R (on the application of Bushell and others (Respondents) v. Newcastle upon Tyne Licensing Justices and another (Appellants)

An appeal does not become moot merely because the legislation governing the substantive dispute has been repealed. The House may determine a genuine issue which still affects the parties’ rights, liabilities or costs, even though the issue has ceased to be of general public importance.

Under section 15(1)(a) of the Licensing Act 1964, a public authority occupied licensed premises for a public purpose when it obtained legal possession for a future statutory redevelopment scheme. Physical entry, immediate use and enjoyment were unnecessary. Possession was sufficient because it immediately excluded the licensee from carrying on the licensed business.

A city council acquired a closed public house with vacant possession for a statutory redevelopment scheme. The former owner applied under section 15 of the Licensing Act 1964 to remove the premises’ on-licence to another property. The licensing justices granted the application.

On judicial review, Lightman J held that the justices lacked jurisdiction because the acquired premises were neither occupied nor about to be occupied for a public purpose: [2004] EWHC 446 (Admin). The Court of Appeal affirmed that decision: [2004] EWCA Civ 767.

Before the appeal reached the House, the 1964 Act was repealed and the licence could no longer be used or converted. The House considered whether the appeal should nevertheless be heard and, if so, whether the council’s legal possession amounted to occupation for a public purpose under section 15(1)(a).

1. Appeal allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Scott, Lord Rodger, Lord Walker and Lord Brown agreed with his reasons and the proposed order.

2. Per Lord Hoffmann, the appeal was not moot. Its determination could still affect liability for the costs incurred below and, more importantly, an outstanding claim for damages under a cross-undertaking. The previous decisions in which the House declined to hear appeals were distinguishable because their outcomes could have affected neither the parties’ substantive positions nor costs. The loss of the issue’s former general public importance did not prevent the appellant from pursuing a genuine issue between the parties. A grant of leave ordinarily permits such an issue to be brought before the House, although the House may retain a discretion to revoke leave where subsequent events render the prospective expense disproportionate.

3. Per Lord Hoffmann, the meaning of “occupy” depends upon the statutory purpose and context. Section 15 of the Licensing Act 1964 addressed events outside a licensee’s control which made, or would shortly make, continued licensed trading impossible. Its concern was therefore whether the public authority’s occupation excluded the licensee, rather than whether the premises were already being beneficially used by the authority.

4. The council obtained legal possession when the sale with vacant possession was completed. That possession entitled it to exclude others and meant that the former owner would have committed trespass by re-entering to trade. Although mere public ownership of vacant premises would not suffice, legal possession did. Physical entry, active control, and present use and enjoyment were unnecessary. The possession was for a public purpose because the council held the premises to implement its statutory redevelopment scheme.

5. The possibility that the special-removal procedure might be exploited did not justify a narrower construction. The relevant statutory language had substantially retained its meaning since legislation enacted when licensing justices enjoyed a complete discretion. Later restrictions upon the grounds for refusing removal could not alter that meaning. The proposed narrow construction would also operate irrationally by making eligibility depend upon how quickly the acquiring authority used or demolished the premises.

6. The conditions for special removal were satisfied, and the justices had jurisdiction to grant it. The interested parties were ordered to pay the appellants’ costs in the House and below.

1. House of Lords: The appeal was allowed unanimously. The Court of Appeal’s order was reversed, and the licensing justices’ jurisdiction to grant the special removal was upheld: [2006] UKHL 7.

2. Court of Appeal: The court affirmed Lightman J’s order, holding that mere public ownership of vacant premises did not establish occupation for a public purpose: [2004] EWCA Civ 767.

3. High Court, Administrative Court: Lightman J allowed the residents’ judicial review claim and quashed the removal because the justices lacked jurisdiction under section 15 of the Licensing Act 1964: [2004] EWHC 446 (Admin).

4. Licensing justices: Following an earlier unsuccessful jurisdictional challenge before Owen J, the justices rejected the statutory grounds of objection and granted the special removal.