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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Banyan Retail LImited -v- The Licensing Assembly [2016] JRC 031 (04 February 2016) URL: http://www.bailii.org/je/cases/UR/2016/2016_031.html Cite as: [2016] JRC 31, [2016] JRC 031 |
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Before : |
The Hon Michael Jacob Beloff, QC., Commissioner, sitting alone. |
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Between |
Banyan Retail Limited |
Applicant |
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And |
The Licensing Assembly |
Respondent |
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Advocate J. D. Garrood for the Applicant.
HM Solicitor General for the Respondent.
judgment
the commissioner:
1. On 18th June, 2015, the Licensing Assembly comprising the Deputy Bailiff and Jurats Fisher, Kerley, Marett-Crosby, Milner, Ramsden and Sparrow (the "respondent") sat to consider, inter alia, an application by Banyan Retail Limited (the "applicant") for the grant of 1st and 3rd category provisional licences in respect of The Spice House and Cheffins Restaurant, Le Neuve Route de St Aubin, St Brelade (the "premises") pursuant to the Licensing (Jersey) Law 1974 (the "1974 Law"). The respondent declined to grant a 1st category provisional licence (the "decision") but granted a 3rd category provisional licence. The applicant applies for a judicial review of the decision, leave having been granted on 18th August, 2015, by Commissioner Clyde-Smith.
2. The applicant intends to operate the premises as an Italian/American style diner (i.e. a restaurant) but seeks the provisional 1st category Taverner's licence to provide flexibility in the way in which the premises are used. I cannot do better than quote verbatim from the transcript of the submissions made by Advocate Garrood on behalf of the applicant to the respondent:-
''... at the moment, the application is indeed for Category 1 and Category 3 premises, the licences throughout the premises. The reason for this is that this provides flexibility to the way in which the premises can be used. Although it's predominately a restaurant, people sitting in the garden at front of the building in the summer, having a drink, would then be able to go to the bar at the back of the premises and buy their own drinks without having table service. And it is of course very difficult for staff to determine whether someone is, at the moment, able to sit there and have access to all the facilities the restaurant provides and to know whether or not they are eating or drinking or what they're doing. So the purpose is to provide a flexible offering throughout the entire premises which means that the, there is no potential for an accidental sale to someone who would otherwise be entitled to be there and entitled to use the facilities, but might actually, buy, by buying a drink not to be complying with the licensing laws, so that sort of flexible approach is what's needed, it's also in response to the location, which is a tourist location, people might come out for an evening and they might initially sti there and have a drink in the garden, they then might thereafter want to have something to eat, and there is no confusion between the waiting staff about whether they have to, potentially, from one line of reasoning, leave the premises and then come back again immediately in order to actually sit down and have something to eat."
3. On 4th June, 2015, the application was approved by the Parish Assembly by a majority show of hands (24 in favour and 11 against).
4. The reasons for the decision are set out at paragraphs 8, 9 and 10:-
"8. We have considered the application carefully and in particular have had regard to the plans before us. It is not clear from the plans which part of the areas are intended to operate as a bar and servery and which part is a public bar. Moreover we do not immediately see how the premises lends itself to people sitting around outside and then walking in to purchase drinks to take out.
We remind ourselves that under a 3rd category licence, it is permissible to serve alcohol to persons on those premises who are not dining there provided the alcohol is to be consumed on the premises, they are seated at a table, and they are served by waiting staff. This it seems to us is very close to the business model suggested by Advocate Garrood in his application.
We are concerned that the exterior part of the premises may effectively become a drinking venue with the possible attendant noise."
5. The 1974 Law provides, so far as material, as follows:-
6. It is the not altogether felicitously drafted Article 6(9) of the 1974 Law which sets out the approach to be applied by the respondent in the grant or refusal of a licence of any kind. I make two observations. First, it is for an applicant to satisfy the Licensing Assembly that an application should be granted. Second, the concept of the interests of the public in general is of considerable elasticity, enabling the Licensing Assembly to assess the pros and cons in terms of public (as distinct from private) interest in the grant of a licence.
7. The essence of the case advanced by the applicant is not that the respondent did not apply the test in Article 6(9) i.e. by not having regard to the public interest or the nature of the business to be conducted at the premises for which the licence was sought or their suitability therefor - although Advocate Garrood suggested that the reasoning of the respondent was somewhat opaque. It was rather that the respondent's evaluation of those factors and the procedure deployed in making that evaluation were flawed.
8. As to the reasoning a decision of an administrative body such as a Licencing Assembly is not required to model itself on that of the Privy Council or indeed of any court of law, especially since it habitually deals with several applications in the course of a session and may aspire, where possible, not to reserve its determination. It is only required, in my view, to say sufficient to enable an applicant and the interested public to understand why it has (or has not) acceded to an application.
