Davies v Westminster City Council

Judicial review does not provide an appeal on the factual merits of a licensing decision. A licensing body may evaluate evidence and reach conclusions about likely effects on local amenity and traffic, provided it acts within its statutory powers and follows a fair procedure. Factual mistakes justify judicial review only where they disclose a material public-law error, rather than an ordinary dispute about the weight or reliability of evidence. A costs order made within the lower court’s proper discretion will not be revisited on a permission application absent error of principle.

The applicant held a Westminster street-trading licence permitting newspaper sales. He sought a variation under the City of Westminster Act 1999 to sell Beatles souvenirs and memorabilia. A licensing sub-committee refused the application, principally because of anticipated crowds, congestion and effects on local residents.

Mr Justice Moses refused permission to seek judicial review, holding that the complaints concerned the factual merits. Mr Justice Pitchford later accepted the applicant’s undertaking not to trade in breach of the licence and ordered him to pay the council’s summarily assessed costs. The applicant applied for permission to appeal against both decisions and also sought an extension of time. The central issues were whether the licensing decision disclosed an arguable public-law error and whether the costs order was susceptible to appellate intervention.

1. Permission applications dismissed. The court refused permission to appeal against Mr Justice Moses’s refusal of permission to seek judicial review and against Mr Justice Pitchford’s costs order.
2. The complaints about consultation, alleged misinformation, the treatment of witnesses and expert evidence, the reference to tour groups, the location of the pitch, and alleged bias or unfairness were matters directed to the factual merits. The licensing sub-committee had heard evidence over two days, received written reasons and was entitled to assess the expert evidence.
3. Having examined the minutes and other documents, the court found nothing substantiating bad faith, bias or procedural unfairness. The consultation might not have been conducted as the applicant wished, but there was no breach of section 7 of the City of Westminster Act 1999. Any factual mistakes did not amount to the kind of error requiring judicial review.
4. The sub-committee was entitled to find a real possibility that a memorabilia stall near Abbey Road studios would attract crowds, narrow the footway and adversely affect vehicular sight lines, particularly during the tourist season. Those were conclusions open to it on the evidence.
5. The injunction application had been properly brought under section 222 of the Local Government Act 1972. The applicant had undertaken to the court not to trade in breach of his licence. The resulting costs order was within Mr Justice Pitchford’s proper judicial discretion. The court could not interfere with the £500 counsel’s fee without showing that the summary assessment was wrong in principle, and there was no such showing.

• High Court, Mr Justice Moses: On 12 December 2001, refused permission to seek judicial review of the licensing sub-committee’s refusal.
• High Court, Mr Justice Pitchford: On 14 January 2002, accepted the applicant’s undertaking concerning breach of the licence and ordered him to pay the council’s summarily assessed costs of £2,077.50; permission to appeal was refused.
• Court of Appeal (Civil Division): On 10 April 2002, Lord Justice Laws dismissed both applications.