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

The court considered the meaning of "occupied . . . for any other public purpose" in section 15(1)(a) of the Licensing Act 1964 in the context of a local authority acquisition of licensed premises under the Town and Country Planning Act 1990 (sections 226 and 227). The House held that where a public authority obtains legal possession of licensed premises with a view to putting them to a future public use, that possession is sufficient to amount to "occupation" for the purposes of section 15. "Mere public ownership" of a vacant property is not enough, but possession that excludes the licensee is. The question whether a compulsory purchase order made but unconfirmed created an immediate "about to be occupied" situation was answered by treating actual possession (vacant possession on completion of sale) as occupation; the appeal was therefore allowed. The House also considered (and rejected) a preliminary submission that the appeal was moot following repeal of the 1964 Act by the Licensing Act 2003, finding the appeal could still affect costs and an outstanding damages claim arising from a cross-undertaking.

This appeal arose after Newcastle City Council acquired Mim's Bar from Ultimate Leisure Group plc on 15 November 2002 in the context of a redevelopment scheme under sections 226 and 227 of the Town and Country Planning Act 1990. Ultimate applied under section 15 of the Licensing Act 1964 for a special removal of its old on-licence to the Gresham Hotel. The magistrates granted the special removal but the decision was quashed on judicial review by Lightman J ([2004] EWHC 446 (Admin)) who held the justices lacked jurisdiction because the premises were not "occupied" or about to be "occupied" for a public purpose within section 15(1)(a). The Court of Appeal ([2004] EWCA Civ 767) affirmed.

The appellants (Ultimate) appealed to the House of Lords. The issues were (i) whether the Council was "occupying" the premises for a public purpose when it became owner (and whether a confirmed compulsory purchase order or practical certainty was required), (ii) whether "about to be occupied" applied on the facts, and (iii) whether the appeal was moot given repeal of the Licensing Act 1964 by the Licensing Act 2003.

The House held that the statutory purpose of the special removal provisions is to address events outside the licensee's control making the premises unavailable for licensed business. On that construction, legal possession by a public authority destined to put premises to public use is occupation for the purposes of section 15, because such possession excludes the licensee even if the authority has not yet used the premises. "Mere public ownership" without possession is insufficient. The House therefore allowed the appeal, finding the justices had jurisdiction to grant the special removal. The House declined to dismiss the appeal as moot because the outcome could still affect costs and a damages claim based on a cross-undertaking; the respondents were ordered to pay the appellants' costs here and below.

Appeal allowed. The House held that where a public authority obtains legal possession of licensed premises with a view to putting them to future public use, that possession suffices as "occupation" for the purposes of section 15(1)(a) of the Licensing Act 1964; mere public ownership of a vacant property is not enough. The justices therefore had jurisdiction to grant the special removal and the Court of Appeal's contrary conclusion was reversed. The preliminary objection of mootness was rejected because the appeal could still affect costs and an outstanding damages claim.

High Court (Administrative Court): Lightman J quashed the special removal [2004] EWHC 446 (Admin); Court of Appeal: judgment of Jacob and Maurice Kay LJJ and Sir Martin Nourse affirmed the quashing [2004] EWCA Civ 767; House of Lords: appeal allowed [2006] UKHL 7.