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

Special removal under s 15 of the Licensing Act 1964 is exceptional and must be strictly construed. The statutory conditions must exist when the application is made; later developments cannot cure an incompetent application. Premises are not necessarily about to be pulled down or occupied for a public purpose merely because a compulsory purchase order has been proposed or confirmed. The court must assess whether implementation is genuinely imminent and whether the acquisition is being followed through. Public ownership or control of vacant premises does not itself amount to occupation for a public purpose. Where an application falls outside s 15, the justices have no discretion to grant it and the proper order is to quash the decision rather than remit it.

Ultimate Leisure Group plc applied for special removal of an on-licence from Mims Bar to the Gresham Hotel in Newcastle. The Newcastle Licensing Justices granted the application after an adjourned hearing. Local residents sought judicial review, and Lightman J held that the special-removal procedure was unavailable, quashing the decision and remitting the application for reconsideration: [2004] EWHC 446 (Admin); (2004) [57] Licensing Review 13.

Ultimate appealed. The central issues were the relevant date for assessing the statutory conditions, whether the premises were about to be pulled down or occupied for a public purpose, and whether the matter should be remitted.

The appeal was dismissed with costs. The Court of Appeal held that the application was incompetent when made and that the Justices’ decision should be quashed without remittal.

1. Relevant date. Paragraph 10 of Schedule 1 to the Licensing Act 1964 meant that the November hearing was an adjourned licensing session, not a new application. The conditions in s 15 had to exist when the application was made, or at the latest when it first came before the Justices. An adjournment could not convert an initially defective application into a valid one.
2. Meaning of the statutory condition. The phrase about premises being about to be pulled down or occupied for a public purpose conveyed genuine immediacy in the licensing context. A proposed compulsory purchase order, or a mere probability of implementation, was insufficient. Even confirmation of an order might not suffice without evidence that it was being followed through and when implementation would occur. The historical context of s 14 of the Licensing Act 1828 supported a construction based on necessity and urgency.
3. Occupation. Actual public ownership or control of vacant premises did not constitute occupation for a public purpose under s 15(1)(a). Harris v Birkenhead Corporation, concerning occupation under the Occupiers Liability Act, involved a materially different statutory context and did not assist.
4. Strict construction and remedy. Maurice Kay LJ emphasised that special removal was exceptional because it restricted the Justices’ refusal powers and left objectors without an appeal. The provisions should therefore be strictly construed. Since the application fell outside s 15(1)(a), the Justices had no option but to refuse it. Later events could not be taken into account, and remittal was inappropriate.
5. Obiter guidance. The guidance given by Lightman J on the evidence did not form part of the essential reasoning and did not bind Justices considering any fresh application. The Court also observed that detailed Part 35 procedures should not automatically be imposed on licensing tribunals, although advance exchange of technical evidence, meetings of experts and adjournment could be appropriate.

• Court of Appeal (Civil Division): Appeal dismissed with costs. The decision of the Licensing Justices was quashed without remittal; permission to appeal to the House of Lords was refused.
• Queen’s Bench Division, Administrative Court: Lightman J quashed the Justices’ decision and remitted the application for reconsideration: [2004] EWHC 446 (Admin).