Yacht Hotel Ltd v Licensing Assembly

JurisdictionJersey
CourtCourt of Appeal
JudgeSmith, Carey and Rokison, JJ.A.
Judgment Date07 June 2002
Neutral Citation[2002] J.Unrep 114
Date07 June 2002
COURT OF APPEAL
Smith, Carey and Rokison, JJ.A.

D.J. Benest for the appellant;

Miss S.C. Nicolle, Q.C., Solicitor General, for the Licensing Assembly.

Additional cases cited by counsel:

Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680.

Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374; [1984] 3 All E.R. 935.

Esteem Settlement, In re, 2001 JLR 169.

Jersey New Waterworks Co. Ltd. v. Grouville Rate Assessment Cttee., 1994 JLR 197.

R. v. Nailsworth Licensing Justices, ex p. Bird, [1953] 2 All E.R. 652.

Legislation construed:

Licensing (Jersey) Law 1974, art. 1(1): The relevant terms of this paragraph are set out at para. 5.

art. 6(10): The relevant terms of this paragraph are set out at para. 5.

art. 6(11): The relevant terms of this paragraph are set out at para. 8.

art. 9(1): The relevant terms of this paragraph are set out at para. 10.

art. 47: The relevant terms of this article are set out at para. 3.

Hotels—licensing—residents' bar—unconditional removal of "public bar" designation from hotel with fourth category licence under Licensing (Jersey) Law 1974 grants legal right to sell alcohol to public until 1 a.m.—Licensing Assembly without jurisdiction to reimpose "public bar" designation on public interest grounds

Intoxicating Liquor—Licensing Assembly—procedure—no jurisdiction to consider matters outside terms of reference made by Attorney General under Licensing (Jersey) Law 1974, art. 9(1)—no power to reimpose "public bar" designation on hotel premises on public interest grounds if no legitimate evidence in support

The appellant sought judicial review by the Royal Court of the decision of the Licensing Assembly to re-designate one of the bars on its premises as a "public bar."

The appellant held a fourth category licence under the Licensing (Jersey) Law 1974 which entitled it to sell alcohol to residents of its hotel at any time, and to the public until 1 a.m. One of the bars on the premises was designated as a "public bar," requiring it to close at 11 p.m. The appellant applied to the Licensing Assembly for the removal of the public bar designation. The Assembly granted the application, without imposing any conditions, in the mistaken belief that the bar would be used only by residents. In fact, the appellant openly advertised that the bar was open to the public until 1 a.m.

Under art. 9(1) of the 1974 Act, the Attorney General submitted a reference to the Licensing Assembly which described the appellant's licensing history and certain areas in which its business conduct had been unsatisfactory since the public bar designation had been removed. He invited the Assembly to determine whether it wished to reimpose the designation. Prior to the hearing, an agreed statement of facts submitted by the appellant and the Attorney General stated that the appellant's business was now conducted satisfactorily.

At the further hearing, the Licensing Assembly reimposed the designation on the grounds that (a) there had been a genuine misunderstanding as to the nature of the original application; (b) the removal of the designation had established a late-night public house outside the categories of the 1974 Law; (c) the appellant had made inappropriate use of the privilege of being able to keep a bar open beyond the permitted hours of a first category licence, i.e. 11 p.m.; and (d) it was neither in the public interest nor within the intention of the legislature to allow this to continue.

The Royal Court (Hamon, Commr.) refused the appellant's application for judicial review of the Assembly's decision on the ground that the reference submitted by the Attorney General was sufficiently general to permit the Assembly's consideration of the matter, and that it was within the jurisdiction of the Assembly to reimpose the public bar designation.

The appellant appealed against the decision of the Royal Court on the grounds that, inter alia, (a) the Assembly had acted ultra vires by revisiting the designation issue, as it had no jurisdiction to consider matters beyond that raised by the Attorney General's reference, i.e. the conduct of business on the premises; and (b) it had a legal right to operate a bar which was open to the public until 1 a.m. under a fourth category licence.

Held, allowing the appeal:

(1) The Licensing Assembly had no jurisdiction to consider the re-designation of part of the appellant's premises as a public bar at the second hearing as its jurisdiction to consider matters on a submission by the Attorney General under art. 9(1) of the 1974 Law was limited to those matters specifically raised, namely the appellant's misconduct and its licensing history. As none of the reasons given by the Assembly for reimposing the public bar designation upon the appellant's premises related to the allegations of misconduct, it was apparent that the Assembly had considered matters beyond its jurisdiction in reaching this decision. Furthermore, (a) the possible reimposition of a public bar designation was a potential consequence of the consideration of another matter and therefore could not, of itself, form the basis of a submission by the Attorney General; and (b) the licensing history could not constitute "a matter relating to a licence," as it concerned the licence itself ( paras. 20-22).

(2) Although it was not necessary to decide the matter, the removal of the public bar designation did not establish a public house outside the categories of the 1974 Law. The appellant's premises were subject, in their entirety, to the requirements of a fourth category licence. The unconditional removal of the public bar designation removed a restriction from one part of the appellant's premises, granting it a...

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