Gala Casinos Ltd, R (on the application of) v Gaming Licensing Committe for the Petty Sessional Division of Northampton

A licensing authority considering whether existing gaming facilities are insufficient to meet demand must assess the evidence in context, including the characteristics of the market served by the proposed premises. Authorities are not required to adopt a rigid formula for treating a licensed casino that has not yet opened. Their assessment of local conditions attracts particular respect, although the court may intervene for an error of law, failure to consider a material matter or irrationality. A decision-maker’s failure to mention particular evidence does not, without more, establish that it was ignored. An error will not justify quashing where the court is satisfied that the decision would inevitably have been the same.

The claimant casino operators challenged the decision of the Northampton Gaming Licensing Committee dated 20 September 2006 to grant Beacon Casinos Ltd a casino licence. The claimants argued that the Committee had unlawfully disregarded a proposed casino at Commercial Street, Northampton, to be operated by Kerzner International and Aspers. They contended that the Committee had failed to consider material evidence, acted irrationally, and was required to take the proposed casino into account when assessing future demand.

The application was for judicial review under the Gaming Act 1968. Permission was initially refused on paper but granted on renewal. The central issue was whether the Committee had erred in law, or whether any error was material to its decision.

1. Application dismissed. The claimants did not establish that the Licensing Committee had erred in law, failed to consider a material factor or acted irrationally.
2. Under Schedule 2 paragraph 18(2)(b) of the Gaming Act 1968, the relevant question was whether available gaming facilities were insufficient to meet demand. The Committee was entitled to assess the particular market segment addressed by Beacon’s proposed humbler, out-of-town casino.
3. The decision in R v Licensing Justices of the Brighton Crown Court ex parte Sergeant Yorke Casino Ltd demonstrated that licensing authorities were not required to apply a rigid formula to facilities covered by a licence but not yet operating. The court should respect the local knowledge of the primary decision-maker and intervene only where an error of law or other recognised public-law error was shown.
4. The Committee could reasonably treat the Kerzner/Aspers project as insufficiently established to demonstrate that it would meet the particular gap in the Northampton market. The reference to dormancy was imperfectly expressed, but could properly be understood as reflecting uncertainty about when the casino would open and whether it would serve the relevant market segment.
5. The absence of express reference to the Kerzner letter and chronology did not prove that they had been ignored. The documents formed part of the same evidential material as the press release expressly mentioned, and the premises’ completion was known to the Committee.
6. Projected population growth related to the identified market gap and did not require the Committee to assume that the Kerzner/Aspers casino would satisfy that demand. Post-hearing evidence could not demonstrate an error in the decision made in September 2006.
7. In any event, applying R (Smith) v North East Derbyshire Primary Care Trust, any error would have been immaterial if the Committee would inevitably have granted Beacon’s application. Probability alone would not suffice, but the evidence established that the decision would inevitably have been the same.

This was a first-instance judicial review application. Permission was refused on the papers by Bennett J and granted on renewal by Calvert-Smith J on 21 March 2007.