Belfast City Council v. Miss Behavin' Limited (Northern Ireland)

The House of Lords allowed the council's appeal and restored the judge's dismissal of the respondent's judicial review challenge. The Lords held that (i) a council exercising the Schedule 2 licensing regime under the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985 may, in principle, take into account objections received after the 28-day period prescribed by paragraph 10(15), subject to ordinary administrative law limits and the obligation to communicate to the applicant any late material it proposes to consider (paragraphs 10(16), 10(18)); (ii) when a public authority's decision under the Order engages Convention rights, the court must determine whether the decision in substance was compatible with those rights under section 6 of the Human Rights Act 1998 rather than quash a decision merely because the decision-maker did not recite or articulate Convention reasoning; and (iii) on the facts the refusal under paragraph 12(3)(c) (that the appropriate number of sex establishments in the locality was nil) and the additional personal grounds for refusal were rational and not a disproportionate interference with Article 10 or Article 1 of Protocol 1 rights.

This was an appeal from the Northern Ireland Court of Appeal ([2005] NICA 35) against the grant of relief quashing Belfast City Council's refusal of a sex establishment licence for premises in Gresham Street, Belfast. The respondent company applied for a licence under Schedule 2 to the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1985. The council had previously determined that the appropriate number of sex establishments in the locality was nil and, after committee and council consideration, refused the application. Weatherup J dismissed the respondent's judicial review claim ([2004] NIQB 61); the Court of Appeal allowed the appeal and quashed the decision on procedural and Convention grounds.

The primary issues before the House were:

• whether the council was entitled to take into account objections received after the 28-day statutory period in paragraph 10(15) of Schedule 2;
• whether the council's decision was unlawful because it did not demonstrate that it had considered the applicant's Convention rights (Article 10 ECHR and Article 1 of Protocol 1), and if so whether the court should quash the decision on that procedural ground or assess the substantive compatibility itself under section 6 of the Human Rights Act 1998.

The House held that paragraph 10(15) creates rights and duties in relation to in-time objections but does not prohibit the council from considering late objections; ordinary administrative law principles govern the admission of late material and fairness requires that the applicant be informed of any late material the council intends to rely on. On the human rights point the Lords followed precedent (notably R (SB) v Governors of Denbigh High School) and held that the court must decide whether a decision was in substance compatible with Convention rights; it is not sufficient to quash simply because the decision-maker did not expressly articulate Convention analysis. Applying these principles, the House concluded that the council's decision was rational, within its margin of appreciation and not a disproportionate interference with Article 10 or Article 1 of Protocol 1; the appeal was therefore allowed and the application for judicial review dismissed.

Appeal allowed. The House restored Weatherup J's order dismissing the respondent's application for judicial review. The Lords held that (1) a council may, subject to ordinary administrative law, take into account late objections under Schedule 2 of the 1985 Order and must, if it proposes to rely on late objections, give the applicant adequate notice of their terms; (2) under the Human Rights Act 1998 the court must determine in substance whether Convention rights (Article 10 and Article 1 of Protocol 1) were infringed rather than quashing a decision merely because the decision-maker did not expressly state Convention reasoning; and (3) on the facts the council's refusal under paragraph 12(3)(c) and the additional personal grounds was rational and not disproportionate, so there was no breach of Convention rights.

This was an appeal to the House of Lords from the Northern Ireland Court of Appeal decision (Court of Appeal allowed the applicant's appeal: [2005] NICA 35). The underlying judicial review was heard by Weatherup J who dismissed the application ([2004] NIQB 61). The House of Lords allowed the council's appeal and restored Weatherup J's order.