Merlot 73 Ltd, R (on the application of) v City of Westminster Magistrates Court & Anor

Permission for judicial review of a licensing appeal decision requires an arguable public-law error. On an appeal from a licensing authority, the magistrates’ court conducts a full rehearing on the evidence, but must treat the authority’s decision as a relevant consideration and reverse it only if satisfied that it was wrong. The weight given to the authority’s reasons depends on their fullness and clarity, the issues and the evidence. Licensing conditions addressing crime and disorder must be proportionate. Considering whether a less intrusive measure could achieve the aim and whether a fair balance has been struck are substantially overlapping inquiries. A policy is adequately considered where the decision-maker addresses its relevant purpose and explains why the chosen condition is consistent with it.

Westminster City Council’s licensing sub-committee imposed three conditions on a nightclub’s licence after a review prompted by crime and disorder: no glass containers, recorded music only until 3 am, and no admission after midnight. The magistrates’ court dismissed the licensee’s statutory appeal after an eight-day rehearing.

The licensee sought judicial review of that decision, alleging that the district judge applied the wrong test, gave excessive weight to the sub-committee’s decision, failed to apply proportionality, and failed to have regard to the council’s policy on winding-down periods. The court also considered whether an interim stay should continue pending determination of permission.

1. Interim stay. An urgent application for interim relief must be served on the defendant and interested parties. In an urgent case, the applicant should also notify the respondent informally by telephone or email unless secrecy is essential. Notification of the judicial review alone, without identifying the interim application or supplying the relevant papers, did not provide a proper opportunity to make effective representations. The stay therefore ceased when permission was refused.
2. The applicable question on continuation of the stay was whether there was a serious issue to be tried and, if so, where the balance of convenience, including the wider public interest, lay. There was a significant public interest in bringing conditions addressing a serious continuing crime and disorder problem into effect. The decisive issue was whether permission should be granted.
3. The district judge had applied the correct approach under R (Hope and Glory Public House Ltd) v City of Westminster Magistrates Court [2011] EWCA Civ 31. The appeal was a full rehearing, but the licensing authority’s decision remained relevant and should be reversed only if wrong. The district judge’s reference to the “real issue” described the parties’ case; it was not the legal test.
4. The absence or limited nature of the sub-committee’s reasons did not invalidate the appeal decision. The weight given to those reasons was for the district judge, taking account of the fullness and clarity of the reasons, the nature of the issues and the evidence. He properly considered both the reasons given and the absence of reasons.
5. The proportionality challenge was not arguable. The inquiries whether a lesser measure could achieve the aim and whether the conditions struck a fair balance substantially overlapped. The district judge considered each disputed condition against the licensing objectives and evidence. Conditions falling short of closure or reduced core hours could rationally constitute a proportionate and targeted response.
6. The district judge had regard to the council’s winding-down policy. He was entitled to conclude that music could cease when alcohol sales ceased, and that a winding-down period could begin earlier. The claim was not arguable and permission was refused.

First-instance judicial review decision. The claim concerned the decision of District Judge Fanning in Westminster Magistrates Court dated 9 April 2013, which dismissed the statutory appeal against the licensing conditions.