9. It is also imperative to read such a decision as a coherent whole. Moreover, as Lord Wilberforce said about reasons given by the Secretary of State for (in essence) imposing a scheme for comprehensive education upon a local authority, such a decision is "to be read fairly and in bonam partem. If reasons are given in general terms, the Court should not exclude reasons which fairly fall within them; allowance must fairly be made for difficulties in expression". Education Secretary v Tameside Borough Council [1977] AC 1014 at 1048E. It is not a statute or trust deed.
10. The decision, if not as crystal clear as it might have been, had it been subject to careful editing and polishing, was in my view sufficiently clear to fulfil its purpose. The respondent was concerned about the risk of noise by persons drinking in in the exterior of the premises - the phrase "drinking venue" was not, as Advocate Garrood suggested, pejorative or moralistic but a neutral synonym for a place where people drink- and concerned too that the premises in their proposed form (the product of an amalgamation and development of the two existing restaurants the Spice House and Cheffins both with category 3 licences), were not best suited to persons coming from outside to buy drinks inside and then retracing their steps, if only, because as the plan showed, in order to do so they would need to go through the restaurant. The respondent also considered that the grant of a category 3 licence would enable those who intended to dine to buy drinks for concurrent consumption with their meal, thus fulfilling the chief purpose of the development.
11. The thrust of the applicant's main challenge was that there was no sufficient evidence to justify the conclusion that there was a real risk of noise or at any rate added noise to that which already existed at the two restaurants. As Advocate Garrood put it pithily in his skeleton argument:-
"As to;
(i) The number of and type of licenced premises in St Aubin;
(ii) The nature and type, if any, of anti-social behaviour in St Aubin;
(iii) The demographic and numbers of the visitors to St Aubin who are likely to use the various licensed premises;
(iv) That there is an excess of demand in St Aubin which is presently limited by the number of premises such that a further 1st Category Licence would lead to an increase in visitors to St Aubin; or Statistics of crimes associated with licenced premises of various types in St Aubin, although it is noted that neither the Statues of Jersey Police or the Honorary Police objected to the licence.
Evidence on these points could have been put before the respondent but was not".
12. In my view the argument, while accurate in fact, was unsound in law. The respondent had before it minutes and a record of the meeting of the Parish Assembly the substantial accuracy of which was not challenged. Those who are recorded as voicing objections emphasised their concerns as to possible noise, which, while described by Advocate Garrood somewhat dismissively as anecdotal, were in fact born of their own experience. The respondent was also entitled to use its members' own experience and common sense and to take judicial notice, if such be necessary, of the fact that those who drink ordinarily make more noise than their sober counterparts. That was sufficient to justify its conclusion on the risk of noise.
13. Advocate Garrood helpfully drew to my attention the endorsement by the Divisional Court presided over by Lord Bingham CJ in Carter v Eastbourne Borough Council Vol.164 JP Reports ("Carter") of the description of the concept of judicial notice by the late Professor Sir Rupert Cross in his classic work on Evidence at p.279-280:-
14. In Carter the Justices had purported - wrongly in the Court's view - to rely on their own experience of gardens and woodlands to opine on whether the trees which had been uprooted and were the subject of a preservation order had existed at the time it was made (and so were protected) or only grown thereafter (and so were not). I see no read across from that case to this. The rate at which trees grow is a matter for expert evidence; that drinkers may raise their voices is not. I draw attention to the fact that the Licencing Assembly was careful to restrict its concerns to external noise and therefore the applicant gained no assistance from the report of N V Bate Associates who considered only the (absence of) risk of noise from the interior. Nor did the applicant's argument that there would be no increase in noise over and above what there had always been at the exterior of the restaurants have adequate force. Under a Taverner's Licence people could drink without eating; and, because they did not need to buy food, would have more money to spend on alcohol. Under a restaurant licence, as the respondent noted, people could only buy drinks if satisfying three conditions listed in the decision at paragraph 10. The applicant in comparing the status quo ante with the future proposed status was not comparing like with like.
15. There was some discussion as to whether the way in which the respondent addressed the noise issue in terms of possibility reached an appropriate threshold to engage Article 6(9)(a) of the 1974 Law at all. But rightly Advocate Garrood did not press the point. Subject only to de minimis considerations, the risk of noise is sufficient.
16. The respondent also took into account - or may have done - two letters from a Mrs Olsen and a Mrs Holland-Prior, the former as Chair of the St Aubin's Residents Association writing on behalf of several residents. Both letters emphasised noise concerns. Advocate Garrood submitted that the letters were inadmissible because what a Licensing Assembly could take into account was limited by the terms of Article 6(4) and (5). However Article 6(5) is concerned with the duty of the Judicial Greffier to place certain material before the Licensing Assembly and Article 6(6), (7) and (8) also enable or oblige other officers to assist it. There is nothing restrictive in those provisions; au contraire.
