Winning At Altitude

01 Jan 2018

Licensing, Public Law and Judicial Review

In what is thought to be a first, an Appellant has succeeded in overturning a revocation decision of Westminster City Council on appeal.

Altitude is an events space on the 28th and 29th floors of the Millbank Tower in London, with breath-taking views over London. Its licences required the space to be used for private and corporate events. It has hosted some of corporate London’s biggest events, and has not generally been a source of crime and disorder. In 2015, after a violent incident, the licensee undertook to the Police to send them a Form 696 for any future promoted events. Then, in March 2016, the licensee hosted a nightclub style event, which descended into a serious affray, with use of bottles and knives. It was described by the police licensing officer in the case as the worst violence he had seen in Westminster. Worse, not only had no Form 696 been served, but several licence conditions had been breached, including failure to have a DPS, the former DPS having left the month before. Furthermore, venue security had not called the Police, and there was some evidence that a member of management had instructed them not to do so.

Stating that it had no confidence in the management, the Council’s Licensing Sub-Committee of Westminster City Council unhesitatingly revoked both licences. On appeal, this was accepted to have been a correct decision at the time.

The licensee’s case on appeal was that the venue had improved. It had recruited new management and door staff, written new operating procedures, acquired new security equipment and complied with its licences. The result was that there had been no crime and disorder, with the exception of the lawful ejection of an intruder who became violent, in December 2016. The licensee said it had learned its lesson, showed insight and displayed due diligence in complying with conditions and promoting the licensing objectives over a full 12 month period. On that basis, it invited the Council to meet to discuss the future operation of the premises and to accede to the appeal, even offering to pay the Council’s full costs. The offer was summarily rejected.

According to the Council, the period of improvement was of no significance. Its barrister’s skeleton argument stated:

“The Appellant must be very na├»ve to suppose that a mere change of personnel and making a special effort to comply with the terms of its licences over a seven month period will suffice to persuade the Court that the decisions of the Sub-Committee are wrong in a case such as this…. Being on your “best behaviour” for a short period when you are under particular scrutiny and have a lot to lose (or gain) says nothing about you, save that you are not completely stupid.”

The events of December, it was suggested by the Police licensing officer, proved that the licensee was still getting things wrong. It was also claimed that the paucity of crime and disorder might have been explicable by a failure to report it, albeit there was literally no evidence of unreported crime and disorder from any source. CRIS reports of crime and disorder going back for five years (sic) were put into a 1300 page bundle, albeit these showed only very rare violent crime. It was also claimed that the venue was simply unsuitable to be a licensed premises (in general rather than just for nightclub events), notwithstanding that the venue had express planning permission, licences and fire risk assessments. The officer, apart from giving helpful advice following the December incident, was unwilling to enter into dialogue with the venue or appraise its new operating systems, given that there was an appeal pending, so he could not speak to the improvements in the operating system or the safety of the venue under that system from his direct knowledge. Finally, the week before the hearing, the Council also widened the case to complain of the corporate governance of the business going back six years. At the same time, the Council objected to the licensee putting in photographs of the venue, thank you emails from clients and a diary of forthcoming events on the basis that, while having been served four weeks before, they had post-dated service of the evidence in the case. This, then, might be euphemistically be termed a heavily contested appeal.

Further evidence of this came in the pre-trial directions hearing, the Council arguing that eight days was required for the hearing of the appeal, in order that witnesses could be shown the video footage in court, even though the licensee was fully accepting events as described in the Council’s case, including the evidence of 13 witnesses dealing with the affray. After two contested directions hearings, four days were allocated.

The case came before Chief Magistrate Arbuthnot. Commendably, she had pre-read the extensive paperwork in the case, and refused to sit in open court and watch video evidence which she was capable of viewing in her own time. Prompted by her, the site view, evidence and submissions were completed in 1.5 days.

Finding that the Sub-Committee were quite correct to revoke the licence, but also accepting that there had been significant improvement, she decided that the decision of the Sub-Committee was now wrong. Having heard that only 8% of events went beyond midnight, she pulled back the terminal hour to 12.30 a.m. and imposed extra security requirements on night-time events.

The case demonstrates that even the most heavily contested of appeals can, if case managed effectively, be dealt with quickly, so saving time and costs for all parties. It also shows that even the most egregious faults can be cured. Where they have been, there may well be a good argument for dialogue, whether on an open or without prejudice basis, to lock in improvements by way of condition, again saving costs on all sides.

Philip Kolvin QC of Cornerstone Barristers represented the Appellant in the case, instructed by David Crank of DWF.