Bushell & Ors, R (on the application of) v Newcastle Licensing Justices & Ors

Special removal of an old on-licence may be refused only on the statutory grounds in sections 12 and 15 of the Licensing Act 1964. Using that procedure to obtain a licence which the legislation permits is not an abuse of process merely because it prevents wider objections being considered. The procedure is compatible with Convention rights where other effective remedies protect affected residents, including licence revocation, closure powers, environmental protection proceedings and nuisance claims. Licensing justices may adopt a general policy on adjournments, but must consider the particular circumstances and must not apply it inflexibly. In the statutory context, “premises” means the relevant building, not external areas outside it.

The claimants, residents near the Gresham Hotel in Newcastle, sought judicial review of preliminary rulings by the Newcastle Licensing Justices on Ultimate Leisure’s application to remove an old on-licence from Mim’s Bar to the Gresham under sections 12 and 15 of the Licensing Act 1964. They argued that the application was an abuse of process, that the statutory scheme was incompatible with Articles 6, 8 and Article 1 of Protocol 1, and that the hearing should be adjourned pending resolution of planning issues. Interested parties also argued that “premises” extended to the whole site, including external areas.

1. Abuse of process. The court accepted that legal process may be abusive where used for a collateral purpose unrelated to the remedy provided by law. However, Ultimate’s application sought to obtain a licence under the statutory scheme. Choosing the course offering the best prospect of success was not a collateral purpose. The licensing justices were therefore entitled to reject this challenge.
2. Convention rights. The evidence showed more than generalised concern. Existing disorder and drunken behaviour directly affected the claimants’ enjoyment of their homes. The proposed removal was therefore capable of infringing Articles 8 and Article 1 of Protocol 1. The determination of the application consequently engaged Article 6.
3. Sections 12 and 15 could not be “written down” by adding words concerning locality to the statutory reference to structural deficiency or unsuitability. Nevertheless, the scheme was proportionate. Parliament had pursued the legitimate objective of limiting the grounds for refusing transfer of an old licence, and other remedies remained available, including closure powers, licence revocation, environmental protection proceedings and nuisance claims. The statutory provisions were therefore compatible with the Human Rights Act 1998 and the ECHR.
4. Adjournment. The justices were entitled to begin with their general policy, based on the Good Practice Guide, that planning matters should be left to planning authorities. They nevertheless considered the uncertainty about planning permission, the absence of a live planning application and the risk undertaken by Ultimate. Their refusal to adjourn was not inflexible or Wednesbury unreasonable.
5. Construction. The application concerned only specified areas within the Gresham building. In any event, “premises” in the 1964 Act meant buildings in this context. The external areas could not be included when assessing whether the premises were structurally deficient or unsuitable.
6. The judicial review claim was dismissed. The claimants and Rindberg were ordered to pay costs, with £40,000 payable on account within 28 days. The damages issue arising from the stay was remitted for determination.