17. Article 6(4) for its part is only concerned with rights of audience before the Licensing Assembly. Both the letter writers referred to would, had either chosen or been able to do so, been entitled to address the Licencing Assembly under Article 6(4)(b). It does not follow that neither can give evidence in any other way. That theirs is written evidence goes to its weight not to its admissibility. There is nothing in the 1974 Law which, in my view, limits the material to which the Licencing Assembly can have regard or the form in which it is provided. As long as it is relevant and, subject always to the imperatives of fairness, it is admissible.
18. In Club Dragon Limited [2013] JRC 069 the Licensing Assembly held:-
Although the conclusion was a matter of agreement I respectfully endorse it. The right accorded to a Licensing Assembly to regulate its own procedure is consistent with the analysis of Article 6(17) (and see also In the matter of La Nautique Bar and Restaurant Limited [2010] JRC 066 para 6). It also reflects the hallowed practice on the mainland (Alcohol and Entertainment Licensing Law 2nd Ed Manchester, Poppleton and Allen paras 8.42-8.47).
19. Advocate Garrood also argued that that the applicant had a substantive legitimate expectation that their application would be acceded to which could only be denied by cogent reasons. Legitimate expectations in public law characteristically arise from promise or practice (see Paponette v AG of Trinidad and Tobago [2012] 1 AC 1 paras 34-36) and can only be overridden by sufficient public interest (ibid paras 37-38). The Licensing Assembly had - it was common ground - made no promise and has no practice (any such practice in the past appears to have been adverse to the grant of such licences). Advocate Garrood had to pin his forensic flag to the mast of the favourable recommendation of the Parish Assembly.
20. However, pursuant to Article 6(11) the Licensing Assembly shall have regard to that recommendation which means only that the Licencing Assembly must factor it into their deliberations as the fruit of a local democratic process, which it clearly did, referring to it at several junctures in its decision. It is for the decision maker to attach such weight, if any, as it sees fit to it (see City of Edinburgh Council v Scottish Secretary [1998] 1 All ER 174 per Lord Hope at 177). The 1974 Law adds belt to braces by providing specifically in the same Article that the Licensing Assembly shall not be bound by the recommendation of the Parish Assembly (I was shown previous decisions of Licensing Assemblies who have also departed from the views of the Parish Assembly e.g. Sail Loft Gorey Ltd [2015] JRC 004 at para 6). Moreover, in principle the promise of a third party cannot, in my judgment, bind a decision maker independent of that party.
21. Finally, as already noted, public interest considerations can defeat a substantive legitimate expectation; and it is public interest considerations which under the 1974 Law guide the Licensing Assembly. It follows therefore that there was no duty on the respondent to explain why it is departing from the recommendation of the Parish Assembly (which itself was not elaborated). In any event the decision speaks for itself.
22. The last arrow in Advocate Garrood's quiver was fairness. I say at once that, although the master of its own procedure, a Licensing Assembly must always act fairly. Insofar as the proceedings officer provides a briefing note with material to the Licensing Assembly such material should presumptively be made available to the applicant so that it can be addressed (I am not considering such possible exotic reasons for non-provision such as public interest immunity, which will arise, if ever, only rarely). Advocate Garrood was provided with the two letters a mere five minutes before the hearing. He could have asked for a brief adjournment; but, in fact, as the record shows, addressed both with efficiency. He was not provided with a bundle of authorities. Although in theory the law is accessible to all I see no reason why an applicant should not be told what previous decisions a Licensing Assembly may be expressly invited to consider. The same applies to any written guidance (in this instance Carey Olsen was directly informed about the old practice to which I alluded above). In point of fact this argument therefore had no purchase.
23. I appreciate that, absent any objection from the relevant officers and with the apparent support of the Parish Assembly, the applicant is understandably disappointed by the decision, but has at least the consolation that the respondent in paragraph 12 said:-
"Naturally if experience shows that there is a need and justification for a licence of the first category in connection with these premises then there is nothing to prevent such an application being made on a future occasion."
24. Given my decision, the issue of remedy does not arise; but for completeness I should say this. It was the applicant's contention that the decision was unlawful and so liable to be quashed and that therefore I should remit the decision to the respondent with directions that the application for a 1st Category Licence should be granted. It is common ground that only the respondent may grant a liquor licence - see Article 6(1) of the 1974 Law, the definition of "Licensing Assembly" in Article 1(1) of the same Law and paragraphs 1 to 6 of the case of In the matter of La Nautique Bar and Restaurant Limited [2010] JRC 066. If the Royal Court is satisfied that there are grounds for quashing such a decision, the Court may in remitting the matter to the Licensing Assembly add a direction that the Assembly should reconsider it and reach a fresh decision in accordance with the findings of the Court: see RCR 16/10(3) - the so-called- in terms of mainland jurisprudence - Padfield mandamus. Such order may, in exceptional circumstances, leave the Licensing Assembly with no option but to grant the licence, but the very fact of remission respects the constitutional proprieties.
25. For the above reasons the application for judicial review is refused.
26. Any submissions on consequential matters should be submitted to me within 14 days of the handing down of this judgment.
