Leisure Sector News Round-up
By Ben Du Feu
In the last year, Cornerstone’s leisure team has been instructed in numerous high-profile cases, including the re-opening of the world-famous London club Fabric; Uber’s legal challenge against Transport for London (TfL); the first appeal under the new provisions relating to summary reviews; and R (Hemming v Westminster City Council), the first licensing case to reach the Supreme Court and the European Court.
The team act on behalf of a wide range of clients from developers and industry operators, local authorities, the police, national regulators, trade associations to community groups and individuals. As mentioned in the Editor’s address, Cornerstone Barristers has been appointed to the Gambling Commission’s standing panel of barristers’ chambers to provide legal advice and representation.
This is a short round-up of just some of the cases members of the team have been involved in.
In February 2018, the High Court quashed Knowsley Metropolitan Borough Council’s intended use policy for private hire drivers. The case is of interest to licensing authorities and industry operators alike.
Following an increase in applications for private hire driver licences from outside its area, the Council adopted a policy that required drivers to sign a declaration that they intended to drive predominantly in the Council’s area and that they faced non-renewal or revocation of licences if in fact they drove predominantly elsewhere.
The case for Uber presented in Court was that the private hire licence is a licence to drive anywhere. It is not confined in any way to the local area. That is made clear by section 75(2) of the Local Government (Miscellaneous Provisions) Act 1976. The statutory control does not a concern where a driver may drive. It is simply that for each trip the “trinity” of operator’s, vehicle and driver’s licence has to be in place. When it is in place, the driver has a “right to roam”. Furthermore, there is no discretion to refuse a licence to a driver who passes the criteria in section 51 of the Act, including the “fit and proper person” criterion. Mr Justice Kerr accepted these arguments rejecting the Council’s submission that the fit and proper person criterion was an elastic concept, stretching beyond personal characteristics.
Philip Kolvin QC and John Fitzsimons acted for Uber Britannia Limited, instructed by Martyn Scott and Hannah Metcalfe of DLA Piper UK LLP.
Festivals in parks became established in the 1960s, but have become an important financial resource for authorities struggling with austerity, particularly since parks receive no statutory funding. At the same time, festivals have increased in popularity, and are a firm part of the calendar for music lovers, providing a variety of musical artists in informal, green open settings.
In November 2017, the Court of Appeal dismissed a challenge to the ability of local authorities to hold music and other festivals in parks. Although it involved a London authority, the case is important for local authorities nationwide.
The called planning application was for the expansion of The Mall, an out of town shopping centre at Cribbs Causeway near Bristol. The proposal included approximately 35,000sqm of new shops, 9,000sqm of new restaurants and cafes and a new 5,000sqm hotel. Two of the key issues at the inquiry were whether the proposals complied with the sequential test for main town centre uses (as set out in the NPPF) and what the retail impacts of the scheme would be.
Richard Ground QC and Ben Du Feu represented a neighbouring planning authority during a four-week planning inquiry. Their client was opposed to the scheme on numerous grounds including the question of sequential site selection and the retail impacts of the scheme, particularly on Bristol city centre. A decision on the application will be made by the Secretary of State.
Islington Council’s Licensing Sub-Committee has imposed significant new restrictions on the license of Club Reina, a late night venue that, together with its attached restaurant Best Mangal, occupies a prominent location on Smithfield Market adjacent to the well-known nightclub Fabric.
Since September 2016 there had been 17 reports of alleged criminal offences at the premises, including numerous assaults, some involving actual and grievous bodily harm, affray and public disorder. Matters culminated in a serious incident on Charterhouse Street in the early hours of 1 September 2017, when widescale disorder erupted between clientele from the club and members of the public, armed with baseball bats, chains and other weapons.
Following a hearing on 9 November 2017, the Council’s Sub-Committee agreed with the Police that it was appropriate and proportionate to overhaul the licence by adding numerous additional conditions and imposing a range of restrictions on the premises’ licensable activities.
Club Reina lies in the heart of the Clerkenwell cumulative impact area created by Islington’s licensing policy, and the facts of this case show how unlawful behaviour by the public combined with poor management of premises can significantly impact areas which are already under stress.
Tara O’Leary acted for the Metropolitan Police, instructed by Sally Gilchrist.