Dinev & Ors, R (on the application of) v City of Westminster Council

A challenge to a temporary public licensing scheme may become academic when the scheme has expired and the applicants have had an opportunity to make representations. The court should not spend public time and money deciding an arid question which can no longer produce practical relief.

Illegality does not automatically exclude a legitimate expectation, but the existence and scope of any expectation depend on the circumstances. An express promise of individual consideration may create an expectation even for an unlawful immigrant. That does not necessarily establish an expectation of consultation about a licensing scheme affecting unlawful activity.

The applicants sought judicial review of a decision by the City of Westminster Council to introduce a three-month temporary licensing scheme for portrait artists in Leicester Square. They also challenged application-form requirements concerning national insurance, artistic qualifications and work permits, alleging incompatibility with article 43 of the EC Treaty. Those requirements were revised before the hearing below.

Mr Justice Maurice Kay dismissed the remaining challenge, concerning the absence of consultation. He held that the applicants, who had been engaged in unlicensed street trading, had not shown a legitimate expectation of consultation. The applicants renewed their application for permission to appeal, arguing that illegality had been treated as an impermissible restriction on legitimate expectation.

1. Permission refused. The renewed application concerned a temporary three-month licensing scheme which had been overtaken by events. The applicants had had ample opportunity during the proceedings to make representations, and the Council had been willing to consider them. There was therefore no practical reason to quash the original scheme.
2. The court considered, but did not need finally to determine, the legitimate-expectation issue. Legitimate expectation is not synonymous with lawful conduct. In Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, an illegal immigrant had an expectation of an individual opportunity to explain why he should not be deported because the Government had expressly promised such an interview. That was treated as a category 4 case, unlike the present case, which could only be a category 2 case under the classification discussed in R v Devon County Council, ex parte Baker [1995] 1 All ER 73.
3. R v South Somerset District Council ex parte DJB (Group) Ltd (1989) 1 Admin LR 11 was regarded as closely analogous. The distinction between seeking consultation before a possible licensing scheme and seeking to continue unlawful trading was difficult to draw. If the applicants could not complain about prosecution for the unlawful conduct, it was surprising that they could complain about the Council’s less repressive decision to introduce licensing.
4. The court nevertheless refused permission principally because the challenge had become academic. It would have been a gross waste of court time and public money to decide whether the applicants originally had a legitimate expectation of consultation.

Order: renewed application for permission to appeal refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused.
• Administrative Court, Queen’s Bench Division: Maurice Kay J dismissed the judicial review challenge to the temporary licensing scheme.