Licensing Act 2003 appeals: is JR available if time is short?

01 Jan 2018

Public Law and Judicial Review

Can judicial review be used to get a quicker decision than appealing to the Magistrates’ Court in a Licencing Act 2003 case?

What are the obligations on a sub-committee in terms of reading supporting documentation?

In a decision which may be of considerable interest to licensing practitioners, Mr Justice Ouseley yesterday refused permission for (and dismissed) a claim for judicial review of a sub-committee’s decision to refuse a time-limited licence for a music festival in Essex, following a rolled-up hearing listed for urgent consideration – R (Woodward) v Thurrock Borough Council.

The Claimant wished to hold a music festival over two days in August but the application attracted representations from the Police, the Licensing Authority and local residents. In the run-up to the sub-committee hearing the Claimant submitted, piecemeal, a large number of documents including various iterations of an Event Management Plan in the hope that the representations could be satisfactorily addressed. Documentation was still being submitted on the day of the hearing such that when the hearing commenced the sub-committee had not read the full, 300+page EMP, and the Police and LA had not had time to consider the most recently-submitted additions.

The Claimant – represented by counsel – nonetheless presented his case to the sub-committee but failed to persuade them that the safety concerns expressed by the Responsible Authorities had been satisfactorily addressed by the submitted documentation. They refused the application.

Instead of appealing, a polite inquiry was made to Essex Magistrates’ Listing Office as to the ‘realism’ of getting a substantive hearing before the festival was due to take place, which was met with an unsurprising answer that it was unlikely. Without more, the Claimant applied for JR and urgent consideration, arguing that he could not obtain a satisfactory remedy from the magistrates’ court. He argued that the sub-committee had gone wrong in not reading, in full, the EMP and associated documentation prior to the hearing, and that it had been unfair for his counsel to have been stopped (it was alleged) from asking questions of the Licensing Officer on the most recently-submitted material, which he had not had time to consider.

The judge dismissed these arguments. In a robust judgment he held:

It is not appropriate to seek JR on the basis that to do so would be quicker than appealing to the magistrates’ court in the way that Parliament plainly intended;Further, the attempt to get the matter listed quickly by the magistrates’ court had been insufficient, amounting to no more than a polite inquiry;The urgency was, in any event, of the Claimant’s own making, having applied for his licence less than four months prior to the scheduled start date for the festival;There was no requirement that a sub-committee read all supporting documentation prior to a hearing – their job was to consider the representations made, and decide what steps were appropriate in the light of them. They were entitled to rely on what was said by the parties about the documentation;In any event the Claimant was entitled and able to make such submissions as he wished as to how the documentation he had provided met the concerns expressed by the Responsible Authorities – including taking them to relevant extracts or passages – there was no unfairness; andIn respect of the allegation of being prevented from asking questions, even if that was made out (which it was not, on the minutes) there was no unfairness – if an officer has not read a document, it is not unfair to move the hearing on, because an applicant in such circumstances may simply make submissions to the sub-committee about the effect of the new documentation.

The claim was dismissed with costs. Josef Cannon acted for the defendant, Thurrock Borough Council