outside the hours which the appellant intends to keep unless, contrary to the application, the take away business is not an ancillary business but is in effect the main business to be conducted from the premises.  In the circumstances the majority of this Court has reached the conclusion that it would not have applied the opening hours' restrictions which have been applied in this case. 

37.      We now turn to the application of the test on appeal described at paragraph 9 of this judgment and apply it.  It is plain to all members of this Court that the respondent has tried hard to find the right solution to this application and indeed we are all unsurprised by the concerns which have been expressed both by the Connétable of St Martin and by Mr and Mrs Richardson in respect of the application.  We have already said that we do not find the procedural improprieties to have been significantly serious as to provide grounds for setting aside the decision. 

38.      On the other hand, the respondent should have taken into account that there was no track record suggesting any particular problem either in relation to the premises or in relation to associate businesses of the appellant.  The majority of this Court take the view that, at the end of the day, it is not inevitable, and possibly not even highly likely that the concerns which have been expressed by the Connétable and the respondent will prove to be justified.  However, one will never know for as long as this condition is imposed.  The insertion of a time restriction means that experience will not demonstrate whether the restriction is a necessary restriction, nor will it enable the appellant to show that it is an undue and disproportionate exercise of power by the respondent.  On the other hand, there remains power in the Minister under the 1967 Law to revisit the condition at any future time if it should be necessary to do so. 

39.      In our judgment, it was unreasonable of the respondent not to accept that, in the circumstances of the application, it would be appropriate not to impose a restriction on hours until such time as there appeared to be a problem in relation to the business run from the premises.  Accordingly, by a majority, the appeal succeeds. 

40.      The question is then what order should follow.  We could send the matter back to the Minister for reconsideration, but it appears to us that there could be only one outcome insofar as that is concerned.  Accordingly we direct the issue of a fresh consent to the appellant without the condition as to opening hours.  We recommend that the Minister monitors the operation of the business, in consultation with the Connétable, so that, if necessary, a reconsideration of the issue of opening hour restrictions can take place at a later date, following the procedures set out in the 1967 Law. 

Authorities

Places of Refreshment (Jersey) Law 1967.

Licensing (Jersey) Law 1974.

Planning and Building (Jersey) Law 2002.

Minister for Planning and Environment, Fairman and another v Hobson and another [2014] (2) JLR 57.

Ferguson v Minister for Planning and Environment [2013] JRC 022.