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

For special removal of an old on-licence, the statutory condition that premises are “about to be” pulled down or occupied for a public purpose requires practical certainty and imminence. A compulsory purchase order, requiring confirmation and a public inquiry, will not ordinarily satisfy that condition by itself.

Licensing justices have a discretion whether to refuse removal on structural grounds. They are not compelled to grant removal merely because they find no structural deficiency or unsuitability. They must give sufficient reasons, particularly where conflicting expert evidence is central. Relevant undertakings, noise effects and toilet facilities may be considered, but the decision must explain how the evidence and competing considerations were resolved.

The claimants, local residents and objectors, sought judicial review of the decision of Newcastle upon Tyne Licensing Justices granting Ultimate Leisure’s application for special removal of an old on-licence from Mims Bar to the Gresham Hotel.

The claim challenged both the Justices’ jurisdiction under section 15 of the Licensing Act 1964 and their reasoning on structural suitability, noise transmission, toilet facilities and the effect of an undertaking given by Ultimate. The central issues were whether the statutory conditions for special removal were satisfied and whether the Justices had lawfully exercised their discretion and given adequate reasons.

1. Decision quashed and matter remitted. The Justices’ decision was quashed. The application for special removal was remitted to a differently constituted panel of Justices advised by a different clerk.
2. Under section 15(1)(a) of the Licensing Act 1964, the expression “about to be” requires both practical certainty and imminence. The making of a compulsory purchase order was insufficient because confirmation by the Secretary of State, a public inquiry and a decision on confirmation remained outstanding. The Justices had therefore misdirected themselves by treating the making of the order as the decisive event.
3. The court should be slow to refuse judicial review on the basis that the decision-maker would inevitably have reached the same conclusion if properly directed, especially where the decision-maker had not addressed the relevant facts. Relief should be withheld only in a clear and obvious case. The evidence did not establish clearly that occupation or demolition was certain and imminent.
4. The structural grounds in sections 12 and 15 were discretionary. A finding that premises were not structurally deficient or unsuitable did not make the grant compulsory. The Justices could grant removal despite structural deficiencies or insufficient undertakings, and even where escaping noise created a statutory nuisance, but they had to acknowledge that conclusion and explain it.
5. The Justices’ reasoning on noise was inadequate. They did not explain how they resolved conflicting expert evidence concerning inaudibility standards, crowd noise, flanking transmission and increased sound power. They also failed to address the limitations of the undertaking, including the absence of a defined standard for sound levels. The special sensitivities of residents were matters for the Justices to weigh, not matters they were legally required to treat as determinative.
6. The reasoning on toilet facilities was also defective. The Justices relied on standards and calculations not supported by evidence or previously put to the parties. They had to consider users of external as well as internal bar areas. Their reasons had to tell the parties in broad terms why the decision was reached and, where experts conflicted, which expert view was preferred and why.

• Earlier stage: Owen J granted permission for an earlier judicial review application and dismissed it on 31 July 2003. Permission to appeal was refused by Sedley LJ on 29 August 2003.
• High Court (Administrative Court): The present claim challenging the Justices’ decision of 1 December 2003 was allowed. The decision was quashed and the special-removal application remitted for reconsideration.